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The opinion of the court was delivered by
Marshall, J.:
The action is one by the plaintiffs, indorsees of a negotiable promissory note signed by the defendants, to foreclose a mortgage given to secure its payment. Judgment was rendered in favor of the defendants, and the plaintiffs appeal.
The plaintiffs alleged that they were the holders of the note in due course, having acquired it by indorsement before maturity for valuable consideration and without notice of any defect therein. There were two defenses — one that the note and mortgage had been procured by fraud and that the plaintiffs procured the note by assignment, and the other that the note had been given for speculative securities, stock in a corporation, and that the corporation had not obtained permission to sell its stock in the state of Kansas. The defendants filed a cross petition in which they asked that their title to the land be quieted. The answer and the cross petition were verified. The execution of the note and mortgage was admitted in the answer and cross petition.
The court submitted the issues to a jury, which answered special questions as follows:
“1. Did either of the plaintiffs or their agent, who procured said note from Savage Harvester Company, know, at the time of purchasing the same, any of the facts under which McVey signed said note? A. Yes.
“2. At the time of purchasing said note did either of plaintiffs personally have any knowledge of the facts or circumstances surrounding the procuring of the note from defendant McVey? A. Yes.
“3. If you answer question 2 in the affirmative, then you may state which of said plaintiffs had such knowledge, and you may also state the substance of what was known to plaintiff or plaintiffs at the time of making said purchase relative to the facts and circumstances under which said note was given. A. Weir, through his partnership with Nelson, who was a partner of- Hall, puts him in a position to know all facts concerning the Savage Harvester Company.
“4. Was either of plaintiffs told by any person prior to making said purchase of the note in suit, or informed in any manner at the time of or prior to the purchase of said note that the note was taken in the first instance as the property of Savage Harvester Company? A. Yes.
“5. Did either of plaintiffs or their agent who purchased said note know that either the Salina Motors Company, or Savage Harvester Company, was selling stock in Kansas in violation of blue-sky law, at any time? A. According to their testimony, they did not care.
“6. Did either of plaintiffs or any agent of theirs know at the time of purchasing said note that it was given in consideration of the purchase of stock in any company? A. Yes.
“7. Was the note in suit indorsed, ‘Pay to the order of Savage Harvester Co.’ ‘Salina Motors Co. L. S. Weller’ before November 18, 1921? A. No.
“8. Was the note in suit indorsed ‘The Savage Harvester Co. F. H. Hall’ before November 18, 1921? A. No.
“9. Did the plaintiffs complete the purchase of the note sued on on or about the 19th of May, 1921? A. No.
“10. What did plaintiffs pay for said note? A. According to plaintiffs’ testimony, $2,500.
“11. From whom did plaintiffs purchase said note? A. Savage Harvester Company.
“12. Was there any bad faith in the purchase of said note by plaintiffs? A. Yes.
“13. If you answer the foregoing question in the affirmative, you may state fully what facts you find constituted such bad faith. A. Nelson, a partner of Weir, and agent of Weir and Aldrich, was also partner of Hall, a director of Savage Harvester Company. Also, the note in suit was not indorsed at time of purchase.
“14. At the time plaintiffs purchased said note was it indorsed as now indorsed by the name of Salina Motors Company and by the name of Savage Harvester Company? A. No.”
The plaintiffs did not ask for personal judgment against the defendants on the note; foreclosure of the mortgage was all that was requested. The court submitted the issues to a jury. To that the plaintiffs objected. They argue that it was error to submit the cause to a jury for a general verdict.
Section 60-2903 of the Revised Statutes reads:
“Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless á jury trial is waived or a reference be ordered as hereinafter provided. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury or referred as provided in this code.”
Under that statute it was within the power of the court to submit the issues to a jury. (Drinkwater v. Sauble, 46 Kan. 170, 26 Pac. 433; Maclellan v. Seim, 57 Kan. 471, 46 Pac. 959; Wood v. Tarbush, 63 Kan. 779, 66 Pac. 991; Mills v. Hartz, 77 Kan. 218, 223, 224, 94 Pac. 142; Houston v. Goemann, 99 Kan. 438, 441, 162 Pac. 271.)
The plaintiffs complain of instructions one and five given by the court concerning the burden of proof. The court, after stating the issues, instructed the jury that—
“1. The burden of proof is upon the plaintiffs to prove by a preponderance of the evidence in this case that they purchased the note and mortgage sued on before maturity and for value, and that they were the owners thereof at the time of the commencement of this action — the amount due thereon, and that they purchased the said note sued on by indorsement, as hereinafter explained. ...”
“5. If the plaintiffs have sustained their burden of proof, as hereinbefore stated, then the burden of proof is upon the defendants to prove by clear, decisive and convincing evidence that the note sued on was procured by the false representations of the agent of the payee in said note, as hereinafter stated: ...”
The court also gave the following instructions:
■ “6. If the defendants have sustained the burden of proof as stated in the instructions just preceding this instruction, then the burden of proof is upon the plaintiffs to prove by a preponderance of the evidence in this case that they had no notice of the claimed misrepresentations as contended for by the defendant James O. McVey in his second amended answer and cross petition, at the time they claimed to have purchased the note, and that they were purchasers of said note in good faith, and before maturity of said note.”
“9. If the jury find and believe from the evidence that the note in suit was sold and indorsed- to plaintiffs before its maturity, for value, and that the plaintiffs, at such time, had no actual notice of any defect in the note, and that it was not purchased in bad faith, then your verdict should be for the plaintiffs, irrespective of any fraud claimed to have been practiced against the defendant James O. McVey.”
The burden was first on defendants to establish that the note had been procured by fraud. (Ireland v. Shore, 91 Kan. 326, 137 Pac. 926; Stevens v. Keegan, 103 Kan. 79, 83, 172 Pac. 1025; Home State Bank v. Porter, 120 Kan. 594, 596.) After the evidence had been introduced to prove that the note had been procured by fraud, the burden passed to the plaintiffs to prove that they had acquired the note in due course — that is, that they became the holders of the note before it was overdue; that they took it in good faith and for value, and that at the time they purchased it, they had no notice of any infirmity in the note or defect in the title of the person from whom they obtained it. (Bank v. Seaunier, 104 Kan. 7, 9, 178 Pac. 239; Schmidt v. Benedict, 104 Kan. 196, 178 Pac. 444; Security Co. v. Low, 112 Kan. 153, 210 Pac. 190.) While the first and fifth instructions may have been subject to objection, the sixth and ninth instructions made it clear that the burden was on the defendant to establish fraud, and after that burden had been discharged the burden was on the plaintiffs to prove that they had acquired the note in due course.
The plaintiffs complain of instruction numbered nineteen, which was as follows:
“A letter from the Denver State Bank to the First National Bank of Flagler, Colo., of date November 13, 1921, was admitted in evidence: The jury may consider the contents of that letter for the purpose of showing from what source said last-named bank received the note sued on in this action, and the date said note was received by said last-named bank; but the jury cannot consider the contents of said letter for the purpose of determining the date of indorsement or assignment of said note.”
That instruction was based on a letter written by George Roach, the cashier of the Denver State Bank in Denver, Colo., to the First National Bank, of Flagler, Colo., on May 13, 1921, and containing the following language:
“We are inclosing herewith James O. McVey note in amount of $2,500, dated November 18, 1920, indorsed by the Salina Motors Company and the Savage Harvester Company; also assignment of the Savage Harvester Company to W. E. Hall and Carlyle Nelson, covering promissory note in amount of $2,500, and one made by the Savage Harvester Company to W. E. Hall and Carlyle Nelson in amount of $2,500. These we have been informed are to be held by you in escrow until payments are made according to the agreement with the Savage Harvester Company, which they have forwarded to you direct.”
The plaintiffs requested that the instruction be modified. The request was denied. Neither the writer of the letter nor the bank to which it was addressed was a party to this action or to the transaction out of which the note in controversy arose. The statements made by the writer of the letter were not given under oath and were not binding on any party to this action. So far as this action is concerned, those statements were hearsay. There was no error in giving instruction numbered nineteen.
Complaint is made of the admission of certain evidence. The defendant James O. McVey testified that prior to the commencement of this action he personally investigated the records in the office of the blue-sky board of Kansas to find out something about the Savage Harvester Company. Over objection, he testified that, with the assistance of an officer in the bank commissioner’s office, he investigated the records to ascertain whether or not the Savage Harvester Company had been given permission to sell its stock in this state, and there learned that such permission had not been given. The defendants, by their verified answer and by their verified cross petition, presented that question as an issue. Plaintiffs in their reply alleged that they had acquired the note before maturity, in due course, without notice or knowledge of any infirmity in it, and that they had purchased it for a valuable consideration. The plaintiffs did not allege that the harvester company, at the time the note was given, had permission to sell its stock in the state of Kansas. Some one from the bank commissioner’s office, acquainted with its records, could have testified that permission had not been given to the harvester company to sell its stock in this state. That would have been the best evidence that could have been produced. If James O. McVey was acquainted with the records in that office, he could testify to that fact. He may not have made himself sufficiently acquainted with the records to have been permitted to testify to that fact, but it was not specifically put in issue by the reply of the plaintiffs, who could have proven the fact readily if such permit had been granted.
The note sued on was given for stock in the Savage Harvester Company and a harvester combine. Neither stock nor combine was ever delivered to the defendants.
Section 60-3317 of the Revised Statutes, in part, reads:
“The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court. . . .”
The evidence of the witness McVey may have been inadmissible, but the result reached on the trial is so strictly in accord with justice that the quoted part of the statute prohibits this court from reversing the judgment because of the admission of that evidence.
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The opinion of the court was delivered by
Jochems, J.:
The appellees, W. L. Coleman and Elizabeth Coleman, sued the St. Louis-San Francisco Railway Company in the district court of Wyandotte county for damages for the death of their unmarried son, James Clarkson Coleman. He was killed on September 21, 1924, in a collision upon a highway grade crossing near Paola, Kan. An automobile in which he was riding at the time collided with a passenger train of the defendant. Plaintiffs asked for damages in the amount of $3,000 and obtained a verdict from the jury for the full amount. Judgment was so entered on the verdict, and defendant appeals.
We will consider the first question raised by appellant in its brief, in which appellant contends that demurrer to plaintiffs’ evidence should have been sustained, and that under the evidence and the special findings of the jury the defendant was chargeable with no negligence proximately causing the death of the deceased, and that as a matter of law the sole proximate cause of his death was the negligence of the driver of the car, or the negligence of the driver and of the deceased; that even had there been negligence on the part of the defendant recovery would be barred by the negligence of the deceased.
The railroad crossing in question was about fifteen rods outside the corporate limits of Paola. The defendant’s tracks ran from the southeast to the northwest, the direction being generally designated in the briefs as north and south. The highway in question was the main traveled road between Osawatomie and Paola, a distance of some ten miles. The highway ran from the south to a point some 500 feet west of the crossing, where it turned directly east, continuing in an easterly direction, crossing the tracks at the point where the collision occurred and running thence to a point 100 feet or more beyond, where it intersected Silver street extended from the city of Paola. The car in which the deceased and his companions were riding was eastbound, having come from the south and made the turn to the east. Lying south of the highway from the point where the turn was made to go east, to the west edge of the right of way, was the property of T. W. Hayes. About halfway between the corner where the road turns to the east and the right of way was the Hayes house. East of the house, but west of the right of way, were the shed and barn. Defendant’s west right-of-way line was 50 feet from the center of the tracks. About 110 feet west of the center of the track a driveway entered the Hayes property from the road. Between the driveway and the edge of the right of way, along the south side of the road as it approached the tracks, there was a hedge fence, and along the west side of the right of way for some distance south and funning along the east line of the Hayes property on the line between that property and the right of way, there was also a hedge fence which encroached about one foot on the right of way. On the Hayes property between the buildings and the hedge there were some trees.
The deceased and his companions had come from Garnett, some thirty miles beyond Osawatomie and about forty miles from Paola. Two. other automobiles were traveling in the same direction. The occupants had been to a ball game at Parker. A Mr. Scheinert owned and drove the first car and a Mr. Ingle the second car. The Scheinert car crossed the track and stopped about 60 to 75 feet east thereof just before the deceased and his companions drove on the track. Scheinert stopped to wait for the car being driven by Ingle because his small son was in the Ingle car and he wanted to see if they got across safely. Scheinert and the occupants of his car saw the train as they came up to the track and one of the occupants wanted him to wait until the train had passed, but he drove on across. Defendant’s track was built up on a grade some 10 or 12 feet above the level of the ground and the highway was inclined upward as it approached the track from either side. About 500 feet south of the crossing where the collision occurred was another road, crossing the track from the west, which turned in a northerly direction and ran along the east side of the track and connected with the road upon which the collision occurred, and with Silver street just east of the crossing which was the scene of the collision.
The car in which the deceased was riding was a Dodge, driven by a young man named Grenen. The driver, the deceased and another young man were the occupants, and all were riding in the front seat. This Dodge car had passed the Ingle car about two miles from Paola and was traveling very fast at the time, according to the occupants of the Ingle car. The occupants of the Scheinert car saw the collision after they had crossed the track and had stopped to wait for the Ingle car. The first glimpse they had of the Dodge car driven by Grenen was as it came up to the track from the other side. Grenen, the driver, lived about three hours after the collision. The deceased and the other young man were killed instantly. The pilot of the engine struck the middle of the car and the occupants landed on the east side of the track. The speed of the train was variously estimated by witnesses at from 35 to'55 miles per hour. There was no evidence as to the speed of the automobile driven by Grenen offered on behalf of the plaintiffs, except that some of the witnesses in the Scheinert car stated that it seemed to “come right up out of the ground” on the west side of the track. One witness for the defendant, Mrs. Hayes, estimated the speed of the Dodge car, as it passed her house and went upon the track, at from 40 to 45 miles per hour. The road was a dirt road and rough. One witness for plaintiffs testified that it was so rough as it approached the track that “if you drove 15 or 20 miles per hour you were liable to be bounced out of the car.”
There was a pronounced incline beginning about 20 or 30 feet west of the railroad track, according to some witnesses. Others claimed that the incline was gradual. Some claimed it was gradual up to a point 20 or 30 feet west of the track and then came right up by a sharp incline to the railroad track. Scheinert testified he heard the train whistle when he got on the track. He stated that from the time he saw the train until it struck the Dodge car it seemed a very short while. The evidence on the part of all witnesses who were in a position to hear was to the effect that the train whistled for the crossing. There was testimony that shortly after the collision the cattle guard, which was broken as a result of the collision, and the railroad crossing sign, were repaired and repainted.
There was testimony showing there was a hedge fence along the west right-of-way line, and also from the driveway into the Hayes farm up to the right of way. Other testimony was that there were some trees on the Hayes property which obstructed the view; that the foliage was still green and pretty thick. There was conflicting testimony as to the height of the hedges. Some witnesses stated that they were 10 to 12 feet high at the time of the accident; others who testified for the defendant stated that they had been cut down several weeks before the collision and were then in the condition as shown by certain photographs which defendant took the morning after the collision. The testimony was clear and undisputed that the hedge fence to the west of the track was on the line between the right of way and the Hayes property; that this line was 50 feet from the track, but that the hedge encroached about one foot over on the right of way, thus leaving a space of 49 feet between the track and the hedge clear of any and all obstructions. There was some testimony that the train could not be seen by the deceased on account of the obstructions above described, and shadows. The collision occurred in the early evening. Some witnesses testified that it was about 6:45 p. m. The engineer stated that it was exactly 6:15 p. m. The headlight on the train had not been turned on; neither were any of the automobiles using their headlights.
The jury made special findings as follows:
“1. Did the car in which deceased was in stop on the highway west of the crossing, and if so, how far from the track? A. We presume the car did stop about 50 feet.
“2. How fast was the car, which deceased was in, going when it went upon the crossing? A. From 10 to 15 miles per hour.
“3. How fast was the car, which deceased was in, going when it passed the Hayes house? A. About 20 miles per hour.
“4. How fast was the car, which deceased was in, going when it turned east on the highway at the turn west of the Hayes house? A. About 20 miles per hour.
“5. How far south of the crossing could a train be seen from the highway at the following points?
(a) From 100 feet west of the track? A. Couldn’t see it.
(b) From 75 feet west of the track? A. Couldn’t see it.
(c) From 50 feet west of the track? A. Couldn’t see it.
(d) From 40 feet west of the track? A. About 10 feet.
(e) From 30 feet west of the track? A. About 25 feet.
(/) From 15 feet west of the track? A. About 50 feet.
(р) From 10 feet west of the track? A. About 100 feet.
“6. Was there any obstruction to the view south on the railroad track from the highway approaching the crossing from the west? A. Yes.
“7. If in answering the last question you have said there was obstruction to the view south of the track, state:
(a) What were the obstruction or obstructions? A. Trees, hedges and shadows.
(b) Where were they located? A. The hedge and trees were 49 feet west of the track. The shadows extended across the tracks.
(с) How far from the track? A. 49 feet.-
“8. Was the collision caused by any negligence on the part of the defendant railroad company? A. Yes.
“9. If you answer that the accident was caused by some negligence on the part of the defendant, state what that negligence was. A. The train was traveling at a high rate of speed across a public highway. The fireman was not watching for the crossing. Lack of proper signals. Obstructions along right of way.”
Does the record show any actionable negligence on the part of the defendant? We will consider in their order the various grounds of negligence found by the jury in its answers to special question No. 9.
First: The jury found that the train was traveling at a high rate of speed across a public highway. In the recent case of Cross v. Chicago, R. I. & P. Rly. Co., 120 Kan. 58, 242 Pac. 469, the court quotes with approval from a former decision (A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284, 38 Pac. 257) as follows:
“Cases may arise where the speed of a train may be considered by a jury, in connection with the location and other surrounding circumstances, upon a question of negligence. In densely populated. districts, such as towns and cities, public safety requires the speed to be moderated. This crossing, as we have seen, however, was in the country, where there was no statutory or municipal regulation with respect to the speed of trains. In such cases there is no limit upon the speed at which trains may be run, except that of a careful regard for the safety of trains and passengers.” (p. 60.)
Under the facts, as shown by the record in this case, the speed at which the train was running did not constitute negligence.
Second: The jury found that “the fireman was not watching for the crossing.” This was not in and of itself negligence. The fireman’s duties are numerous. He has other duties in the operation of a train besides that of sitting at the window and constantly watching for railroad crossings. Likewise it is clear under the evidence in this case that had he been watching for the crossing there was nothing he could have done to prevent the collision. It must be remembered that had the fireman been watching the crossing the train could have been seen by the driver of the automobile and the deceased as soon as the fireman could have seen the automobile. At the rate of speed at which the train was traveling, had the fireman been keeping a constant lookout, there is no reason to find that he could have averted the collision.
Third: The jury found “lack of proper signals.” The specification by the jury of particular grounds for negligence in finding No. 9, and the failure of the jury to include a lack of proper crossing sign as a ground of negligence, constituted a finding for the defendant on this point. (Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590; Cooper v. Railway Co., 117 Kan. 703, 232 Pac. 1024; Morlan v. Atchison, T. & S. F. Rly. Co., 118 Kan. 713, 236 Pac. 821.)
The appellees contend that the finding of the jury “lack of proper signals” refers to and includes failure to have a proper crossing sign. Upon the question of whether or not a proper crossing sign was maintained, there was considerable evidence and that point was strongly contended on the trial. So much so that the jury could not have failed to have had in mind, as one of the points of negligence,- the plaintiffs’ specific contention about the sign. The testimony relative to the crossing sign was given by the witness Scheinert. He was asked about the crossing sign and stated:
“There was one on the east side of the track southeast of the crossing; it was not visible to a person coming from the west if there was a train on the crossing.”
The witness meant, of course, that when a train was in the act of crossing the point where the highway intersected the railroad track it would necessarily be between the crossing sign and a party coming from the west on the highway. Under that situation, of course, the crossing sign could not be seen. It is our interpretation of the jury’s special finding “lack of proper signals” that the 'jury did not mean to include the failure to maintain a crossing sign. In fact, there was positive evidence showing that the usual crossing sign was maintained at the crossing and that it was visible for some distance before coming to the crossing.
The word “signal” is defined in Webster’s International Dictionary as follows:
“(2) A sign made to give notice of something, as of a command or danger, as, a signal to fire.
“(3) A sign, event, or watchword which has been agreed upon as the occasion of concerted action. That which incites to action; an initial cause or impulse.”
The word “sign” has a number of meanings, but is defined in the same work under subdivision 7:
“A lettered board, or other conspicuous notice, placed on or before a building, room, shop or office to advertise the business there transacted, or the name of the person or firm there conducting it; a publicly displayed token or notice.”
The common understanding of the word “signal” as used in connection with the operation of a railroad is one which implies action— the doing of some act whereby notice or warning is given, such as the ringing of a bell, blowing a whistle, waving a lantern, or shooting a torpedo. On the other hand, the word “sign,” as commonly understood when used in connection with a railroad crossing, means an inanimate, inactive object, such as a board upon which words of warning are painted.
The crossing sign was sufficient as a matter of law to have charged the occupants of the car with knowledge that they were approaching a railroad track. (Heinen v. Atchison, T. & S. F. Rly. Co., 125 Kan. 612, 266 Pac. 35.) It appears, therefore, that a crossing sign which complied with the requirements of the law was properly maintained.
The finding of the jury “lack of proper signals” narrows down, then,-to one thing — failure to sound the whistle. That is the only lack of signal which the jury could properly have had in mind. But the testimony of all witnesses who were in a position to hear was that the whistle was blown. The testimony on this point is so clear that when the finding of the jury is narrowed down to a failure to sound the whistle, it is unsupported by the evidence. The record, therefore, does not establish any negligence on the part of the defendant by reason-of failure to blow the whistle.
Fourth: The jury found as a ground of negligence “obstructions along right of way.” In support of this finding of the jury the appellees cite the following cases: Corley v. Railway Co., 90 Kan. 70, 133 Pac. 555; Smith v. Street Railway Co., 91 Kan. 31, 136 Pac. 930; Burzio v. Railway Co., 102 Kan. 287, 171 Pac. 351; Schaefer v. Interurban Railway Co., 104 Kan. 394, 179 Pac. 323.
However, in each of those cases it must be observed that recovery was permitted because the obstructions were negligently permitted by the railroad company to exist on its right of way, while in the instant case the obstructions of which complaint is made were on the land adjoining the right of way. They were not maintained permitted by the railway company on its own right of way, as in the cases cited by appellees. The obstructions complained of were hedge fences- and trees, but the evidence is clear and undisputed that none of the trees were permitted on the right of way, and the hedge fences were on the property line between the right of way and the property of the adjoining owner. From a point 49 feet west of the track the view of the track and right of way was clear of any obstructions. Under these conditions, the obstructions, if any, being on the adjoining property, were not negligently maintained by the railroad company and it could not have been liable for obstructions maintained by the owner of the adjoining property.
In finding No. 7 the jury also found that “shadows extended across the tracks.” These shadows, if any, were caused by the fact that the sun either had gone down or was about to go down, and the obstructions complained of, namely, the trees and the hedge, were between the sun and the railroad track, and this caused shadows to fall from the alleged obstructions, extending across the railroad tracks, thereby shutting off the view of the deceased and the driver. If, as we have seen, the railroad company was not guilty of any negligence in maintaining the obstructions, it manifestly follows that it could not have been liable for the shadows thrown across its tracks because of obstructions on adjoining property which it did not maintain. The shadows were not the result of any act of negligence on the part of the railroad company.
We therefore conclude, from an examination of the record in this case, that no actionable negligence on 'the part of the railroad company is disclosed. The judgment is therefore reversed and remanded with instructions to the trial court to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by William Docking as receiver of the Kansas State Bank of El Dorado to recover on a promissory note for $3,000 executed by Charles H. Sharp and Joseph Sharp, dated July 28, 1922, and payable to the order of the bank with interest at 8 per cent.
The principal defense to the note made by J oseph Sharp was that Charles H. Sharp, his son, had executed a renewal note dated January 17, 1923, in satisfaction of the indebtedness evidenced by the prior note of 1922, and that the latter had been duly canceled and delivered to his son at that time.
Plaintiff’s reply was that Charles H. Sharp never renewed the note of 1922 except conditionally. He called at the bank and paid the interest, and requested that a renewal note be prepared for himself and his father to sign — which was done. Charles signed the renewal note and stated that his father would call at the bank and sign it, and in reliance on such statement the bank suffered Charles to carry away the note of July 28, 1922.
Meantime the bank had gotten into some difficulty where it needed to get hold of some municipal bonds and it borrowed three thousand dollars’ worth from S. H. Barnhill and pledged the renewal note of January 17, 1923, as security. Barnhill accepted that note on the understanding that it was to be signed by Joseph Sharp, as his son Charles had assured the bank he would do. Barnhill left the note in the bank for a time so that it might be signed by Joseph. Joseph, however, declined to sign the renewal note, and Charles became a bankrupt. The renewal note was then delivered to Barnhill, who retained it for a time and afterwards returned it to the bank. The bank became insolvent and Barnhill’s bonds could not be returned to him. William Docking, receiver for the bank, brought suit on the note of July 28, 1922. The litigation which ensued extended over several years, so Barnhill, whom circumstances had made the beneficial owner of the indebtedness represented by the note, was substituted as plaintiff, and eventually issues were joined and the cause was tried before a jury which rendered a verdict for plaintiff, and special findings, some of which read:
“1. Who owns the note dated January 17, 1923? A. Barnhill.
“2. Did the bank ever assign, sell or otherwise deliver to the plaintiff, S. H. Barnhill, the claim which it had against Chas. H. Sharp and Jos. Sharp? A. Yes.
“3. If you answer the last question ‘Yes,’ state when and what was the consideration, if any, that was paid by Barnhill to said bank for said indebtedness. A. When he turned over the bonds to amount of $3,000.
“4. Did Jos. H. Sharp sign said note dated July 28, 1922, at the same time Chas. Sharp signed said note? A. No.
“5. Did the bank request the defendant, Jos. Sharp, to sign the note dated July 28, 1922, some time in September, 1922, as an accommodation to said bank? A. No.”
Judgment was entered accordingly. Defendant assigns certain errors which will be noted in their order.
It is first urged that the pleadings filed by Barnhill after he was substituted as plaintiff constituted a departure from the original cause of action pleaded by Docking as receiver for the bank. The action had been filed in August, 1925, and went to trial in 1926, and a verdict rendered in favor of defendant. This verdict was set aside and a new trial granted in 1928. Because of this delay and because Docking was anxious to wind up the receivership Barnhill was substituted as plaintiff and additional pleadings were filed, which defendant construed to found an action on the indebtedness represented by the note of 1922 rather than on the note itself. Was this a substantial departure? We think not. The note of 1922 was only the written contract evidencing the identical indebtedness for which it was sought from first to last to subject defendant to judgment. In the recent case of Armstrong v. Lough, 128 Kan. 167, 277 Pac. 51, this court had occasion to review all its earlier decisions involving the question of departure, and it was there said:
“Against a plea of departure or variance under our liberal civil code the precaution of prime importance in the amending of pleadings is that the cause of action or defense be not materially changed. [Citations.] . . . Ordinarily a question of departure in a plaintiff’s- pleadings only arises when there is a seeming inconsistency between the petition and reply, but the really important fault of departure arises where there is a palpable inconsistency between the earlier and later pleadings of a litigant which prevents his adversary from squarely joining issues with him on material matters, and which, if countenanced by the court, would substantially change the action or defense from what it had been at its inception. [Citations.]” (p. 170.)
It is also contended that the substitution of Barnhill as plaintiff more than five years after the maturity of the note barred the action. We must hold otherwise. According to the facts developed partly by the pleadings and partly by the evidence, Barnhill, whether regarded as pledgee or as assignee, had sufficient interest to have begun and maintained the action in his own name in the first instance. (Lower v. Shorthill, 103 Kan. 534, 176 Pac. 107; Lucky v. Rush, 121 Kan. 279, 246 Pac. 1004; Lawrence Nat’l Bank v. Howard, 125 Kan. 85, 262 Pac. 561.) It must be held that the substitution of Barnhill as plaintiff so long after the maturity of the note did not bar the further prosecution of the action, and the demurrer to plaintiff’s evidence based on the suggestion of a departure was properly overruled.
Error is also assigned on the admission of incompetent evidence. This had particular reference to the testimony of the bank’s officials touching the circumstances under which defendant’s son Charles had been permitted to carry away the note of July, 1922. Defendant’s objection to this testimony was that it related to a transaction in the absence of the defendant. This objection was not good. The defendant had pleaded and relied for his chief defense upon the fact that his son Charles had satisfied the note of July, 1922, by the giving of the renewal note of January, 1923, so of course it was proper for plaintiff to show all the facts of the very transaction relied on by defendant to prove that the note of July, 1922, had been paid.
Defendant also complains of the evidence admitted to show the nature of Barnhill’s interest in the note of July, 1922, based, also, upon its being a transaction between the bank and Barnhill in the absence of defendant and therefore not binding on him. When a plaintiff’s interest in a promissory note is disputed or questioned he has a right to show his interest, to testify as to how he acquired that interest; and the mere fact that defendant was not within hearing at the time such interest was acquired is not of the slightest consequence. If the law were otherwise a recovery could seldom be obtained upon a promissory note which has passed out of the hands of the original payee, and especially where it has been lost or destroyed, or where, as in this case, the lawful holder had been deprived of it on the promise, ruse or pretense that one of the parties bound thereon would join in the execution of a renewal.
Appellant'urges estoppel against the substituted plaintiff based upon the fact that in the course of the trial Barnhill was shown to have accepted a receipt from the bank in January, 1924, for the return of the renewal note of January, 1923, which read:
"Received of Mr. Barnhill note of Charles Sharp in the amount of $3,000 to collect.”
From this it is argued that Barnhill must have understood that it was the renewal note alone, without any conditions, which was pledged or assigned to him to secure the return of the bonds he had loaned to the bank. This incident did serve as a cue for a searching cross-examination of Barnhill, under which his testimony did not stand up very well, and doubtless counsel for defendant worked the phraseology of the receipt and Barnhill’s poor showing on cross-examination before the jury for all they were worth. But the jury had less difficulty in seeing the essentials of the transaction than Barnhill had in explaining it. In any event, the point that the acceptance of the receipt with its recital “to collect” the renewal note of January, 1923, estopped Barnhill to maintain the action on the note of July, 1922, cannot be sustained. Defendant did not rely on the recitals of that rfeceipt. He did not alter or prejudice his own position on account of it. None of the essential elements of estoppel appears which woúld permit defendant to invoke that rule of equity against the substituted plaintiff.
Error is also assigned on the instructions. One of these told the jury how far defendant Joseph Sharp would be liable if he signed the note of July 28, 1922, at the same time it was signed by Charles H. Sharp. The objection to this instruction is that there was no evidence that Joseph Sharp signed the note at the same'time it was signed by his son. However that may be, the jury’s fourth special finding settled that particular fact in defendant’s favor, so the question whether there was any evidence that father and son signed the note at the same time is no longer material.
The same instruction is subjected to another objection because it told the jury that the father would be liable although he did not personally receive any money or benefit from the note. Under the terms of the note both signatories were comakers and consequently both were bound. (Bank v. Bowdon, 98 Kan. 140, 157 Pac. 429; Bank v. Watson, 99 Kan. 686, 694, 163 Pac. 637.) Money loaned or credit extended to his son, or earlier indebtedness of the son canceled, was all the “benefit” required to bind Joseph to its payment. In 1 Randolph on Commercial Paper (2d ed.), §447, the elementary rule is stated:
“Although commercial paper must be supported by a legal consideration, it is not necessaiy that the consideration should be one moving to the party himself. Thus, a consideration to one of two joint makers may bind both.” (See footnote annotations.)
It is also contended that the defendant was entitled to judgment on the special findings of the jury. These have been critically examined as well as the argument of appellant based thereon. The court is not so inclined. The special findings are not inconsistent with the general verdict; and in the rather complicated circumstances of the case we concur with the trial court in holding that the jury did a rather painstaking job and reached a just and equitable result.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Johnston, C. J.:
C. E. Hayhurst brought this action to enforce a landlord’s lien against Charles Saile, the purchaser of a crop grown by A. B. Cummings, a tenant on land of Hayhurst, and which had been sold when a part of the rental was unpaid. Judgment went for defendant, and plaintiff appealed.
Cummings, it appears, had owned the land for a number of years, and on June 20, 1925, a deed was executed by him and placed on record conveying the land to Hayhurst. A few days before that time Cummings had obtained a lease of the land from Hayhurst until March 1 of the following year at a rental of $1,500, but only a part of the rental has been paid. Cummings raised crops of corn, oats, clover seed and hay on the farm, and in February, 1926, sold to Saile a quantity of hay and received payment therefor. At that time no mention was made as to a tenancy of Cummings, nor any question raised as to his right to sell the hay. Cummings testified that he made a payment upon the rent about that time, but was unable to say whether the money received from Saile was paid to Hayhurst on the rent. The principal question in the case was whether Saile had notice of the landlord’s lien upon the crop. A recovery may, of course, be had by the landlord from the purchaser of a crop who purchased with notice of the lien. (R. S. 67-526.) As to the matter of notice, it was shown that Saile had known Cummings a long time and knew that he had owned and lived on the fa(rm for five or six years, but the testimony was that he did not know the farm had been sold, and that he had never heard of Hayhurst. The only thing touching the matter of notice ever brought to his attention, either near or remote, was that he had heard a rumor that Cummings had traded off his land. This rumor came to him in the winter after the maturity and harvesting of the crop's, and only about a month before the purchase of the hay. Was this rumor sufficient to impart notice of the existence of a lien on the crop? A constructive notice of a lien is effectual if it relates to pertinent facts which would induce an ordinarily prudent man to make inquiry in respect to' further facts germane to the right in question. Here the ultimate fact was the tenancy of Cummings. (Hayhurst v. Underwood, 126 Kan. 349, 267 Pac. 965, and cases cited.) The Underwood case was another action brought by Hayhurst against another purchaser from Cummings of a portion of the crop involved here. The principal question in the case was the matter of constructive notice of a landlord’s lien: It was held:
“The recording of a deed conveying title to land will not, in and of itself, be constructive notice of the existence of a landlord’s lien on the crops grown thereon during the crop year in which the deed was given, when the former owner remains on the land after the date of the deed and harvests and -sells such crops.
“The recording of an unacknowledged lease, which contains specific provisions giving the lessor a lien upon all the crops until the rent is paid, where such lease is withdrawn by the agent of the lessor immediately after being recorded, does' not, either as a lease or as a chattel mortgage, constitute constructive notice of the existence of a landlord’s lien.” (Syl.)
It will be observed that the rumor related to a trade or sale of the land by Cummings, and not that it had been leased to him by Hayhurst. A sale and a lease are sepárate and distinct transactions between which there is no necessary connection. The transfer of title, as we have seen, was not made until the middle of the crop season, and the fact that the seller remained on the farm and harvested and sold the crops as his own was not unusual. Even if Saile had known of the transfer of title it would not have been information as to when possession was to be surrendered, much less that a lease had been made or that the vendor did not own and have.the right to sell the partly grown crops. Possession continued uninterruptedly after a sale does not necessarily imply that the vendor is thereafter a tenant. In the Underwood case, supra, it was held that remaining in possession and growing crops after the vendor has parted with title is not pertinent information that he was then a tenant. It was said:
• “This might, under some circumstances, be sufficient to constitute notice, but not as a general proposition. He might have had an oral reservation of the growing crops, as in the case of Soeken v. Hartwig, 124 Kan. 618, 261 Pac. 590, and doubtless many other circumstances might prevent such a conclusion following the mere giving and recording of a deed.” (p. 351.)
Cummings had been selling some of his crops and applying some of the money on the rent. There was no attempt to show that the rumor was current or general in the neighborhood. Only one other person than Saile was shown to have heard the rumor, and he said he had heard it mentioned in the winter of 1925 and 1926. The evidence did not show that the rumor was common or notorious. Among other things, the court rightly instructed the jury that—
“Now there is testimony in this case to the effect that Saile had heard a rumor that Cummings had either exchanged or sold his place. If the rumor which he heard and the facts that he was put in possession of in connection with what he heard, are or were sufficient to put an-ordinary average individual on inquiry, that is, if the facts and circumstances that he learned were such as to put an ordinary average person on inquiry, then he would buy the crops at his peril. ... To recapitulate, gentlemen, I think it may be said that there isn’t any dispute in regard to the fact that Hayhurst owned the land at the time this purchase was made by Saile. Now, if Saile was in possession of sufficient facts from what he knew, to put an ordinarily prudent person on inquiry, he should have pursued that inquiry before he paid. If he didn’t have that kind of information, then he wasn’t bound to go any further. That is the principal thing that you have got to decide in this case.”
It has been decided that the burden of proving a notice in this class of cases is upon the landlord to show that the purchase was made with notice of the lien, and that bad faith in the purchaser cannot be presumed. The purchaser is not required to show his good faith. This burden rests upon the landlord. (Mangum v. Stadel, 76 Kan. 764, 92 Pac. 1093.) The character of the information that reached Saile, and whether it was such knowledge as should have put him upon inquiry as to the main fact of tenancy, was a fact for the jury to determine. Our conclusion is that the evidence covering no more than the floating rumor which was not general or confirmed, and was so remote from the main fact, warranted the jury in finding that the property had been purchased without notice of the landlord’s lien.
Plaintiff seems to rely largely on the decision in Scully v. Porter, 57 Kan. 322, 46 Pac. 313. The record discloses that that case differs materially in its facts from the instant one. There the land was owned by Scully and was rented to a tenant on exceptional terms, as were many other tracts, and that the land was rented was a matter of common knowledge in the community, in fact not open to question. The purchaser had abundant notice to put him upon inquiry. While it was said that the landlord has a lien on the crop without the formality of a writing or the making and recording of a lease contract, that does not carry the implication that a purchaser of a crop becomes liable to the landlord regardless of notice of the lien by the purchaser. The statute in explicit terms makes notice to the purchaser a condition precedent to establishing a liability against him for the value of the crop purchased.
We discover no error in the judgment, and hence it is affirmed. | [
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|
The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for injuries sustained by plaintiff in being struck and injured by one of defendant’s street cars in Wichita.
The pertinent facts were these: Main street in Wichita runs north and south. Defendant has a double line of car tracks in that street. Second and Third streets intersect Main street at right .angles. On August 23,1927, about 6:30 a. m., plaintiff started from a point on the west side to cross Main street diagonally toward the southeast between Second and Third about midway of the block. When she reached the east rail of the west car track her attention was attracted to an automobile coming rapidly from the south. This caused her to hesitate, and just at that moment one of defendant’s cars came from the north at high speed and struck the plaintiff, knocked her down, and dragged her by her clothing for a ■considerable distance. She was variously bruised and injured.
In her petition plaintiff charged defendant with negligence in operating its car at a high and dangerous rate of speed, and at an excessive speed under the city ordinances, and without ringing any bell or giving any signal of its approach, and without having the car under proper control, and—
“That the said defendant was guilty of further negligence, acting as aforesaid, in that the said defendant, by and through its duly authorized agent, and servant and motomeer in charge of said street car, saw or could have seen, in the exercise of ordinary care, and did see that the plaintiff was in a position of danger, and failed to slacken the speed of said street car, or stop the same, or attempt to stop said street car, and avoid injuring this plaintiff, as herein alleged.”
Plaintiff prayed for $3,000.
Defendant joined issue on these allegations, and pleaded contributory negligence on the part of plaintiff.
The cause was tried before a jury. The evidence for plaintiff tended to prove the negligence of defendant, but also showed that plaintiff herself was guilty of contributory negligence. The court gave an instruction to that effect, with the addition, however, that if the motorman had a last clear chance and failed to seize it to avoid injuring plaintiff after discovering the peril her own negligence had gotten her into, defendant would be liable. The instruction read:
“No. 8. . . . The court iustructs you that the plaintiff was' guilty of negligence in not looking to see whether or not there was a street car coming from the north, and you are further instructed that her negligence will bar a recovery in this case unless it satisfactorily appears to you from the evidence that after the plaintiff reached the position of danger from which she could not extricate herself, that the motorman of the defendant company, when he saw, or should have seen, plaintiff’s peril, did not exercise reasonable care to avoid injuring the plaintiff. If you find that the motorman saw, or in the exercise of ordinary care and prudence, ought to have seen, the plaintiff’s position of danger in time to have avoided the injury and that he failed to do so, then in that event the plaintiff might recover.”
The jury returned a verdict for $700 in favor of plaintiff and answered certain special questions, some of which read:
“No. 3. Did the plaintiff see the approaching street car before she went upon the street-car tracks? A. No.
“No. 4. If you answer that preceding question in the negative, state what prevented her from seeing the approaching car. A. Automobile.
“No. 5. In what part of the block did the accident happen? A. About, midway.
“No. 6. What negligence, if any, do you find as against the defendant street-car company? A. Excessive speed limit; no warning given, not watching his track, ahead.”
Judgment was entered for plaintiff and defendant assigns various errors, only one of which will neéd attention.
Since the trial court instructed the jury that plaintiff herself was guilty of negligence in not looking to see whether or not there was a street car coming from the north before she stepped on the streetcar track, and that ruling was acquiesced in by plaintiff, the propriety of the verdict and judgment depends upon the question whether there was an opportunity for the doctrine of the last clear chance to operate. On this point the brief of appellee gives us no assistance. Her counsel reiterate the allegations of her petition concerning defendant’s negligence and cite the evidence in their support, all of which would be valuable if we were considering the question whether or not defendant was negligent. But our problem is beyond that question. The jury’s verdict was a finding that defendant was negligent, and we approach our problem with that fact established.- The trial court’s instruction, which indeed was in accord with the plaintiff’s own evidence and with the jury’s special finding No. 3, was explicitly that the plaintiff was negligent and that her negligence would bar a recovery unless the rule of the last clear chance would save her cause of action.
Defendant contends that there was no opportunity for the doctrine of last clear chance to operate. In Jamison v. Atchison, T. & S. F. Rly. Co., 122 Kan. 305, 252 Pac. 472, plaintiff was injured at a railway crossing. The jury found the railway company negligent on the debatable ground that it should have slowed down and had the train under control. Plaintiff’s contributory negligence was likewise established by his own testimony, and the court so instructed the jury, but left it for the jury to say whether the circumstances would permit the application of the doctrine of last clear chance. This court said:
“The doctrine can be invoked in negligence cases only when the party relying upon it has by his own prior negligence gotten himself into a predicament from which his subsequent diligence will not avail to extricate him without injury or damage through the act or delict of another party, but where such other party has a fair opportunity — a last clear chance — to avert or minimize the accident, injury or damage, by the exercise of reasonable diligence after the negligence of the first party has ceased. (Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A., n. s., 132, and note; Juznik v. Railway Co., 109 Kan. 359, 364, 365, 199 Pac. 90; Williams v. St. Louis-San Francisco Rly. Co., ante, p. 256, and citations.)” (p. 308.)
Applying that doctrine to the Jamison case, the court said:
“Just when did the plaintiff’s negligence cease to be effective, so as to create a sufficient margin of time thereafter and prior to the accident in which the defendant had a fair opportunity, a last clear chance, to avert or minimize the collision and its consequences?” (p. 308.)
The opinion quoted from plaintiff’s testimony and concluded thus:
“At all events, plaintiff completely failed to make out a prima jade case showing that his own negligence had ceased for a sufficient length of time to have permitted the defendant by diligent action to have averted or minimized the accident and injury to plaintiff.” (p. 310.)
The pertinency of the doctrine of last clear chance has frequently been considered in street-railway negligence cases. Thus in Muir v. City Railways Co., 116 Kan. 551, 227 Pac. 536, which was a damage case arising from a collision of a street car and a grocery delivery truck, both plaintiff and defendant were negligent, but after plaintiff’s negligence had gotten him and his truck into a place of danger from which he could not extricate himself the motorman in the street car had sufficient time and space to have avoided or minimized the collision. In that case there was a last clear chance which the motorman failed to use to avert the collision and its consequences, and a judgment in favor of plaintiff was upheld. See, also, Morlan v. Hutchinson, 116 Kan. 86, 225 Pac. 739, and Tarter v. Missouri-K. T. Rld. Co., 119 Kan. 365, 239 Pac. 754.
A typical case where the doctrine of last clear chance was unsuccessfully invoked was Maris v. Street Railway Co., 98 Kan. 205, 158 Pac. 6. Plaintiff was riding a motor cycle at a high and negligent rate of speed as he approached a street intersection on which defendant’s street car was moving at ten miles an hour on a down grade. Plaintiff was about twenty-five feet from the car when the motorman first saw him. Immediately the brakes were applied, but the street car could not be stopped in time to avoid a collision, and plaintiff was injured. The jury returned a verdict for plaintiff and answered special questions, following which the trial court entered judgment for defendant non obstante. On appeal this court affirmed the judgment, saying:
“We deem it unnecessary to enter into a discussion of the doctrine of ‘the last clear chance.’ It was relied upon in the petition and is urged here, but the doctrine finds no room for application to the situation presented by the facts determined by the jury. The plaintiff’s own negligence extended up to and actually contributed to his injury. There was no new breach of duty by the motorman subsequent to plaintiff's negligence. The finding is that the motorman did not see plaintiff when he was thrown under the car and that he first learned of the fact when the car was stopped, and besides there is the finding that he did everything in his power to stop the car as soon as he saw the plaintiff. That the doctrine of the last clear chance is not applicable to these facts, see Dyerson v. Railway Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A., n. s., 172; Railway Co. v. Bentley, 78 Kan. 221, 93 Pac. 150; Himmelwright v. Baker, 82 Kan. 569, 109 Pac. 178; Coleman v. Railway Co., 87 Kan. 190, 123 Pac. 756; Marple v. Railway Co., on rehearing, 85 Kan. 705, 118 Pac. 692. The theory upon which plaintiff seeks to support the doctrine is, that the motorman ought to have discovered the perilous situation of the plaintiff in time to have avoided the injury. In Coleman v. Railway Co., supra, and in Marple v. Railway Co., supra, it was held that the doctrine never applies where the negligence of the defendant is predicated upon the theory that defendant, should have discovered plaintiff’s danger in time to have avoided the injury but did not in fact discover it.” (p. 208.)
Later cases to the same effect are: Ogden v. Wilson, 120 Kan. 269, 243 Pac. 284; Williams v. St. Louis-S. F. Rly. Co., 122 Kan. 256, 252 Pac. 470; Clark v. Atchison, T. & S. F. Rly. Co., 127 Kan. 1, 272 Pac. 128.
In the case at bar there was no evidence which even remotely tends to show that after the motorman saw or with diligence could have seen that the plaintiff was in a place of danger he could have stopped his car in time to avoid striking her. Another factor which enters into the law of the last clear chance was also wanting: Plaintiff’s negligence in stopping on the street-car track did not get her into a place of danger from which she could not extricate herself. All she had to do was to take one step and she would have been in perfect safety. Nothing prevented her from taking that single step except her continued negligence in halting on the railway track, which in itself was another circumstance which left neither time nor opportunity — no last clear chance — for the motorman to have averted the collision which his and her negligence had made inevitable.
The judgment is reversed and the cause remanded with instructions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Burch, J.:
Plaintiff appeals from an order setting aside a sheriff’s sale of real estate. The basis of the order was that the real estate was defendant’s homestead.
Plaintiff procured a judgment against defendant in the city court of Kansas City, and filed a transcript of the judgment in the office of the clerk of the district court of Wyandotte county on February 5, 1929. The lien of the judgment, if any, dated from February 5, 1929.
The claimed homestead consists of three contiguous city lots, numbered 21, 22 and 23. Each lot is 25 feet wide and approximately 100 feet long. On lot 21 is defendant’s dwelling house, occupied by defendant and his wife, their daughter, and the daughter’s husband. Back of the house is a garage which the son-in-law uses. On lot 23 is a small two-room house occupied by defendant’s son and the son’s wife. Back of the house is a bam, used by the son as a ‘garage. The middle lot, lot 22, is vacant, and is used as a yard and as a way to and from the buildings.
Defendant purchased the lots and deeded them to his wife. She spoke of the lots as if they belonged to her husband, but she said he had nothing to do with the small house. She had no room in the large house for her mother, and she built the small house on lot 23 to care for her mother. Her mother lived there awhile before her death and paid no rent. Mrs. Lawrence testified she partly furnished the small house, and has furniture and furnishings in it. Her son and his wife have been sleeping in the small house since September, 1928, because there was no room in the large house for them. The son’s wife takes care of the small house. The light and gas bills are in the son’s name, but not the water bill. The son has some furniture in the small house, to remain until he builds his own home on his own lot. He has not been charged rent for the house, and has paid no rent for it.
Since December, 1928, Mrs. Lawrence and her husband have used the bam to store old furniture, old implements, and “a lot of stuff and junk.” The vacant part of the lots (lot 22) has always been used by Mrs. Lawrence and her husband for ingress to and egress from their premises.
The southwest half of lot 22 and all of lot 23 were sold in gross. The sale was clearly bad, and the judgment must necessarily be reversed for inclusion of part of lot 22. The sale was also bad for inclusion of lot 23. (Layson v. Grange, 48 Kan. 440, 29 Pac. 585.) Plaintiff cites the case of Ashton v. Ingle, 20 Kan. 670. That case was considered in the opinion in the Layson case, and a simple reading of the second paragraph of the syllabus is sufficient to show it has no pertinency to the facts of the present case.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff sued to recover damages for the death of her husband alleged to have been caused by the negligence of defendant! ' The trial court sustained a demurrer to plaintiff’s evidence on the ground, primarily, that the death of plaintiff’s husband resulted from his own negligence. Plaintiff has appealed.
The pertinent facts disclosed by the record may be stated as follows: The city of Norcatur owns and operates an electric- transmission line from Oberlin, where the electricity is generated, to Norcatur. The city of Dresden has a similar line from Oberlin to Dresden, which iyas-built several years after the Norcatur line was constructed. Each of these lines ordinarily carries about 13,200 volts of electric current. At one place where a turn was made in the Dresden line it was so constructed that the wire strung on it nearest to the Norcatur line was thirty-one inches from the nearest wire on the Norcatur line. From this point the lines diverge. ' The city of Norcatur had an engineer, C. W. Craig, whose duties. included that of looking after the cityte electric line and equipment, including this transmission line, and keeping the same in repair, and for that purpose had authority to employ such help as was needed, who worked under his supervision and instruction. Plaintiff and her husband, Louis Sebaugh, lived at Norcatur. Louis Sebaugh was forty-seven years of age. He was an intelligent man, perhaps more than ordinarily so. He had worked at farming, but for several years had been employed in various capacities in and about Norcatur, and for about five years before his death, although not an electrician, he had been employed irregularly, as his services were needed, by Craig to repair, or do other work, on the city’s electrical line. On the day in question Craig, with Louis Sebaugh and two other men, was repairing 'the transmission line. The particular work that was being done on this occasion was repairing the wires where they had become worn near the insulators. This required taking the wires down from the poles and doing the repair work on the ground. The part' Louis Sebaugh had in the work was repairing the wires on the ground after they had been taken down. Before beginning the work in the morning of that day Craig, accompanied by Louis Sebaugh, went to the electric plant at Oberlin, where Craig told the man there in charge that he wanted to work on this transmission line and it would be necessary to cut off the electric current. This was done in the hearing and presence of Louis Sebaugh. Craig and Sebaugh then drove southeast from Oberlin, and on the Norcatur line where it was nearest to the Dresden line Craig put on a ground wire. This was done by his climbing a pole on the Norcatur line and taking a copper wire and running it over the three wires on'the Norcatur line and fastening it together below those wires and then extending the copper wire into the ground. The purpose of this was, if by any mishap the current of the Oberlin plant should be turned on to the Norcatur line, this copper wire would ground it. The work to be done on the Norcatur line was south of this point. Craig and his men worked on repairing the line until almost noon and were gathering up their tools to go to lunch. Craig had stopped his car in the morning at a point on the highway about 300 feet south of the place he had put the ground wire on the Norcatur line. He and some of the other workmen got in his car and he started to turn it around to go by this place and take the ground wire off, when he saw Louis Sebaugh, who had climbed the pole where the ground wire was, about half way up, and saw him untie the loop of the copper wire, letting one end loose, and saw him give the copper wire a jerk. The natural effect of that was to throw it over the wires of the Norcatur line and against the wires of the Dresden line. Current from the wires on the Dresden line evidently passed along the copper wire to Sebaugh with such force as to cause his death. Louis Sebaugh had not been instructed by Craig, or anyone else, to take down this ground wire, and in his previous work on the line he had not put up nor taken down such a wire.
In support of the judgment of the court below it is argued that the city of Norcatur was not negligent in any respect which contributed to the death of Louis Sebaugh. But, since the court did not base its ruling on that .ground, and the determination of the question is not necessary for the decision of the case, we shall pass that point without determining it. We also pass the question whether or not Louis Sebaugh assumed the risk, for it is clear from the evidence that his death resulted from his own negligence. He knew the Dresden line was there, for it was plainly visible, and he and Craig had talked about it that morning, and he was bound to know that to loosen this grounded wire and jerk it would, in all probability, throw the end of it against or across the wires of the Dresden line. The safe way to take down the ground wire was to untie it, climb to the top of the pole on the Norcatur line, and so handle the ground wire that it would not come in touch with the wire on the Dresden line: But Sebaugh did not do that. There is some evidence that he was in a hurry because of threshing he planned to do that afternoon, but whatever the reason was it is clear that his own careless method in releasing and taking down this ground wire was the sole cause of his death. It requires no citation of authorities to establish the fact that under those circumstances plaintiff could not recover.
The judgment of the trial court in sustaining the demurrer to the evidence is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action by the widow (joined by the Kansas administrator of the estate of Joseph B. Crawford, deceased, as a nominal plaintiff) to set aside a deed executed by decedent a few weeks prior to his death. The defendant grantees are the adult children of deceased by a former marriage.
Briefly summarized, it may be said the second amended petition alleged substantially the following:
That on or about January 10, 1953, plaintiff’s stepchildren, in furtherance of a fraudulent scheme and conspiracy to defeat her marital rights in property owned by their father, obtained the latter’s signature on a warranty deed conveying to them certain mineral interests owned by him and located in Stafford County; that at the time his signature was obtained he was physically and mentally incompetent due to the effects of illness, alcohol and medicine; that it was obtained without consideration; and that at the time and place he was so completely under the undue influence of his children that the execution of the deed was not his free and voluntary act; that subsequent to the death of their father, which occurred on February 14, 1953, defendants, without authority, fraudulently altered the description of the property originally inserted in such deed, and thereafter caused it to be recorded in the office of the register of deeds of Stafford County; that the original description contained in the deed signed by plaintiff’s husband was ambiguous and insufficient to describe with certainty any specific property in Stafford County, or elsewhere, and that such instrument was therefore void and of no force or effect.
The prayer was for a judgment finding the deed as originally executed, and as subsequently altered, to be void and of no force or effect, and for a further order finding the property attempted to be conveyed thereby to be assets of the estate of such decedent.
Defendants’ answer and cross-petition denied all wrongdoing and fraud attributed to them, denied the incompetency of their father at the time and place in question, denied allegations of undue influence on their part, and alleged they were owners of the fee title to and were in peaceful possession of the property in question by virtue of the deed attacked by plaintiffs, and prayed for judgment quieting their title to such property.
We thus have a situation in which it is claimed that adult children of grantor by a former marriage took advantage of his alleged incompetent condition in order to secure a deed to his Stafford County property and thus deprive their stepmother, who was grantor s fourth wife, of her marital rights therein.
Following a trial upon the issues thus joined, the court rendered judgment for defendant grantees, and plaintiffs have appealed.
At the trial certain facts were stipulated by the parties, and considerable evidence, both oral and by deposition, was introduced. A fair summary thereof is as follows:
In January, 1953, Joseph R. Crawford was seventy-two years of age. For a number of years he had been addicted to the excessive use of alcoholic liquor and had been in and out of hospitals undergoing treatment for mental and physical disorders resulting therefrom. In August, 1952, plaintiff became his housekeeper and manager of an apartment building in Kansas City, Missouri, purchased by him following their introduction by one Richardson, the latter being active in the purchase negotiations. On October 28, 1952, plaintiff and Crawford were married. His children, defendants herein, were not present at the wedding. Richardson joined them on their wedding trip to Texas. She and Richardson were active in the purchase by Crawford of a Missouri farm, title to which was taken in the name of plaintiff and Crawford. ,
On Saturday morning, January 10, 1953, the three sons of Mr. Crawford came to his apartment for him. He left with them and, after being taken to a barbershop for a haircut and shave, accompanied them to the home of one of the sons, at which place his daughter and daughters-in-law were present. Following a general family discussion of property matters, an attorney with whom Crawford was acquainted was called to the home. He and Crawford discussed business matters and Crawford expressed the desire to make a will giving his wife a child’s share of his property. He also stated that he wanted to convey all of his property, including mineral interests, located in Stafford County, Kansas, to his four children, these defendants. The attorney then prepared a will in accord with Crawford’s expressed desire, and prepared a deed in which the four children were named as grantees. Inasmuch as the legal descrip tions of his Stafford County properties were not then available, the following language was typed in the deed in order to show what properties were being conveyed:
“Mineral rights and oil royalties on properties heretofore conveyed by me and lots in the town of Stafford.
“Grantor expressly reserves a life estate in all of the property hereby conveyed.”
A notary public who was called in took the acknowledgment of Crawford’s signature on the deed.
Some drinking took place at the home of Crawford’s son that day, but the evidence was to the effect that prior to signing the deed Crawford had only" one whiskey highball, and that during the entire discussion and transaction he was sober and in possession of all of his faculties. However, there was evidence to establish that during the evening and night, after he had returned to his own apartment, he was intoxicated and in a confused condition.
The next morning two of the sons and the daughter went to their father’s apartment, at which time they explained to plaintiff the execution and contents of the deed and gave her a copy of the will.
Retween January 10th and his death five weeks later, on February 14th, Crawford underwent treatment for mental disorders.
In the meantime the deed had been presented for record in the office of the register of deeds of Stafford County, but that official had returned it for a more detailed description of the property conveyed.
This action was commenced on February 16, 1953, the day of Mr. Crawford’s funeral.
About a month after his death an attorney representing defendant grantees inserted in the deed, immediately following the language quoted, supra, the detailed legal descriptions of four properties in Stafford County owned by Crawford on the date it was executed. These detailed descriptions covered royalty interests on three separate tracts and also included town lots which Crawford had previously contracted to sell but the deal for which had not been consummated.
In their brief plaintiffs argue three questions. The first is that the court erred in its general finding that the grantor was mentally competent at the time of execution of the deed. Plaintiff widow of course was not present at the time and her evidence on this question consisted almost entirely of medical testimony and hospital records which clearly established the fact that on numerous occasions, both before and after the day in question, Crawford was undergoing treatment for mental and physical disorders allegedly brought on by the excessive use of alcoholic liquor over a period of years. However, assuming that evidence to be true, the matter still resolves itself into the precise question whether at the time he signed the deed Crawford was competent to understand the nature of the transaction. All of the evidence directly bearing on the issue was that he was competent and that at the time was not under the influence of liquor. In Venable v. Bradbury, 111 Kan. 495, 207 Pac. 647, it was held:
“No invalidity can be predicated on the intemperate habits of the plaintiff where it appears that he was not intoxicated or incapable of understanding what he was doing when the transfers were made.” (Syl. 4.)
In the exhaustive opinion in Ismert-Hincke Milling Co. v. Ismert Estate, 136 Kan. 617, 16 P. 2d 521, the following rule was stated:
“The ultimate legal standard of mental capacity to execute a will or promissory note is competency to know and understand the transaction.” (Syl. 1.)
In the more recent case of Mills v. Shepherd, 159 Kan. 668, 157 P. 2d 533, the rule was thus stated:
“The test of mental capacity to contract or to convey property is whether the person possesses sufficient mind to understand, in a reasonable manner, the nature and effect of the act in which he is engaged.” (Syl. 1.)
Tested by the foregoing rules, we have no difficulty in agreeing with the trial court that at the time he signed the deed Crawford was not incompetent.
The next question raised by plaintiffs is whether- the trial court properly found that the deed, for which there was no consideration, was executed without undue influence, in view of the undisputed testimony that the grantees prepared the deed, arranged for the attorney, obtained the notary public, conveniently provided the Kansas forms, and that one of the grantees occupied a confidental relationship to the grantor who was given no independent advice at the time, and in this connection reliance is had upon a number of our decisions, some of which are cited with approval in the recent case of Henks v. Panning, 175 Kan. 424, 264 P. 2d 483, to the effect that persons enjoying a confidential relationship with the grantor of gifts inter vivos have the burden of showing that such gifts were made without undue influence.
We adhere to such rule, but the trouble, from plaintiffs’ stand point, is that the facts established by the evidence do not bring this case within its application. No useful purpose would be served by a detailed recital of the evidence. It is sufficient to say that the hint of the existence of a confidential and fiduciary relationship between one of the sons and his father is simply not borne out by the evidence. There is nothing in the evidence to establish that the father looked to his adult children for advice and counsel on business matters so as to create the existence of a confidential relationship as that term is used and defined in our decisions dealing with the subject. (In re Estate of Schippel, 169 Kan. 151, 163, 218 P. 2d 192.)
And neither can the contention with respect to alleged undue influence be sustained. Entirely aside from the fact that power, motive and opportunity to exercise undue influence do not alone authorize the inference that such influence was in fact exercised (Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, 22 L. R. A. (NS) 1024), all of the evidence directly bearing on the point clearly established that the execution of the deed was the free and voluntary act of the father.
The last question raised by plaintiffs is whether the court properly held that the deed signed by grantor, and which purported to convey mineral rights on properties “heretofore conveyed by me,” could be altered after his death by the grantees so as to include property which had not been “heretofore conveyed” by him.
In this connection it is to be recalled that following Crawford’s death an attorney for grantees inserted in the deed the legal descriptions of the four properties owned by grantor in Stafford County. Three of these descriptions covered mineral interests on separate tracts, while the fourth covered town lots.
■ It was stipulated that the land on which two of the mineral interests were located had been “heretofore conveyed” by Crawford, but that the “royalty interest in . . . Section 8, . . . was at the time of his death exactly as he had inherited it from a former deceased wife and had never been ‘heretofore conveyed’ by him.”
Before treating the specific question presented we refer to the general rule concerning the sufficiency of descriptions contained in deeds.
In 26 C. J. S., Deeds, § 30, pp. 210, 211, it is said:
“In general any description in a conveyance of the property is sufficient if it identifies the property, or if it affords the means of identification, as by extrinsic evidence.
“Generally, therefore, any description is sufficient by which the identity of the premises can be established, or which furnishes the means of identification.”
To the same effect, see 16 Am. Jur., Deeds, § 262, p. 585, and § 272, pp. 591, 592.
That the foregoing general rule is followed in this state is established by what was said and held in Bryant v. Fordyce, 147 Kan. 586, 590, 78 P. 2d 32.
The form of deed executed by Crawford was not in “blank.” It clearly conveyed his mineral interests on properties located in Stafford County “heretofore conveyed” by him, and lots in the town of Stafford. The evidence was clear that by the execution of the deed he intended to convey all of his holdings in Stafford County, reserving to himself a life estate. Specific identification of those properties was a simple matter merely by reference to the public records. Plaintiff herself had no difficulty in identifying them by their legal descriptions when she filed the action. The subsequent insertion of the detailed legal descriptions, which the evidence showed was authorized by grantor, was not such an alteration as to void the conveyance. And with respect to the mineral interest in section 8 (referred to by the parties as tract “C”), we are advised by defendants, and it is not disputed by plaintiffs, that it, like the other two interests, had been acquired by Crawford through the estate of a prior deceased wife, and that only the three interests remained. For all the record shows the fee to such tract may have been previously conveyed by him and his former wife. In any event, inherent in the trial court’s judgment is the finding that such tract was in the same status as the other two, and it has not been made to appear the court erred in so holding.
This was essentially a fact case. The trial court resolved all questions of fact in favor of defendants. There was substantial evidence to support the general findings. They, in turn, support the judgment rendered. No error being shown, the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action by a two-year-old child by his father to recover damages alleged to have been sustained when the defendants maintained upon premises under their control a conveyer alleged to be dangerous to children of tender years by reason of their inability to appreciate the peril ..they incurred by playing upon it, commonly known as an attractive nuisance case. Judgment was for the defendants, sustaining their demurrer to the plaintiff’s petition. He has appealed.
After the formal allegations, the petition alleged that the Kaw Construction Company was in the business of contracting for and construction of homes in Johnson county; that the defendants Hale and Werle were partners with their residence in Johnson county; that about the 28th of September, 1952, defendants were in exclusive possession and control of real property located at 1213 Fredrick-son Drive in Olathe; that in connection with the construction of a house upon that property the defendants used and maintained an escalator-type conveyer for transporting materials from the ground to the roof of the house; that it was left in place for use on Sunday, September 28, 1952, and was not enclosed, retracted to ground level, or guarded in any way, and the mechanism thereof was in place for operation at all times, attractive to young children as a plaything and very dangerous for them to use, and to walk up to the roof of the house under construction, and such danger could have been avoided by retracting the conveyer to ground level, and all these facts were well known to defendants at all times; that plaintiff resided on the above date next door to the house where the conveyer was located and his son, the plaintiff, who was two years old on that day, and other small children, had been in the habit of watching and passing along the street by this house; that the conveyer was at all times when the workmen left their work retracted to ground level when not in use, but on the above date and for a day prior thereto defendants and their servants negligently left it in place for use, unguarded, and while in this condition plaintiff wandered into the property to engage in play with another child, walked up the conveyer onto the roof of the house and from there fell to the ground; that at such time James J. Brennan III was of too tender an age to appreciate the danger which he incurred by playing upon the conveyer and his resulting injuries were caused by the defendants, their agents, servants and employees carelessly and negligently leaving the conveyer in place, abandoned and unguarded; that as a consequence thereof plaintiff’s body was bruised and he was damaged.
The defendant Kaw Construction Company admitted the formal allegations and denied each and every other allegation. The answer further stated that all of the equipment described was exclusively owned, maintained, operated and controlled by the defendant partnership, Hale and Werle, who had an independent contract for the application of roofing upon the house in question.
The prayer was that the plaintiff’s petition be denied.
The defendant partnership admitted the formal allegations and filed a general denial. They alleged further that they were not in exclusive possession of the premises; that other contractors, firms and individuals were in and about the premises and used the equipment thereon as occasion arose and that if the conveyer was left extended and unguarded, which they did not admit, some other person had left it so.
At the close of plaintiff’s evidence the defendants both demurred to it. These demurrers were sustained — hence this appeal.
The specified grounds of defendants Hale and Werle were that there was no showing of any negligence on the part of the partnership, no showing, of any acts of the partnership that could have been the proximate cause of plaintiff’s injuries and the elevator in question was no attractive nuisance.
We shall state at the outset the rule followed by this court when we are ruling upon a demurrer to the evidence. We do not weigh evidence in such a case. We do not weigh or compare contradictory testimony but we accept all evidence as true and give to the plaintiff the benefit of all reasonable inferences that may be properly drawn therefrom and we consider only such portions of the evidence as are favorable to the plaintiff. (See Blankenship v. Fraker, 173 Kan. 438, 249 P. 2d 683.)
Chronologically stated, the evidence established that on Sunday, September 28, 1952, and for a time prior thereto the Kaw Construction Company, contractor, was constructing a house on property located at 1213 Fredrickson Drive, Olathe, Kansas. Hale and Werle, subcontractors for roofing of said house, were the parties in exclusive possession and control of the premises and condition, instrumentality and machinery thereon.
On September 28, 1952, a 32-foot Sam Mulke Elevator, owned and controlled by Hale and Werle, was in place, providing a gradual incline upon which to walk or crawl from the ground to the roof of the house, which elevator was openly exposed, unguarded and upon which children of tender years were playing. The elevator could have been easily retracted to the ground, but was left up over the week end because it was easier for the workmen and saved them time. On September 28, 1952, about noon, James J. Brennan III, age two years, escaped from his enclosed yard next door, ascended to the roof of the house under construction, where he was seen thereon, and shortly thereafter was found lying unconscious adjacent to the foundation of the house.
On and prior to Sunday, September 28, 1952, many children frequented the premises and the owner could retract the elevator by merely winding same down to the ground level. By reason of this condition at 1213 Fredrickson Street,' Olathe, Kansas, plaintiff was injured.
Our question is whether such was sufficient proof of the existence of an attractive nuisance to warrant the submission of the question to the jury.
In Pennington v. Oil & Gas Co., 106 Kan. 569, 189 Pac. 137, we considered a case where a child had gone into a power house with his 12-year-old brother and was caught in a belt and injured. The action was brought upon the attractive nuisance theory. We said:
“The engine and pump are common and useful appliances, such as may be found on many of the farms in the country, and in most of tire shops and business establishments in tire cities. Of course, any machinery is interesting to children, but the appliances in question no more invite the curiosity and interest of children than do a corn slreller, a feed grinder, a cream separator, a water pump, a harvester, a threshing machine, and many other similar instrumentalities commonly used on farms. Stationary engines and motors quite similar to that under consideration can be found in most of the shops and business houses in towns and cities, and they are as equally exposed and easy of approach as the one in question. Such an appliance can hardly be regarded as so unusual and alluring to children as to furnish the essential elements of dangerous attraction and invitation.”
We dealt with the question as though two elements were necessary, that is, dangerous attraction and invitation.
In Moseley v. City of Kansas City, 170 Kan. 585, 228 P. 2d 699, the action was one where a boy sixteen years old had climbed a pole used by the board of public utilities of the city and the telephone company to convey its wires and made contact from which he re ceived a charge of electricity, causing his death. The action was brought on the attractive nuisance theory. We stated the question to be whether the child, who was at least a technical trespasser, was excused from the normal liability of. a trespasser because the equipment was provided with steps so it could easily be climbed and thus provided an invitation to the boy to climb it. We said:
“It is not everything which may attract a child that can be regarded as an attractive nuisance, for there is no limit to the class of objects which may be attractive to a normal child even though he be less than ten years of age (45 C. J. p. 765). To hold otherwise would place an unreasonable burden upon the owner of almost every kind of property capable of causing personal injury under any circumstances. The condition or appliance must be something unusual and which is of a nature rendering it peculiarly or unusually attractive or alluring to children. The object must be one and so situated that the owner knew, or should have known, it was attractive to children of tender years. In this case plaintiffs do not allege that the defendants knew or should have known children had played about the pole in question and that it was attractive and dangerous to children. What they do allege is that defendants could have known those facts. That is insufficient. The word ‘should’ denotes duty. The word ‘could’ denotes no more than a possibility.”
The machine, which was the subject of this action, was one in common use where building operations are being carried on. There was nothing novel about its presence on the lot in question except the fact of its being on that particular lot at that particular week end. Actually the rule as to liability in cases of this kind is whether the danger is latent tit patent, that is, stated in another way — Was there some hidden danger connected with the presence of this elevator with one end on the ground and the other on the roof of the house? This case is different from Talbott v. Farmers Union Co-op Elevator, 174 Kan. 435, 256 P. 2d 856. There the petition pleaded the maintenance of a place where children of the town were known to congregate for the purpose of playing. The damage was caused, however, by a well that was left open or insufficiently covered so that plaintiff fell into it. Here there was no latent danger. Any danger that existed was foreseeable. The rule is well stated in 38 Am. Jur. NEGLIGENCE, Sec. 151, p. 818:
“The character of the danger, as open and obvious, or hidden and latent, is an important consideration. The doctrine of attractive nuisance, it has been said, is limited in its application to cases where the danger is latent, and affords no basis for a recovery where the injury complained of was produced by a peril of an obvious or patent character. A danger which is not only obvious but natural, considering the instrumentality from which it arises, is not within the meaning of the attractive nuisance doctrine, for the reason that an owner or occupant is entitled to assume that the parents or guardians of a child will have warned him to avoid such a peril.”
See, also, Stimpson v. Bartex Pipe Line Co., 120 Tex. 232, 36 S. W. 2d 473 (1931), where a child climbed to the top of an oil storage tank thirty feet high by way of a stairway leading from the ground to the top of the tank and in attempting to descend by means of a vent pipe fell to the ground and was injured. The court stated:
“ 'It has been considered . . . that the attractive nuisance doctrine applies only where the danger is latent and not where it is patent, for the reason that the inefficiency of children who are so little advanced as to be able to recognize patent dangers, they should not be allowed to shift the care of them from their parents to strangers or impose upon the owner of property a duty and liability where otherwise none would exist.’
“We think it a salutary rule which imposes the duty to guard a child of such immaturity as to be able to appreciate patent and unconcealed dangers upon the parent instead of the landowner.
“The facts pleaded merely show a danger which was obvious and patent even to a child of tender years, as such a child in the very nature of things is thoroughly capable of appreciating the fact that if it falls from a structure of the height of the oil tank it would in all probability receive an injury.”
We have followed that rule in Kansas and have held in cases where there was a latent danger that could not be readily seen, the situation constituted an attractive nuisance. Any danger that existed in this situation was the danger from falling off the house after a child had climbed to the roof by means of the machine. This could hardly be called a latent danger.
It follows the trial court ruled correctly in sustaining defendants’ demurrer to plaintiff’s evidence.
The judgment of the trial court is affirmed.
Wertz, J., dissenting. | [
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The opinion of the court was delivered by
Wedell, J.:
This action was instituted to compel specific performance of a real estate contract.
The appeal by the defendant does not pertain to the merits of the action, as it has not been tried. The issue involves only the validity of an order modifying a judgment rendered two terms of court previously. Defendant appeals from that order and from the order overruling her motion to set aside the modifying order. We shall continue to refer to the parties as plaintiff and defendant.
On November 19, 1952, the district court of Labette county, sitting at Parsons, rendered the following judgment:
“Therefore, It Is by the Court Considered, Ordered and Adjudged, That the demurrer filed herein by Bessie J. Lambdin, defendant, be and the same is hereby sustained and that said defendant Bessie J. Lambdin be and she is hereby discharged as a party defendant to this proceeding and that plaintiff pay the costs incurred herein as to the defendant Bessie J. Lambdin.”
From that order plaintiff appealed to the supreme court on November 25, 1952. The appeal was dismissed April 17, 1953, for failure to comply with rule eight of this court. Before the dismissal of the appeal and on February 26, 1953, three months after rendition of the judgment, plaintiff filed his motion to modify the judgment and to grant him twenty days within which to file an amended petition. Plaintiff served notice of that motion on defendant in which notice he stated the motion would be heard in term time, namely, on March 2, 1953. That was the last day of the November, 1952, term of court in which the judgment was rendered. When plaintiff’s motion came on for hearing on March 2, defendant objected to a hearing on the merits of the motion for the reason insufficient notice of the hearing had been given under the district court rules, which required a motion to be on file five days and that a three day notice of the hearing be given.
The motion and the objections thereto were presented to the court on oral arguments and briefs. The court sustained defendant’s motion and refused to rule on the merits of plaintiff’s motion, at that time. On its own motion the court continued the hearing on the merits of the motion until March 30, 1953, and reserved its ruling thereon until that time. That took the hearing into the next, or March, term of court. On March 30 plaintiff’s motion to modify the judgment was presented on its merits and was by the court taken under advisement. On June 1, 1953, that being during the May, 1953, term of court, which was the second term after the judgment was rendered, the court again heard the matter, set aside the judgment and granted plaintiff twenty days within which to file an amended petition.
On June 11, 1953, defendant filed her motion to vacate and set aside the modifying order. The motion was overruled and defendant has appealed.
It first should be observed the original ruling of the court on November 19, 1952, did not constitute merely an order sustaining defendant’s demurrer to plaintiff’s petition. No time was allowed plaintiff to file an amended petition. A final judgment was rendered in favor of the defendant on that date. It is that judgment which was later modified.
Plaintiff, however, contends that on March 2, 1953, the court (1) ruled on plaintiff’s motion during the term and (2) reserved its decision thereon until the next term and therefore retained jurisdiction over the judgment.
Defendant denies the first contention and the legal conclusion with respect to jurisdiction contained in the second. Touching the first point we turn to the record. The journal entry recites that when plaintiff’s motion to modify the judgment came on for hearing:
“. . . defendants by and through their attorney of record object to hearing of said motion on its merits on the grounds and for the reason that said motion had not been filed of record the requisite period of five days and three days’ notice thereafter given to defendants and constituted a violation of court rules numbered 19 and 20.” (Our italics.)
The journal entry further discloses the court heard plaintiff’s motion and defendant’s objection to a hearing thereon and concluded as follows:
“Therefore, It Is bt the Court Considered, Ordered and Adjudged, that defendants’ oral objection to hearing plaintiff’s motion to modify on its merits, at this time, be and the same is hereby sustained; that the hearing of said motion on its merits be and the same is hereby continued to March 30, 1953, at the hour of 10:00 o’clock a. m. of said day. . . .” (Our italics.)
In the light of the record we are obliged to conclude the court did not consider the merits of plaintiff’s motion during the term the judgment was rendered but undertook to continue the hearing on its merits until the next term.
Plaintiff’s motion was not predicated upon any of the grounds enumerated in G. S. 1949, 60-3007 which specifies the various grounds on which a judgment or order may be vacated or modified after the term in which it is rendered. Plaintiff’s motion, therefore, was one which rested in the discretion of the trial court, during the term, in which it was rendered. The court refused to rule on it during that term for the reason previously stated.
Plaintiff could have filed and presented his motion to modify the judgment, at any time within the term, in which it was rendered, notwithstanding plaintiff had appealed from the judgment. (State v. Langmade, 101 Kan. 814, 168 Pac. 847; State v. Bowser, 154 Kan. 427, 118 P. 2d 1055; In re Estate of Ellis, 168 Kan. 11, 210 P. 2d 417.) Nevertheless.no motion to modify the judgment was filed until over three months after its rendition. Plaintiff concedes the ruling on his motion was discretionary with the court. We need, therefore, not review any of the statutes pertaining to hearing of motions, after notice, such as G. S. 1949, 60-2932.
Under the circumstances here presented this court shall not say the district court abused its discretion in refusing to rule on the motion within the term and we do not understand that plaintiff contends it did.
In support of plaintiff’s contention the court retained jurisdiction in succeeding terms to vacate or modify its judgment, he cites Hardware Co. v. Farmers’ Bank, 50 Kan. 648, 32 Pac. 377; Mulcahy v. City of Moline, 101 Kan. 532, 171 Pac. 597; State v. Luft, 104 Kan. 353, 179 Pac. 553; State v. Bowser, 154 Kan. 427, 118 P. 2d 1055.
The first of the above cited cases is not controlling in this case. The real issue there pertained to the necessary notice of hearing on a motion during the following term of court. The next three cases were not overlooked by this court in the rather recent case of Hoffman v. Hoffman, 156 Kan. 647, 135 P. 2d 887, to which further reference will be made presently. We pause, however, to make brief reference to those three cases. In the Mulcahy case the motion to set aside an order sustaining a demurrer to a petition was filed and allowed during the same term. In State v. Luft the order modified during the subsequent term, on motion filed during the term judgment was rendered, was a ruling on a motion for a new trial. Under the civil code, involved in the instant case, the vacation or modification of a ruling on a motion for a new trial, during a subsequent term, is expressly authorized by G. S. 1949, 60-3007, within the time and in the manner prescribed in that code. The issue in the Bowser case, supra, was only whether the district court, by reason of an appeal from a judgment based on a plea of guilty, was divested of jurisdiction, during the term the judgment was rendered, to rule on a motion to set aside the plea of guilty. We held it was not divested of such power during the term. Plaintiff quotes from the opinion in the Bowser case relative to the continuing jurisdiction of the district court in a subsequent term. The quotation from the Bowser opinion is taken from State v. Luft, supra. We have already indicated herein the ruling modified in a subsequent term in the Luft case was on a motion for new trial. That is not this case.
Pointedly stated, plaintiff’s contention is the district court acted on his motion during the term. That is precisely what it did not do. It neither allowed nor denied the motion. In fact, it actually refused to hear the motion on its merits at all during the term. Having refused to hear'the motion on its merits the judgment remained a finality throughout the term of its rendition. It remained precisely as final and conclusive during that term as it would have if plaintiff had filed no motion, during the term, to vacate or modify it.
Under the foregoing state of facts the question presently confronting us is not what the effect on the court’s later jurisdiction would have been had it considered the motion on its merits during the term, taken it under advisement, and attempted to hold the decision in its bosom. We express no views on the proper decision if those had been the facts. We merely say such a case is not before us.
In Hoffman v. Hoffman, supra, this court made an extensive review of many of our decisions involving the right to vacate or modify orders or judgments during a term subsequent to their rendition. We need not again narrate the facts in the numerous cases therein reviewed. We are aware of no subsequent decision and none is cited which conflicts with what was said in that opinion. In that case no action was taken by the court, during the term judgment was rendered, on any of the motions filed, during that term, to modify the judgment. We said:
“What then must our decision be in the instant case with respect to the attempt of the trial court to modify the judgment rendered at the February, 1942, term? In view of our decisions we believe there can be but one answer. It may be stated thus: When a final judgment is rendered at one term of court, motions to modify and vacate that judgment when filed at that term are addressed to the sound discretion of the trial court. If they are not acted upon at that term they are deemed to be overruled and their pendency does not confer jurisdiction on the court to modify or vacate the judgment at a subsequent term. In the event the trial court, as it did in the instant case, attempts to modify its judgment at a subsequent term, irrespective of whether it acts on motions filed or on its own initiative, such attempted action is void. The original judgment as rendered retains its validity and is not affected by such subsequent action.” (p. 659.)
See, also, Smith v. Kansas Transport Co., 172 Kan. 26, 29, 238 P. 2d 553.
On the basis of the record before us the order vacating the former judgment in favor of the defendant and granting plaintiff additional time to plead cannot be sustained.
The order is reversed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action for personal injury alleged to have been caused by the negligence of defendants, The Atchison, Topeka & Santa Fe Railway Company, and The Topeka Transportation Company, Inc., both corporations. The appeal is from an order of the district court sustaining the demurrer of the transportation company to the petition of plaintiff. The plaintiff has appealed. At the outset it should be stated that the railway company has answered, and is not involved in this appeal.
■ The petition alleged after the formal allegations as to the railway company that the transportation company was a corporation engaged in the operation of buses for the transportation of passengers for hire in Topeka; that the plaintiff was a schoolteacher and on the day in question was on a tour sponsored by the railway company, which consisted of a trip by train over the railway company’s lines to Topeka, where the sponsor would furnish guides to conduct the members of the tour about the city of Topeka and various places of interest in the city and would return the members of this tour to the railway station; that the plaintiff paid the railway company the fare for the tour and on the morning of April 3d was transported to Topeka as a member thereof; that at Topeka the train was met by officials of the railway company and a guide supplied by the sponsor of the tour; that they were divided into groups and a guide was assigned to each group by the sponsor; “that this plaintiff was assigned to Group 13, and was told by a lady who was the guide assigned to said group to board a bus which was operated by The Topeka Transportation Company, Inc., and that said bus would transport Group No. 13 to the State Capitol building and to other places of interest in Topeka, Kansas. Upon entering the bus, the guide assigned to. Group 13, gave each of the members of said group, a badge or a tag to be worn by each member so that said members might be identified as a member of the tour and as a member of Group 13, to which this plaintiff was assigned.” The petition then described the manner in which the plaintiff was injured as follows:
“That said bus had traveled only a short distance, when the defendants, acting through the driver of said bus, so carelessly and negligently operated said motor bus as to' cause said bus to stop with such unusual suddenness and great violence that the plaintiff was thrown from her seat and was thrown forward in the center aisle of said bus, approximately half the length of said bus.”
To this the petition then alleged five reasons in which the defendants were negligent. The transportation company demurred on the ground the petition did not state facts sufficient to constitute a cause of action against it. The trial court advised counsel that the demurrer was being sustained because:
“There is nothing in the petition to show that the agent of the bus company was ‘about his master’s business’ at the time of the injury. This fact cannot be inferred by reasonable intendment from the matters of the petition. The demurrer therefore is sustained.”
Hence this appeal.
No motion was directed at this petition asking that it be made more definite and certain. The rule is that where a general demurrer is filed to a petition, the actual allegations are admitted as true and all reasonable inferences favorable to the pleader that may be drawn from the facts pleaded are taken as true. See Dalton v. Hill, 169 Kan. 388, 219 P. 2d 710; Snyder v. McDowell, 166 Kan. 624, 203 P. 2d 225; and Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590.
The appellee relies in the main on what we said in Willett v. McCormick, 161 Kan. 658, 170 P. 2d 821. That was an action where the petition alleged that plaintiff’s automobile was struck by a truck which was owned and operated by defendant rug company and negligently driven by the agent, servant and employee of defendant. The demurrer to this petition was sustained because it did not contain any allegations that the truck at tire time of the collision was being driven in the business of defendant. We held that the demurrer was properly sustained.
The case is not in point here for the reason that this petition alleged the plaintiff boarded the bus which was operated by the Topeka Transportation Company and there was an allegation that the Topeka Transportation Company was a corporation engaged in the operation of buses for the transportation of passengers for hire. With these two allegations, as well as the allegation that the defendant, acting through the driver of the bus, was negligent, under the rule to be followed in considering a demurrer to a petition, the case is controlled by what we said in Campbell v. Kansas Power & Light Co., 165 Kan. 134, 193 P. 2d 177. That was a case where the petition alleged that the plaintiff boarded a bus that was being operated on the streets in Topeka for the transportation of passengers for hire and that it was boarded at a regular bus stop. We held that such a petition stated a cause of action even though it did not contain an allegation that the driver of the bus was an employee of the transportation company at the time of the injury conducting his master’s business. We distinguished Willett v. McCormick, supra. Here the petition alleged the bus was being operated by the transportation company for hire and it was boarded at the depot upon the arrival of a train.
The judgment of the trial court is reversed, with directions to overrule the demurrer to the petition and proceed with the trial of the cause. | [
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The opinion of the court was delivered by
Smith, J.:
This is an original proceeding in habeas corpus. The petitioner was convicted of murder in the first degree and his punishment fixed at death; He was, pursuant to sentence, conveyed to the state penitentiary at Lansing. On July 19,1949, his sentence was by the governor commuted to life imprisonment in the state penitentiary. He is now held in that institution.
On May 1, 1953, he filed this petition for a writ of habeas corpus. He alleged that his conviction and sentence were void because at the trial he was not represented by competent and efficient counsel, was wrongfully advised as to what his attitude should be at his trial and no defense to the charge was offered in the trial on account of inefficiency of counsel; that the sentence was void because the verdict was-,, received by the court but was not approved by it; during the same term the district judge became dissatisfied with the verdict and stated he would set it aside if the sentence was not commuted from death to life imprisonment and the county attorney, the attorney for petitioner at the trial, and the district judge, before whom the case was tried, held a conference with the governor’s counsel, in which an agreement was reached between the district judge, the county attorney, petitioner’s attorney and the attorneys for the governor, by which the sentence of death was commuted to life imprisonment; that these proceedings denied petitioner due process of law and by reason of such denial the judgment was void. This petition was signed by counsel for the petitioner other than the counsel that represented him at his trial for murder. Attached to it was a statement, not signed, but which purported to be a statement of the petitioner as to what took place at the time of the alleged murder and certain occurrences during his trial.
To this petition the respondent answered first by way of a general denial. The answer then set out the verdict of the jury, finding the petitioner guilty, and fixing his punishment as death; that notice of appeal was filed and the appeal later dismissed and the motion to dismiss stated—
“Comes now the appellant, Jack Luis Trugillo, and moves the Court that his appeal to this Court be dismissed instanter for the reason that he has perfected an application to the Honorable Frank Carlson, Governor of the State of Kansas, for commutation of his sentence from death by hanging to imprisonment for life, and that said matter will not be considered by the Governor so long as this appeal remains pending, and the case not finally adjudicated.”
The answer then stated that the sentence was commuted to life imprisonment; that the sentence had not expired and petitioner had not been pardoned or paroled and was lawfully confined in the custody of the respondent by virtue of the judgment and order of the district court, to which reference had been made.
A member of the bar of Shawnee county was appointed commissioner to hear evidence and make findings of fact and conclusions of law. The commissioner has made his report. In this report the commissioner stated the issues of fact to be four, as follows:
“1. Did the original trial constitute due process of law?
“2. Is the failure to make the proceeding for the appointment of counsel a part of the Journal Entry fatal as to the jurisdiction of the Court?
“3. Did the Judge of the District Court have the power to set aside the verdict after sentence had been pronounced and the prisoner confined?
“4. Was the appointed counsel competent, and did he serve him loyally and to the best of his ability?”
He answered the questions contrary to the contentions of petitioner and found the facts to be contrary to the contention of petitioner. He recommended as a conclusion of law that the writ of habeas corpus be not issued.
Counsel for the petitioner saw fit to attack the report by what he terms the assignment of error. This is not the usual manner of challenging the correctness of a commissioner’s report. We shall, however, since this is a habeas corpus action treat this assignment as a proper motion attacking the correctness of the report. It is as follows: That the commission erred in refusing and failing to find the appointment of counsel was not sufficient compliance with G. S. 1949, 62-1304, to give the court jurisdiction to try the cause; in holding that G. S. 1949, 62-1304, did not require full and complete record of the appointment of counsel to be incorporated in the journal entry where the accused accepted such service and the counsel appointed was at the request of defendant; in finding that the record in the case established counsel appointed at defendant’s request was capable, competent and loyal; in finding that the failure of counsel to pursue the common-law manslaughter theory rather than that of lack of mental ability was a decision about which competent counsel might disagree; in not finding that no theory of law was pursued by defendant’s counsel; in failing to find that by reason of failure to comply with G. S. 1949, 62-1304, in the appointment of counsel the court had no jurisdiction to try the cause; in finding that the trial judge was without jurisdiction over the accused after sentence was passed and his participation in the subsequent hearing for executive clemency had no legal effect; in finding that the representation made by counsel for defendant did not render the proceeding void for lack of due process; in finding that the conviction and sentence under circumstances did not violate the fourteenth amendment to the United States constitution; in not finding that by reason of the nature of the representation of defendant by his counsel the proceedings were void by reason of their failure to comply with the fourteenth amendment; and in refusing to recommend that a writ of habeas corpus issue.
Some of the above are somewhat intermingled. Most of them require an examination of the record before the commissioner. We do this pursuant to the rule that in an original action the report of our commissioner is advisory only. (See Bissell v. Amrine, 159 Kan. 358, 155 P. 2d 413; also Miller v. Hudspeth, 164 Kan. 688,192 P. 2d 147.)
The entire proceedings in the criminal case were made a part of the record and were considered and examined by our commissioner as well as the evidence of witnesses who appeared before the commissioner. The entire record will be examined by us.
The first point argued by petitioner is that the alleged failure of the trial court to comply with G. S. 1949, 62-1304, deprived the trial court of jurisdiction. This section provides in part as follows:
“If any person about to be arraigned upon an indictment or information for any offense against the laws of this state be without counsel to conduct his defense, it shall be the duty of the court to inform him that he is entitled to counsel,, and to give him an opportunity to employ counsel of his own choosing, if he states that he is able and willing to do so. If he does ask to consult counsel of his own choosing, the court shall permit him to do so, if such counsel is within the territorial jurisdiction of the court. If he is not able and willing to employ counsel, and does not ask to consult counsel of his own choosing, the court shall appoint counsel to represent him, unless he states in writing that he does not want counsel. . . .”
Counsel makes the categorical statement that not a word appears in the record that petitioner made any request with reference to the appointment of counsel or was consulted with reference to it. This is not quite correct. Honorable Howard C. Kline, now a district judge in Sedgwick county, was judge of the city court before whom petitioner was brought when he was arrested. He testified before the commissioner that he appointed William C. Attwater as counsel for petitioner at that time. He testified further as follows:
“Q. Will you relate just what happened that caused you to arrive at that decision? A. At the time Trugillo was brought before me by one of the marshals I asked him if he had counsel or any attorney and he said he did not. I asked him if he had money or funds with which to employ counsel and he said he did not. I asked him if he wanted me to appoint an attorney to represent him and he said that he did. I asked him if he had any preference of attorneys or if he wanted anyone in particular. Something like that, in substance. He said he did. I asked him which one and he said that he would like to have Mr. Attwater appointed to represent him.”
Petitioner was bound over to the district court for murder in the first degree. Attwater testified that he and his partner had several conferences with petitioner between the time when he was bound over and the time of his trial. Counsel makes much of the fact that the above appointment was by a judge of the city court and those accused of offenses are not arraigned in that court. He argues the appointment of Attwater in that court was not in any sense a compliance with G. S. 1949, 62-1304. It is true G. S. 1949, 62-1304 refers to arraignment in the district court. The fact remains, however, that petitioner as early in the proceedings as the preliminary hearing requested the appointment of Attwater and accepted Attwater’s services at every stage. There was also testimony by petitioner’s mother as to various instances when Attwater had represented petitioner and her before that. Before the commissioner petitioner after some questioning testified as to the appointment of counsel in the city court as follows:
“Q. I don’t believe that answers my question, Jack. Did the court ask you if you wanted Mr. Attwater to represent you in this case? A. I don’t recall them asking me that particular question. I do remember them asking me if there was any particular attorney I wanted appointed and I said I didn’t know any other attorney other than Mr. Attwater.”
When petitioner was arraigned in district court the following transpired:-
“The Court: State of Kansas vs. Jack Luis Trugillo.
Mr. Norton: He is in custody.
The Court: Who represents him?
Robert Allen: We were appointed in the City Court, Judge; he has not been arraigned in the District Court yet?
The Court: You are with Wm. C. Attwater, aren’t you?
Robert Allen: Yes, sir.
The Court: I will appoint Robert Allan and William C. Attwater to represent him up here.”
Having represented petitioner at his preliminary hearing, Attwater continued to represent him at the trial, pursuant to the above appointment. Any irregularity in the appointment of Attwater seems to have • been an afterthought of petitioner after having talked to his present astute counsel.
The above does not fully comply with G. S. 1949, 62-1304. We have held the provisions of the above statute were mandatory in order to give the court jurisdiction to accept a plea of guilty. It does not follow, however, that in a case such as this, where there was evidence that petitioner asked for the appointment of a particular attorney to represent him at his preliminary hearing, and such attorney was appointed, and did represent him, and the accused accepted his services through the trial, for the notice of appeal, and, in seeking a commutation of his sentence, that such failure rendered the entire proceedings void. The authorities cited and relied on by petitioner are all cases where there was a plea of guilty. None are cited where the services were accepted, as they were in this case. We hold the commissioner was correct in holding that this failure did not render the proceedings void.
Counsel for petitioner points out in a general way certain particulars in which counsel did not conduct petitioner’s defense in the way he would have conducted it. He states the real point to be that the representation afforded the petitioner was not sufficient to constitute due process of law. Counsel for petitioner quotes what we said in Miller v. Hudspeth, supra. That was a case where one charged with murder in the first degree had been convicted and sentenced. While the appeal was pending we appointed a commissioner to hold hearings and take evidence and report whether he had been given sufficient representation as to constitute due process of law. We said, amongst other things:
. . It is the duty of defendant’s counsel to determine what crime, the facts, in his opinion, establish and to advise his client accordingly. This is one of the definite purposes of having counsel.”
“Certainly no representation of one charged with a felony should be a sham or constitute mere token service. The representation should be loyal and genuine.”
The above statement is another way of stating the provisions of G. S. 1949, 62-1304. There it is provided amongst other things:
“It is the duty of an attorney appointed by the court to represent a defendant, without charge to defendant, to inform him fully of the offense charged against him and of the penalty therefor, confer with available witnesses, cause subpoenas to be issued for witnesses necessary or proper for defendant, and in all respects to fully and fairly represent him in the action.”
The theory of counsel for petitioner may be stated as well as any other way by quoting him. He says:
“What took place in the trial? What were the acts and conduct of counsel? What was the true rule of law applicable to the charge against the defendant? These things are the things that should be considered; not whether counsel is appointed or selected. Let us not make criminal trials a game between the district attorney on the one hand and the defense counsel on the other. Let us accord to every man charged with crime a full, complete and fair trial; and in determining that determine whether or not the correct rules of law applicable to the charge were the matters considered by the court.”
Actually counsel treats the action as though the question to be tried was whether counsel who conducted the defense conducted it in the manner he, that is, counsel for petitioner, would have conducted it from the vantage point of looking back on what has happened rather than looking ahead on what is about to happen. In the words of sports writers counsel for the petitioner is what is known as a “Monday morning quarterback.”
The wife of petitioner and deceased had kept company before the marriage of petitioner to her. They had been engaged. The courtship was terminated and she and petitioner were married in November, 1947. They had one child. In October, 1948, she sued petitioner for divorce. Sometime about Thanksgiving, 1948, she started dating deceased again. This continued until the morning of the killing, which occurred at about 1:30 a. m. on January 9,1949. Mrs. Trugillo and deceased and a group of friends had been dancing during the evening of the 8th. She was staying at her father’s house and when she and deceased entered the lights were turned on and petitioner was standing in the room holding a gun in his left hand. The defendant told her to go into the room where her baby was asleep, but instead she went into the kitchen, opened the ice box and removed two beers. While she was standing at the ice box she heard a shot and heard deceased call petitioner a vile name. Several additional shots were fired and there was a fight there in the house. The father of Mrs. Trugillo and other members of her family overpowered petitioner and took the gun away from him. Deceased died later in the hospital. It will be seen there was no doubt but that petitioner killed deceased. When arrested there at the scene of the killing petitioner had a stick of dynamite with a cap and fuse in his pocket.
Petitioner asks us to examine the record of his trial for murder and pass on whether it would have been wiser or more effective had his counsel at the trial conducted his defense in a manner other than that in which he did conduct it. In Miller v. Hudspeth, supra, we held the rule in such cases to be:
“12. Criminal Law — Counsel—Duty to Client — An attorney employed to represent a client is required to serve him loyally and to the best of his ability but there is no constitutional or statutory guarantee for the assistance of the most brilliant counsel.
“13. Constitutional Law — Incompetency or Negligence of Counsel. The incompetency or negligence of an attorney employed by a defendant does not ordinarily constitute grounds for a new trial and a fortiori will not be grounds for the application of the fourteenth amendment.
“14. Attorneys — Conduct of Attorney Imputed to Client. The concept of the rule stated in the preceding paragraph is that the lack of skill and incompetency of the attorney is imputed to the defendant who employed him, the acts of the attorney thus becoming those of his client and so recognized and accepted by the court, unless the defendant repudiates them by making known to the court at the time his objection to or lack of concurrence in them.
“15. Criminal Law — Incompetency of Counsel — When Violation of Due Process. If the attorney selected by a defendant is so incompetent or dishonest or so improperly conducts defendant’s case as to amount practically to no representation, the defendant is prejudiced and thereby deprived of a fair trial and a court should grant relief by use of the writ of habeas corpus.”
A proceedings in habeas corpus such as this is a collateral attack on the judgment and in order to be successfully maintained it must be made to appear that the judgment is void. (See Miller v. Hudspeth, supra.)
We shall not examine a record in a criminal case in such an action to ascertain whether counsel exercised the best judgment or used the most effective trial tactics. We adhere to the rule announced by us above in Miller v. Hudspeth, supra. There is nothing in this record to indicate but that the representation accorded petitioner was full and fair. The decisions made by counsel in the trial of the action were those about which the most astute lawyers might differ. If we set aside convictions and sentences for such reasons there would never be an end to a criminal case. New counsel might very well file a new petition claiming counsel handling this proceeding was incompetent. “No thief e’er felt the halter draw, with good opinion of the law.”
The commissioner’s report is approved and the writ of habeas corpus is denied. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages alleged to have been sustained when plaintiff was allegedly unlawfully dispossessed of agricultural land. The appeal is from an order of the trial court striking allegations from the petition.
The petition alleged on September 1, 1946, defendant Brady and wife leased two quarter sections of land to one John Young for a term of years commencing March 1, 1947, and ending on March 1, 1952, for a cash rental of $2,000 for the term, or $400 a year; that Young assigned the lease to the plaintiff, a copy of which was attached; that plaintiff had performed all the conditions of the lease up until March 1, 1952; that by the terms of the lease plaintiff was to break not less than 200 acres for farming purposes; that plaintiff did break 200 acres in 1947, and in 1948 planted wheat thereon, also in the years 1949, 1950, 1951 and 1952; that since the termination of the lease on March 1, 1952, plaintiff, subject to a notice to quit, became a holdover tenant, commencing on March 1, 1952, under the same terms as in the lease with the consent of defendant Brady, which consent was both express and implied up to about September 1, 1952; that plaintiff caused 50 acres of the land in question to be summer fallowed for planting of wheat for the years 1952 and 1953, and caused the wheat stubble on 172 acres to be prepared for the planting of wheat; that as the holdover tenant, with the right to plant the 172 acres, and the summer-fallowed 50 acres to wheat in the fall of 1952, and to harvest it in the summer of 1953, plaintiff paid Brady to be applied as cash rent for the year commencing March 1, 1952, $400; that on September 3, 1952, Brady entered into a contract with defendants Anderson and Stoecker, whereby Brady agreed to sell the land in question to them; that by a paragraph of the contract the parties agreed there was a tenant on the land and each party agreed to use his best efforts to obtain possession from him; that defendant Brady, together with co-defendants, about September 12, 1952, unlawfully took possession of all the real estate in question over the protests of plaintiff, depriving him of the use of his land and of his right to plant it to wheat and proceeded to plant wheat on it; that in planting this wheat the defendants used an insufficient amount of seed wheat and planted it when the soil was too dry; and in an unfarmerlike manner; that defendant Brady after having deprived the plaintiff of the possession of the land on the 17th of November, 1952, sent him by mail a notice to terminate his tenancy on or before March 1, 1953; that the plaintiff as a holdover tenant, commencing on the 1st day of March, 1952, under the terms of the lease, and by reason of practice between plaintiff and Brady expended $400 cash for rent, $3 an acre for preparing the stubble-field of 172 acres for planting of wheat or $516 and the sum of $5 per acre, the actual cost of preparing the summer-fallowed land of 50 acres or $250, making a total cost expended by plaintiff of $1,166; that defendant Brady, together with the other defendants, with full knowledge of plaintiff’s right to possession, took possession of land prepared by plaintiff for planting and converted all the benefits created by the plaintiff to their use; that the 172 acres of Stubblefield prepared by plaintiff for planting was of the reasonable value to the plaintiff of $6 per acre, or a total of $1,032 and the 50 acres of summer-fallowed land was of the reasonable value to the plaintiff of $12 per acre or a total value of $600; that by reason of the things pleaded plaintiff had been damaged in the amount of $1,632, being the reasonable market value on the 12th of September, 1952, of the land prepared by him for planting, and defendant should be required to pay to plaintiff the sum of $1,632 actual damages, together with the amount of $500 as punitive damages. The prayer was for that amount.
The lease was attached. It was entered into on September 1, 1946, and provided that plaintiff should take possession on March 1, 1947, and that the tenancy should end on March 1, 1952; that the rent should be $2,000, $200 to be paid on March 1, 1947, and $200 on September 1, 1947, and the same amount to be paid on succeeding years; that the plaintiff should develop the land and break out not less than 200 acres for farming purposes and cultivate it in a farmerlike manner; that at the expiration of the lease the plaintiff should have first option to purchase the land upon due notice and should have the right to sell or remove any and all improvements placed on the land by him. The lease was assigned to the plaintiff.
To this petition Brady filed a motion to strike the language wherein plaintiff alleged his right to recover for work done on the land in the fall of 1952 in preparing it for wheat to be harvested in 1953. The court ordered that the plaintiff should have time in which to amend his petition. Some time thereafter counsel for plaintiff in a letter of the trial judge requested the court to sustain these motions to strike so that plaintiff might appeal. Thereafter the court on October 8, 1953, did sustain them. The appeal is from that order. The assignments of error are that the court erred in sustaining the motions to strike.
The action arises from the fact that the lease was the usual farm lease and began on March 1st and ended on March 1st. Since this was wheat land it was inevitable that when the plaintiff’s lease expired by its own terms on March 1, 1952, any wheat that he should plant before his tenancy ended could not be harvested by him without an agreement with his landlord express or implied. Such is what we held in Fox v. Flick, 166 Kan. 533, 203 P. 2d 186. There we said:
“The decision is a clear statement of the rule that even if a tenant is under the duty, by the terms of his lease, to sow a crop which does not mature until after his lease expires, he is not by that fact alone entitled to harvest the crop. There must be some agreement, express or implied, to the effect that he may harvest the crop.”
Counsel for plaintiff realized the force of the above holding and attempted to avoid its effect by pleading that as a holdover tenant on the land “with the right to plant said cultivated 172 acres and said summer-fallowed 50 acres to wheat in the fall of the year 1952 and to harvest the same in the summer of 1953” he paid the rent for the year on March 1, 1952, to March 1, 1953. The language quoted above was part of that stricken and was actually the only allegation in the petition where he pleaded any rights to extend beyond March 1, 1953. This pleading, however, was actually nothing more than a legal conclusion. We must consider it in connection with the letter of defendant which the plaintiff attached to his petition and made a part thereof. In one of these letters written on March 16, 1951, defendant advised plaintiff he would grant him an additional year after March 1, 1952, only it would be subject to sale. The additional year would be a year after March 1,1952, when his five-year lease ended. Plaintiff pleads throughout his petition that he was the holdover tenant under the same terms and conditions as the written lease.
The result is that the work performed by plaintiff in the fall of 1952 in preparing the ground for wheat planting was a voluntary act on his part for which no one was bound to pay him. He really is in a better position than he who plants a crop which could not mature until after his lease would expire. He at least did not lose his seed. Giving plaintiff’s pleading every presumption in favor of the pleader, he does not plead any facts from which it may be inferred that he had any rights that would extend beyond March 1,1953. That would be about three months before any crop planted in the fall of 1952 would be ready to harvest.
This is not to say that defendants had any right to dispossess plaintiff on September 12, 1952. The allegation in which he alleged and claimed damages for that invasion of his rights is still in the petition. He, under the allegations in his petition, is entitled to whatever he can prove his damages were for loss of possession of the land from September 12, 1952, to March 1, 1953. The only allegations stricken were those in which he claimed damages on account of having prepared the land for the planting of a crop he could not hope to harvest since it would mature after his holdover year had ended. The above allegations were rightfully ordered stricken. Plaintiff alleged that defendant Brady did on November 17, 1952, give him notice to quit on March 1, 1953.
The judgment of the trial court is affirmed.
Thiele, J., concurs in the result. | [
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OPINION ON REHEARING
The opinion of the court was delivered by
Smith, J.:
This is an opinion on rehearing. For original opinion of affirmance see Peck v. Horst, 175 Kan. 479, 264 P. 2d 888. The opinion in this case affirming the judgment of the lower court was filed on December 12, 1953. The appellant filed a petition for a rehearing. This petition was allowed and the case was reargued at the sitting of this court on April 7, 1954.
The original opinion of affirmance is adhered to. | [
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|
The opinion of the court was delivered by
Parker, J.:
This is an appeal from an order overruling a demurrer to an amended petition.
Plaintiff commenced the action by the filing of a petition in which he sought to recover damages from the defendant city under provisions of G. S. 1949,12-201, which read:
“All incorporated cities and towns shall be liable for all damages that may accrue in consequence of the action of mobs within their corporate limits, whether such damage shall be the destruction of property or injury of life or limb: Provided, however, That the number of persons that shall constitute a mob under this act shall be five or more.”
From statements made in the abstract, and the briefs of the respective parties, we are advised that a demurrer to the petition was sustained on grounds of misjoinder of cause of action and that thereafter plaintiff filed the involved amended petition.
For all purposes essential to the disposition of the appeal it may be stated that in such pleading the plaintiff alleges in substance that his home in the City of Wichita was invaded on November 15,1952, without legal authority by a mob, consisting of a group of more than five police officers of that city; that during the course of such invasion he was attacked and his property destroyed; that subsequently, and as a part of their attack, such officers forcibly dragged him from his home and, after placing him in a patrol wagon, drove him to the police department of the city in a careless and violent manner; that thereafter such persons forced him into an elevator in such police department, took him to the city jail and there confined him in a cell known as the “Hole”; that while they were attacking him such persons struck and assaulted his wife, Lola Hibbs, placed her in a city patrol car and took her to the city jail, where she was confined against her will, which acts caused him mental anguish and embarrassment; and that as a result of all the related acts and conduct of such group of officers he sustained injuries to his person and property, describing them at length, for which he was entitled to recover damages under the mob statute (G. S. 1949, 12-201).
After making the preceding factual statements the amended peti Ron alleges specifically that on February 12, 1953, pursuant to G. S. 1949, 12-105, plaintiff presented to the governing body of the City of Wichita a verified claim for damages. It then asserts that such claim was presented within three months from the date of the alleged assault, that more than thirty days has expired since the date of its presentation, and prays for the recovery of judgment in the amount stated.
Defendant attacked the amended peRRon by a moRon to strike certain allegaRons and to make others more definite and certain. It can be stated this moRon, containing several grounds which we regard of little importance, and one of more consequence requesting that plainttff be required to attach a copy of the claim alleged to have been filed with the City of Wichita to his amended petiRon, was overruled in its entirety and that thereupon the city demurred to such amended pleading on grounds (1) it improperly joined several causes of action and (2) failed to state facts sufficient to consRtute a cause of acRon. When this demurrer was overruled the city perfected the instant appeal where the parties now concede the sole quesRon involved is whether the trial court’s acRon in that regard was erroneous.
There is little if any merit to appellant’s arguments respecting error in the overruling of the first ground of its demurrer. It is clear from the allegations of the challenged pleading that the factual averments respecRng alleged conduct of the police officers towards appellee’s wife were made on the theory they entttled appellee to recover damages for his own mental anguish and embarrassment resulting from that alleged conduct and not for the purpose, as appellant contends, of recovering for personal injuries sustained by his wife. It is equally clear that allegations respecting assault, false arrest, false imprisonment, and malicious prosecution were included in such pleading as innuendo for the purpose of establishing one cause of action under the mob statute. Under such circumstances we know of and are cited to no authorities holding that several causes of action were improperly joined therein.
The first contention advanced by appellant as requiring a conclusion the amended petition failed to state a cause of action presents a far more perplexing and serious question. It is founded upon another section of our statute (G. S. 1949, 12-105) relating to the filing claims for damages, against the divers cities of the state, which reads:
“No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and tire circumstances relating thereto. Such city shall have thirty days from the time of the filing of such statement to make settlement with the claimant if it so desires.”
Boiled down the gist of all arguments advanced by appellant in support of its first contention is (1) that the statute just mentioned establishes conditions precedent to the maintenance of an action against the City of Wichita, or for that matter any city of the state; (2) that in the absence of affirmative allegations disclosing compliance with such conditions precedent a petition against the city on account of injury to person or property fails to state a cause of action; (3) that the filing of the written statement with the city clerk prior to the bringing of the suit, as required by its terms, is a condition precedent to the maintenance of such an action; and (4) that since the amended petition fails to contain allegations warranting a construction such a statement was filed with the clerk of the city prior to the bringing of the action it fails to state a cause of action.
Resort to the statute, which we pause to note has been applicable to cities of the first class since 1903 (L. 1903, Ch. 122 § 7), to cities of the second class since 1919 (L. 1919, Ch. 143 § 1) and cities of the third class since the 1923 revision of our general statutes (R. S. 1923, 12-105), is all that is required to establish that the legislature of this state has seen fit to fix the terms, conditions and circumstances under which it is possible to maintain a suit against a municipality for injury to person or property for there in clear and unequivocal language appears the statement that “no action shall be maintained by any person or corporation against any city” on that account unless upon compliance with the other provisions therein set forth. Thus it appears decisions of this court dealing with such statute are entitled to weight as controlling precedents regardless of the type of city involved.
This court has always recognized the power of the legislature to enact a statute establishing conditions precedent to the maintenance of an action against a city for damages to person or property and long ago, in construing 12-105, supra, determined that its provisions established conditions precedent to the bringing of such an action which must be pleaded in order to withstand a demurrer based on the ground the petition failed to state a cause of action. See Dechant v. City of Hays, 112 Kan. 729, 212 Pac. 682, where this court held:
“Chapter 143, Laws 1919, provides: ‘That no action shall be maintained against any city of the second class, by any person or corporation in any court for damages on account of injury to person or property unless the person or corporation injured or damaged shall, within four months thereafter, and prior to the bringing of the suit, file with the city clerk a written statement giving the time and place of the happening of the accident or injury received and the circumstances relating thereto.’ Held:
“1st. To create a condition precedent to the maintenance of such an action;
“2d. To apply to minors as well as to adults;
“3d. The requirements of the statute cannot be waived by the mayor or any other city official; and
“4th. The legislature has power to enact a statute making such a condition precedent.” (Syl.)
Likewise, see Davis v. City of El Dorado, 126 Kan. 153, 267 Pac. 7, which holds:
“Such a workman as is described in the first paragraph of this syllabus cannot recover from the city damages for injuries sustained by him in cutting a branch from a tree where he does not file with the city clerk a written statement giving the time and place of the happening of the accident and injury received and the circumstances relating thereto within three months after the happening of the accident.” (Syl. ¶ 2.)
And where in the opinion, in addition to quoting the foregoing syllabus from Dechant v. City of Hays, supra, verbatim, it is said:
“The plaintiff sought to avoid the consequences which followed his failure to give notice by alleging two facts: First, that the injury so incapacitated him that he was unable to give notice sooner than he did; and second, that the defendant soon after the accident learned of it, acted on the information received, paid for medical attention and hospital services for the plaintiff, and paid for the care and maintenance of the minor children of the plaintiff.
“The statute is positive in its command. It does not recognize excuses. . . .” (p. 156.)
See, also, Cook v. Topeka, 75 Kan. 534, 90 Pac. 244, where, although the trial court’s decision in sustaining a demurrer to a petition stating the written statement contemplated by the statute had been filed with the city clerk was reversed on other grounds, it is to be noted the court emphasized and pointed out that the filing of such a statement with that official was a condition precedent when it said:
“The statute requiring a statement to be filed with the clerk is mandatory; that is, no action can be maintained until such statement is filed; but with re spect to the details of the statement precise exactness is not absolutely essential. . . .” (p. 536.)
Another decision to the same effect is Ray v. City of Wichita, 138 Kan. 686, 27 P. 2d 288. Still another is Mowery v. Kansas City, 115 Kan. 61, 222 Pac. 126, where it is said:
“. . . The filing of the written statement with the clerk containing the matters set out in the statute is a condition precedent to the maintenance of an action of this character. . . .
“It is suggested by appellant that notice to a police officer who investigated the matter and his report thereof to the chief of police should be construed as a sufficient compliance with the statute. With this we cannot agree. Concerning a similar claim made in Dechant v. City of Hays, supra, it was said:
“ ‘In view of the various officials and employees which a city may and necessarily does have to transact the business of its government, it would be a dangerous and uncertain provision to interpret into a statute, (p. 732.)’
“More than that, in this case the report of the policeman did not disclose any liability on behalf of the city for injuries inflicted by a mob or for any other reason, nor did it disclose that plaintiff claimed damages by reason thereof. But the matter need not be disposed of on that ground. The statute requires a written statement to be filed with the city clerk. This is not a great, burden to put upon a claimant and must be complied with, iVo official or employee of the city has authority to waive it. . . .” (p. 62.) (Emphasis supplied.)
For other decisions dealing with the subject and supporting generally what has been heretofore detailed see Jones v. Kansas City, 145 Kan. 591, 66 P. 2d 579, also Thomas v. City of Coffeyville, 145 Kan. 588, 66 P. 2d 600, holding the statute in question created a condition precedent to the bringing of an action and applied to minors as well as adults.
In the face of the statute and the foregoing decisions there can be no doubt that the first three of the heretofore mentioned arguments made by appellant in support of its position on appeal must be upheld. We are inclined to the view the same holds true of argument four but in view of contentions advanced by appellee with respect thereto are disposed to give it further consideration.
The first of appellee’s contentions is that the fourth argument, and for that matter the other three, advanced by appellant are not subject to appellate review because, as the latter frankly concedes, the point made therein was not raised specifically in the court below. There is such a rule and, when the facts warrant, it is frequently applied. However, it has no application where — as here— it is claimed a pleading fails to state a cause of action by reason of failure to disclose compliance with legislative fiat creating a condi tion precedent to the maintenance of an action and everything relied on to support that position is documentary or of such nature this court in passing thereon is in the same position the trial court was in at the time it made its rulings.
In a sense, although recognizing our decisions are uniform to the effect that failure of a petition to disclose the filing of the. statement required under the provisions of 12-105, supra, renders such pleading demurrable for failure to state a cause of action, appellee’s next contention seeks to overrule those decisions. In any event it seeks to avoid their force and effect. He suggests they all deal with situations where the statement was filed with the city clerk too late or where no statement at all, giving the city notice of the claim, was presented to some member of the governing body of the city, hence they are not to be regarded as controlling precedents. Otherwise stated, that the filing of the statement with the city clerk himself, or at least with that office, is not a part of the condition precedent established,' by the legislature. We believe that question has been determined adversely to appellee’s contention by the decisions heretofore cited, particularly by the statement quoted from Cook v. Topeka, supra, and the emphasized language of the portion of the opinion quoted from Mowery v. Kansas City, supra. Re that as it may, and assuming the point has not been specifically determined, we are convinced the filing of the statement with the city clerk is just as much, and just as vital, a condition precedent to the maintenance of the action as the condition prescribing the period of time within which such statement must be filed and we so hold.
Finally appellee contends the allegations of the petition should be construed as stating the statement required by the statute was filed with the city clerk. There is some quibble between the parties respecting whether the amended petition is to be liberally or strictly construed. We are not disposed to labor this dispute and will proceed on the theory such pleading is entitled to a liberal construction. This, of course, means its allegations must be given the benefit of all reasonable inferences that may properly be drawn therefrom when considered in the light most favorable to the party pleading them. However, that does not mean the doctrine of liberal construction can be extended to the point where failure to allege a condition precedent to the maintenance of an action can be ignored, supplied by inference and speculation, or given an ob viously erroneous construction or meaning. When construed as indicated what are the allegations of the challenged pleading with respect to the filing of the claim? It states, as we have heretofore indicated and again repeat for purposes of emphasis, that on February 12, 1953, pursuant to Chap. 12-105, G. S. K. 1949, plaintiff presented to the governing body of the city of Wichita a verified claim for damages. That language is clear and unequivocal and when given its plain and ordinary meaning means exactly what it says, i. e. that appellee presented his claim to the governing body of the city. To hold that such language means he filed his claim with the city clerk would result in supplying something to the amended petition by inference and speculation that is not there. Indeed to do so would give it an entirely different meaning. As has been heretofore demonstrated, the controlling statute required that appellee file his claim with the city clerk, not present it to the governing body of the city, in order to maintain the action, and our decisions, to which we adhere, hold that'he must so allege in order to state a cause of action. The fact he alleges that pursuant to 12-105, supra, he presented his claim to the governing body of the city does not warrant a contrary conclusion. For all the amended petition discloses he may have believed presentation to the governing body was all that the statute required. The inescapeable result is that such pleading failed to state a cause of action and the trial court should have ruled accordingly.
The judgment and order of the district court is reversed with directions to sustain the demurrer. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to quiet title to real estate. The plaintiff recovered and the defendants have appealed.
Plaintiff commenced the action against defendants, J. M. Supernois and the city of Newton, by filing a petition in which she stated that she was the owner in fee simple of the real estate in question and had been in the actual, peaceable, open, adverse, continuous, and exclusive possession thereof for more than twenty years under claim of title; that the defendants, and each of them, claimed some adverse, but nevertheless inferior, right, title, and interest in and to such real estate; and that she should have judgment quieting her title to such property and barring and excluding defendants from all claims of interest therein.
Defendant Supernois answered the petition by denying each and all of its allegations. The city of Newton answered in like manner but in addition alleged it claimed the real estate by dedication from its co-defendant for public street purposes and that by reason thereof its rights therein should be confirmed for the purposes for which the property had been so platted and dedicated and all relief claimed by plaintiff should be denied.
The case came on for trial with issues joined as heretofore related. After plaintiff had adduced her evidence and rested her cause each of the defendants demurred on the ground such evidence failed to establish a cause of action for the relief claimed. When these demurrers were overruled they elected to stand thereon. Following these announcements plaintiff moved for judgment in conformity with the prayer of her petition. Thereupon, the trial court sustained the motion, found the allegations of the petition to be true, and rendered judgment accordingly. After the rendition of this decree the defendants filed separate motions for a new trial. When such motions were overruled they joined in perfecting the instant appeal and now, under proper specifications of error, challenge the propriety o£ the trial court’s action in overruling their respective demurrers and motions for new trial.
A review of the evidence on which this lawsuit must be decided, particularly that relating to the events giving rise to the controversy, is necessary to insure a proper understanding of a decision of the issues involved on appellate review. This, of course, must be made in the light of the well established rule (See West’s Kansas Digest, Appeal and Error, § 927 [5], Trial § 156 [2], [3]; Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, §488, Trial §§149, 150, 151) that in ruling on a demurrer to evidence courts do not weigh or compare contradictory testimony but must accept all evidence as true, give it the benefit of all reasonable inferences that may properly be drawn therefrom, and consider only such portions thereof as are favorable to the party adducing it. So reviewed the record discloses the following facts:
In 1929 Daisy D. Spencer was the owner of and, together with her husband, contracted to sell a certain tract of real estate located in the city of Newton to M. C. Wear. Later, on March 28, 1929, she conveyed this tract, approximately 658.90 feet, east and west, by 329.9 feet, north and south, by warranty deed, her husband joining, to Wear in conformity with the terms of such contract.
Shortly after receiving the deed Wear had the property surveyed and erected a substantial woven wire fence, running north and south, some 30 feet east of what, according to the description thereof as set forth in both the contract and the deed, would be the west line of the property conveyed. This fence is still standing and since its erection all members of the Spencer family, including Daisy D. Spencer, have considered it to be the boundary line between the Spencer and Wear properties and represented it to others as such. In fact they exercised full and complete control over the 30-foot strip of land west of such fence throughout the years, planting it to crops and harvesting them, and during such time neither Wear nor Supernois, his successor in title, at least until the filing of the dedicatory plat to be presently mentioned, ever made any claim of title to such tract or challenged the Spencers’ right to possession and control thereof.
The record without disclosing exactly when, or how, makes it appear that sometime between March, 1929, and the filing of this action Wear, or representatives of his estate, disposed of the property purchased from Mrs. Spencer by selling it to Supernois, who took possession thereof without disturbing the fence standing thereon, and thereafter made no claim to the Spencers of any right, title or interest in and to the 30-foot tract west of the fence. It also discloses, although failing to give the exact date of his action, that Supernois subsequently filed a plat of the land conveyed to Wear by Mrs. Spencer, as South Rreeze Addition to the city of Newton, wherein he dedicated a 60-foot road or street which, according to the legal description of the land described in such plat, included the 30-foot strip or tract of land west of the fence and now in controversy.
In addition it should be noted that in response to a question put to her on cross-examination Mrs. Spencer stated, without objection of any character to her answer, that she knew the fence in question was the line her husband and Wear had established as the boundary.
The principal contentions advanced by appellants as grounds for reversal of the trial court’s rulings are all to the effect that the facts proved fail to establish adverse possession. In support of their position on this point they direct our attention to the fact appellee was the grantor of the land in controversy and insist that under the facts and circumstances heretofore related she failed to overcome the presumption of holding in subservience to the grantee which, under our decisions, is required before a grantor can claim title against his grantee, or the latter’s successor in title, by adverse possession. We have no quarrel with the rule on which appellants rely and admit many cases are to be found where the facts warrant its application. (See, e. g., McNeil v. Jordan, 28 Kan. 7; Dotson v. Railway Co., 81 Kan. 816, 106 Pac. 1045; Sellers v. Crossan, 52 Kan. 570, 35 Pac. 205; Hockman v. Thuma, 68 Kan. 519, 75 Pac. 486; Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 210, 237 Pac. 913.) Indeed, it may be conceded, that if, as appellants contend, this were purely an action to establish title by adverse possession for more than fifteen years and the record disclosed nothing to overcome the presumption of subservience of possession existing in a case where there is privity of title we would feel constrained to concur in their view the trial court should have sustained their demurrers to the evidence. The trouble from their standpoint, as will presently be disclosed, is that under the confronting facts and circumstances the two premises upon which they base their position are erroneous.
Without attempting to exhaust our decisions it may be said this court has long been committed to the rule, recently reaffirmed and restated in In re Moore, 173 Kan. 820, 252 P. 2d 875, where it is held:
“Where parties by mutual agreement fix a boundary line and thereafter acquiesce in the line so agreed upon, it must be considered as the true boundary line between them, even though the period of acquiescence falls short of the time fixed by statute for gaining title by adverse possession.
“The owners of adjoining tracts of land may,, by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line so agreed upon, will be binding upon the parties and their grantees. Such an agreement, followed by possession, is not obnoxious to the statute of frauds.” (Syl. ¶¶[ 2, 3.)
For earlier decisions announcing such rule and applying it to the particular factual situations therein involved see Sheldon v. Atkinson, 38 Kan. 14, 16 Pac. 68; Steinhilber v. Holmes, 68 Kan. 607, 75 Pac. 1019; Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836; Simon v. Mohr, 127 Kan. 401, 273 Pac. 445; Schlender v. Maretoli, 140 Kan. 533, 37 P. 2d 993; Wagner v. Thompson, 163 Kan. 662, 186 P. 2d 278; Fyler v. Hartness, 171 Kan. 49, 54, 229 P. 2d 751.
Under the issues raised by the pleadings there can be no doubt that in order to establish her cause of action to quiet title appellee was not limited to proof of adverse possession but could establish her title by any other means recognized by our decisions. Turning ■ to the record we have little difficulty in concluding, that when liberally construed and given the benefit of all inferences to which they are entitled, appellee’s statement she knew the fence in question was the line her husband and Wear had established as the boundary, when considered in connection with the other circumstances to which we have heretofore referred, was sufficient to bring her cause within the rule announced in In re Moore, supra, and the other decisions to which we have last above referred. This we may add is so even though after making such statement, as appellants point out, the record discloses she also stated she thought the fence was the boundary line and accordingly assumed that it was. Assuming, as we must for purposes of ruling on the demurrers, the first statement to which we have just referred was true she had a right to assume the fence was the boundary line, hence there is no irreconcilable conflict in the succeeding statements. It follows the trial court did not err in concluding appellee’s evidence was sufficient as against demurrers based upon the ground such evidence failed to establish her cause of action.
The first claim of error urged by appellants in connection with the ruling on their motions for a new trial relates to the admission, over their objection, of a statement made by appellee on direct examination in the nature of a conclusion, to the effect that from and after the day Wear built the fence it was the boundary line between the Spencer and Wear tracts of land. Assuming, without conceding, there is merit in appellants’ contention this statement was based on a conclusion, and hence improperly admitted, does not require its determination. Appellants did not move to strik'e out the evidence of which they now complain. Under such circumstances Rule 53 of this court (G. S. 1949, 60-3827) has no application and there is no presumption such testimony was considered or entered into the final decision of the trial court. (In re Estate of Walker, 160 Kan. 461, 163 P. 2d 359; Bradbury v. Wise, 167 Kan. 737, 748, 208 P. 2d 209; Harrington v. Propulsion Engine Corp., 172 Kan. 574, 582, 583, 241 P. 2d 733.) In this contention it will be noted our conclusion the trial court properly overruled the demurrers to the evidence was reached without reference to or consideration of such evidence..
Next it is urged the evidence was insufficient to warrant the trial court’s action in quieting appellee’s title as against the appellants, Having already determined there was sufficient evidence to take the cause to the trier of facts we have little difficulty in reaching a decision on this question. Resort to the journal entry discloses a recitation to the effect the court found that the allegations of appellee’s petition were true and therefore rendered judgment quieting her title. No rule is better established in this jurisdiction than the one that when supported by evidence a trial court’s findings and decision on a factual issue will not be disturbed on appellate review even though the record discloses some evidence which might have warranted a contrary decision. For our last decision announcing this rule see Freeman v. Keltner, 175 Kan. 37, 259 P. 2d 228. Numerous others are cited in West’s Kansas Digest, Appeal and Error, § 1010 [1]; Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, §§ 507, 508.
In view of what has already been stated the city of Newton’s special claims of error, to the effect (1) the statute of limitations does not run against the city so as to obtain title by adverse possession and (2) it obtained its rights of user through the county which is not a party to the cause, hence no judgment barring the city will lie, can be disposed of in summary fashion. One answer to the first claim is that the instant judgment is not based upon title by adverse possession. An answer to the second is that the county, not the city, is the only one who can be heard to contest the judgment on the ground it was not a party to the action. The over-all answer to both of such claims is that notwithstanding their decision the city could acquire no greater rights in the property in question than those held by its predecessors in title.
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The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding in mandamus to compel the State Board of Chiropractic Examiners to reinstate a license previously issued to the plaintiff and arising out of the following undisputed facts.
On October 14, 1950, the above Board issued to plaintiff a license to practice chiropractic and thereafter he established an office in the city of Protection, in Comanche county. In November, 1951, a complaint was made to the Board that on or about August 1, 1951, the plaintiff had been guilty of acts constituting a crime involving moral turpitude, and on December 1,1951, at the direction of the chairman of the Board notice was given plaintiff that he might appear in person or by counsel at the regular January, 1952, meeting of the Board in Topeka and show cause why his license should not be revoked. On January 1, 1952, plaintiff appeared at the meeting of the Board and heard the charges as they were embodied in a letter from the county attorney of Comanche county. He denied the charges and the Board then adopted a motion that the investigation be continued and a committee be appointed to act for the Board. No date for a further hearing was fixed at that time. Later and on January 10, 1952, the Board held a special meeting at Coldwater for the purpose of continuing the investigation. Plaintiff was not present at this meeting. The record does not disclose he had any notice of this meeting. At this meeting a stenographic record was made of the persons interviewed or examined. This record discloses affirmatively that no person interviewed or examined was under oath. At the close of this hearing the Board went to Ashland to interview a witness, but no stenographic record was made. Later the Board adopted a motion that since all the evidence was in and there appeared to be no doubt, the Board find plaintiff guilty as charged, and another motion that plaintiff’s license be revoked for violation of G. S. 1949, 65-1305. On September 30, 1953, plaintiff filed a petition with the Board for reinstatement of his license and was informed by the Board that it would not further review the case nor reinstate plaintiff’s license. In his motion for the writ plaintiff directs attention to the fact the statute above noted contains no provision for review of or appeal from the ruling of the Board. The Board’s answer contains an admission that the revocation of plaintiff’s license was made on the ground set out in G. S. 1949, 65-1305 and that no conviction was ever had against the plaintiff of a crime involving moral turpitude, but that the members of the Board in good faith believed him to be guilty. The Board also alleges that from January 10, 1952, (date of revocation of license) to September 30, 1953, (date of asking reinstatement of license) plaintiff acquiesced in the Board’s action and is now estopped to deny validity of its action, is guilty of laches and comes into court with unclean hands requesting relief in equity.
In reaching a decision we do not find it necessary to discuss in detail each and every contention made by the parties to this proceeding.
Concededly the action of the Board in attempting revocation of the license issued to plaintiff was under G. S. 1949, 65-1305, which for present purposes reads:
“The state board of chiropractic examiners may . . . revoke a license to practice chiropractic . . . upon any of the following grounds, to wit: . . . the conviction of a crime involving moral turpitude . . . Any person who is a licentiate . . . against whom any of the foregoing grounds for revoking ... a license is presented to said board with a view of having the board revoke ... a license, shall be furnished with a copy of the complaint, and shall have a hearing before said board in person or by attorney, and witnesses may be examined by said board respecting the guilt or innocence of said accused.”
There is no contention but that plaintiff was granted a license to practice chiropractic and the principal, if not the sole question, is whether that license was lawfully revoked. We have heretofore noted that the plaintiff had notice of the stated meeting in Topeka held January 1, 1952, and that he appeared there and that no date was fixed for the meeting later held at Coldwater at which he was not present. During the oral argument the Board’s counsel frankly stated he did not believe that plaintiff had any notice of the second meeting. If that be true, plaintiff was deprived of any opportunity to cross-examine witnesses presented by the Board, to produce witnesses on his own behalf or to make his defense. We shall not, however, rest our decision solely on that invasion of his rights.
■ Neither party to this action directs any attention to the statute creating the Board and defining its powers, but we note that it is provided in G. S. 1949, 74-1303, that:
“Said board shall have authority to administer oaths, take affidavits, summon witnesses and take testimony as to matters pertaining to their duties.”
Just why this statute was not observed does not appear; that it was not observed is clear for the exhibit attached to the Board’s answer affirmatively discloses that no witness at the Coldwater hearing was sworn.
Whether we consider the phrase “conviction of a crime” from the standpoint of approved usage, or as technical words having a peculiar and appropriate meaning in law (G. S. 1949, 77-201, second) we can come to no conclusion other than that the phrase means, at least, either a plea of guilty or a verdict to that effect which is the result of a trial in a competent court. We need not here treat cases holding that “conviction” contemplates not only a plea or finding of guilty by verdict, but a judgment thereon. As bearing on the question see Hogg v. Whitham, 120 Kan. 341, 242 Pac. 1021; Oberst v. Mooney, 135 Kan. 433, 438, 10 P. 2d 846; Noller v. Aetna Life Ins. Co., 142 Kan. 35, 46 P. 2d 22; 18 C. J. S. 98; 14 Am. Jur. 759. We have no doubt that as used in G. S. 1949, 65-1305, the phrase “conviction of a crime” means a conviction had as the result of a trial in a criminal action prosecuted by the state. The Board’s answer admits there was no such conviction.
Viewed in its entirety the record discloses that at a hearing of which the plaintiff had no notice, unsworn testimony was received by the Board and on the evidence so received the Board sat in judgment and convicted the plaintiff of a crime involving moral turpitude and on the basis of that conviction then ordered a revocation of plaintiff’s license to practice chiropractic. In its brief the Board does not contend that plaintiff had notice, receipt of unsworn testimony is not mentioned, and no contention is made that the Board had any power to “convict” the plaintiff. The Board seeks to avoid the infirmities noted by contending that plaintiff acquiesced in its judgment.
The gist of the Board’s contention that the plaintiff should not prevail is that issuance of the writ of mandamus rests in the sound discretion of the court (citing The State, ex rel., v. Thomas County, 116 Kan. 285, 226 Pac. 745) and that technical compliance with the law will not be required where such compliance would require a violation of the spirit of the law (The State, ex rel., v. Comm’rs of Phillips County, 26 Kan. 419), and that the statute under which it acted is only one of a series of similar acts pertaining to the healing arts, all designed to protect the public against unqualified persons attempting to engage in such arts, and that the Board is authorized to revoke a license of any licensee where it finds him to be guilty of acts involving moral turpitude. That the issuance of the writ is discretionary nor that it will not issue where compliance would require a violation of the spirit of the law need not be debated, but where the statute, as in the instant case, points out clearly the ground of revocation and the manner in which it may be exercised, it may not be said that the Board has other and further powers. Under G. S. 1949, 74-1303 the Board has power to “adopt such rules and regulations as they deem proper and necessary for the performance of their duties,” and assuming that under such power they could have made rules and regulations applicable to the situation involved, no such rules or regulations, if any were made, are included in the record. We need not consider whether such a rule could have effect beyond the specific requirement of G. S. 1949, 65-1305. The Board further contends that the plaintiff acquiesced in its judgment, and authorities are cited that acquiescence waives the right to appeal or further contest. Without review it may be said the situations considered in those cases were acquiescence in judgments which it was contended were erroneous. The judgment now under consideration was in effect no judgment at all, for the plaintiff had no notice of the hearing and under the undisputed facts, the Board had no power or jurisdiction to find plaintiff guilty of a crime. The Board’s contention that plaintiff is guilty of laches swings around its contention its revocation of plaintiff’s license was merely irregular, a contention we cannot sustain. If any analogy may be drawn, it is that assuming plaintiff’s license was properly revoked, under G. S. 1949, 65-1305 he had a period of two years thereafter to apply to the Board to have his license restored to him. While it would have been possible for the plaintiff to have commenced a proceeding at an earlier date, we are not persuaded that plaintiff has waited too long. And finally the Board contends that plaintiff should have brought an action to enjoin revocation of his license; that injunction was an adequate remedy and that in such circumstances the writ of mandamus must be denied. In support the only case cited is Simpson v. Kansas City, 52 Kan. 88, 34 Pac. 406. A reading of that case shows that validity of paving assessments was involved; that the time in which the assessment could have been attacked by injunction proceedings had expired, and that relief could not later be obtained by mandamus. That case is not decisive. As has been pointed out, the plaintiff was not given notice of the hearing, and the findings of the Board convicting plaintiff of a crime involving moral turpitude and the revoking of plaintiff’s license were beyond its power. We are not persuaded that plaintiff was under any duty to seek injunction against a void order, and is not entitled to maintain the instant action.
Whether plaintiff was guilty of any crime involving moral turpitude was a question to be determined by a jury in a criminal action brought by the state, and no such action was ever filed. Disregarding failure to give plaintiff notice the result is that his license was revoked unlawfully. The judgment of this court is that it be restored to him by action of the defendant Board, and it is so ordered.
Harvey, C. J., dissents. | [
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The opinion of the court was delivered by
Parker, J.:
Plaintiff commenced this action for divorce, alimony and division of property, charging her husband with extreme cruelty. By way of answer and cross petition the husband denied the allegations of the petition, charged his wife with cruelty and asked that he be granted a divorce. With issues so joined the cause was tried in the district court of Sedgwick county where the trial court denied the parties a divorce but, in conformity with G. S. 1949, 60-1506, made division of their property. Thereupon, after the overruling of his motion for a new trial, the husband perfected an appeal from such judgment which, when it reached this court, was docketed as case No. 38,965.
On October 3, 1952, some three days after perfecting the appeal just mentioned, the parties induced the trial court to set aside its order overruling plaintiff’s prior motion for a new trial and prevailed on that tribunal to retry the issues. On the same date, based upon evidence then adduced, the court found that plaintiff should be granted a divorce from the defendant; that its prior order regarding division of their property should remain in force and effect; and rendered judgment in accord with such findings. Following the rendition of this decree defendant moved for a new trial on the portion of the judgment relating to the property division only. When such motion was overruled he perfected an appeal from that ruling. It is docketed in this court as case No. 38,986. Subsequently 38,965 was consolidated with 38,986 and since the two appeals have been carried on our docket and on the briefs in that manner. Nevertheless, since the record discloses the parties sought and obtained a new trial on all issues involved in the action after defendant had perfected the first appeal, it should be pointed out that such appeal no longer presents any issues for appellate review.
From what has been related it appears the sole issue now involved on appellate review is whether the trial court erred in the division of property.
The precise question thus raised is not new to this court and, of course, must be disposed of in the light of rules, governing the decision of questions of like import, long since well established, but nevertheless recently repeated, and adhered to in Reedy v. Reedy, 175 Kan. 438, 264 P. 2d 913, which holds:
“Under the provisions of G. S. 1949, 60-1511, when a husband is granted a divorce by reason of the fault or aggression of the wife, the division of property to be made between the parties, irrespective whether such property has been jointly acquired or is the separate property of the husband, is a matter which rests in the sound judicial discretion of the trial court.
“A division of property made by the trial court in a divorce action will not be disturbed unless it is clearly shown that there was an abuse of discretion.” (Syl. ¶|1, 2.)
For other decisions of like import see Harris v. Harris, 169 Kan. 339, 219 P. 2d 454; Brown v. Brown, 171 Kan. 249, 232 P. 2d 603, 32 A. L. R. 2d 102; Henry v. Henry, 171 Kan. 307, 232 P. 2d 473; Berndt v. Berndt, 175 Kan. 134, 259 P. 2d 197.
The fact, as may be noted, that the foregoing rules are stated and applied in a case where a husband was granted the divorce for fault of the wife makes them no less applicable in the case at bar. This court has held many times that when a divorce is granted a wife by reason of the fault of her husband an allowance of alimony or division of property made by the trial court rests in its sound discretion and will not be set aside or disturbed on appellate review unless it clearly appears from the record that it failed to exercise or abused that discretion. See Mathey v. Mathey, 175 Kan. 446, 264 P. 2d 1058; Krueger v. Krueger, 174 Kan. 249, 255 P. 2d 621; DeWitt v. DeWitt, 170 Kan. 58, 223 P. 2d 970; Carlat v. Carlat, 168 Kan. 600, 215 P. 2d 200; Stanton v. Stanton, 166 Kan. 386, 201 P. 2d 1076; Walno v. Walno, 164 Kan. 620, 192 P. 2d 165.
Turning to the record it may be said the journal entry discloses that the trial court, without specifying their value, awarded appellee a Ford automobile and two tracts of real estate located in the City of Wichita subject to a mortgage of $12,277.85. It is also to be noted both parties concede the net worth of this property was $36,222.15 and agree that on the date of the rendition of the decree appellant was also the owner of a Cadillac automobile and two other pieces of property in Wichita (one the family home and the other in which he conducted his business as a real estate agent) subject to a mortgage of $10,500.00, all of the net worth of $25,-500.00.
From this point on nothing regarding the financial status of the parties is conceded. In a general way it may be stated appellee contends appellant owned a going real estate business and other properties of substantial value, while the appellant insists he owned no other property, that his real estate business was of little, if any, value, and tibat he owed obligations in excess of $24,000.00.
It would be of no benefit to the bench and bar, add nothing to our reported decisions and serve no useful purpose, to either detail or labor a confused and conflicting record respecting the evidence relating to appellant’s financial condition. It suffices to say the parties themselves cannot even agree as to its import and that a painstaking review of the evidence presented by the record leaves us in a position where we are unable to form a definite or accurate opinion on that question. In fact if we were forced to reach and announce a conclusion thereon it would have to be based on guess, speculation and conjecture. However, it may be said, the record does make it clear that the parties were married in 1929 and raised two daughters who have reached an age where their custody is no longer of concern to this court; that they acquired little, if any, property of value prior to January, 1941; that whatever property they owned on the date of the decree, including that to which we have heretofore specifically referred, was acquired between that date and September, 1952; that on the date of the decree appellant was a real estate broker with a going real estate business, the office overhead of which was $600 per month; that his gross income for 1952 from such business amounted to at least $42,000.00, if not more; that his net income for federal and state taxes in 1951 was $31,396.69. Such record also discloses that while testifying as a witness in his own behalf appellant’s response to questions respecting the extent of other assets owned by him, particularly those asked him by counsel for appellee, was so evasive, conflicting and contradictory that the trial court might well have concluded he owned additional properties of considerable value and given little credence to his statements to the effect he owed and was obligated to pay liabilities in excess of $24,000.00, over and above any and all equities he might have therein.
With a record such as has been heretofore outlined, and conceding that the award complained of seems to be quite liberal on the face of what may be definitely ascertained therefrom, we are not prepared to say the division of property made by the trial court was so unreasonable, exorbitant or disproportionate as to constitute an abuse of judicial discretion and, of a certainty, would not be warranted in holding action of that character on its part has been clearly shown. Therefore adherence to the applicable rules, so well established by our decisions, compels a conclusion its judgment cannot be disturbed and should be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
This is an original proceeding in habeas corpus in which petitioner, who is confined in the state penitentiary awaiting execution of a death sentence, seeks to have his conviction set aside and a new trial.
Petitioner and one Isgrigg were charged in Johnson County with the commission of four felonies, the first count of the information charging murder in the first degree of one Carver, a deputy sheriff of that county. A severance was requested and granted, and petitioner was by a jury found guilty of all four counts of the information. His punishment on the first degree murder count was fixed at death. On the other three counts he was sentenced to terms of imprisonment which were not to begin to run except in the event the sentence on the first count was not carried out.
His motions for a new trial and in arrest of judgment being overruled, petitioner appealed to this court, and our opinion affirming the judgment of the trial court is found at State v. Martin, 175 Kan. 373, 265 P. 2d 297. Petitioner’s motion for a rehearing was denied on January 26, 1954.
Subsequent to petitioner’s conviction Isgrigg entered a plea of guilty to all four counts of the information and was sentenced to life imprisonment on the count charging murder in the first degree, and to a term of fifty years on the other three counts. He, like petitioner, is now confined in the state penitentiary.
Following certain proceedings, not material for our purposes, petitioner, through court-appointed counsel, filed a petition for a writ of habeas corpus in the United States District Court of the District of Kansas, and it appears that at the hearing thereon that court pointed out the fact that petitioner had not exhausted his remedies in the state courts and directed that before seeking relief in the Federal courts he should exhaust such remedies. Pursuant to such order, counsel who had been appointed to and who did represent petitioner at his trial in Johnson County and on the appeal to this court filed the instant original proceeding in habeas corpus, and the matter thus stands for decision.
To do so would serve no useful purpose and therefore no attempt will be made to summarize the numerous contentions made by petitioner. All, with the exception of two, were noted, considered, and decided adversely to his contentions in the exhaustive opinion filed by this court in State v. Martin, supra.
The two additional contentions, however, will be discussed briefly.
First, it is contended by petitioner that at his preliminary hearing the examining magistrate erroneously refused to appoint counsel to represent him upon request therefor being made.
G. S. 1949, 62-615, provides that at the preliminary hearing for one charged with a felony such person “may be assisted by counsel in such examination,” but we know of no statute or decision of this court, and none has been cited, which requires an examining magistrate to appoint counsel in such cases. The statute (G. S. 1949, 62-1304, later amended, and now appearing as G. S. 1953 Supp. 62-1304) pertaining to the appointment of counsel by the court applies to a defendant “about to be arraigned upon an indictment or information for any offense against the laws of this state.” Obviously the latter statute refers to one being placed on trial upon an indictment or information in the district court and does not refer to a preliminary examination upon a complaint and warrant before an examining magistrate.
There is no merit to petitioner’s contention with respect to this matter.
The other ground relied upon by petitioner for the issuance of a writ is as follows:
We are advised that subsequent to Isgrigg’s incarceration in the state penitentiary pursuant to his plea of guilty to the charges of murder in the first degree and the other three felony counts, he made certain statements to respondent warden and other officials to the effect that it was he, and not petitioner, who fired the shots on the fatal night in question. In this connection, we have been furnished a transcript of a question-and-answer interview had by the officials with Isgrigg since his confinement in the penitentiary, which such “statement,” we are advised, he refused to sign. Also, we have been furnished copies of affidavits and statements made by law-enforcement officers with respect to previous interviews with Isgrigg concerning events of the night in question, the substance of which is contrary to the statements attributed to him at the more recent interview in the penitentiary.
Counsel for petitioner concede the general rule that when two persons embark upon a series of felonies such as petitioner and Isgrigg engaged in on the night in question, and a murder is committed, the question concerning which felon did the actual shooting is immaterial, and that both are equally guilty of murder (State v. Bundy, 147 Kan. 4, 75 P. 2d 236), but contend this:
It is argued that Isgrigg was unwilling to testify in petitioner’s behalf at the latter’s trial, and that, under the circumstances, he of course could not have been compelled to do so. It is contended that had the jury had before it the statements now attributed to Isgrigg it is highly probable a sentence of life imprisonment, rather than one of death by hanging, would have been returned, and for that reason it is strenuously urged that this court should now order a new trial for petitioner.
We are unable to agree with this contention.
Assuming, solely for the sake of argument, that Isgrigg’s out-of-court statements to the effect that petitioner did no shooting on the night in question are true, such fact, under the circumstances, would not exonerate petitioner of the crime of murder in the first degree. Respondent cites a number of authorities from other jurisdictions, both Federal and state, but which, in the interest of brevity, are not set out herein, to the effect that a subsequent assertion of innocence by one convicted of a crime may not be considered in an application for a writ of habeas corpus. That such is the rule in this state is evidenced by what was said in Crebs v. Amrine, 153 Kan. 736, 745, 113 P. 2d 1084, 317 US 699, 87 L ed 559, 63 S Ct 441, 318 US 788, 87 L ed 1155, 63 S Ct 982; Crebs v. Hudspeth, 160 Kan. 650, 164 P. 2d 338, 328 US 857, 90 L ed 1628, 66 S Ct 1346; and Merideth v. Amrine, 155 Kan. 7, 122 P. 2d 759, 316 US 670, 86 L ed 1745, 62 S Ct 1047, 316 US 711, 86 L ed 1777, 62 S Ct 1275.
This matter might be a talking-point in an application for executive clemency in order to spare petitioner’s life, but it affords no ground for release or for the granting of a new trial in a habeas corpus proceeding.
This proceeding is the third attempt in this court by petitioner to escape the penalty imposed upon him for conviction of murder in the first degree. A proceeding in habeas corpus cannot be resorted to as a substitute for an appeal. (Engling v. Edmondson, 175 Kan. 883, 885, 267 P. 2d 487.) In fact, what was said recently in a proceeding similar in many respects to the instant action applies to the situation here presented:
“The result, since this court is committed to the rule that a habeas corpus proceeding is not a substitute for appellate review (West’s Kansas Digest, Habeas Corpus, § 4) and cannot be used as a supplement to an appeal (Harrison v. Amrine, 155 Kan. 186, 124 P. 2d 202) or as a guise for a second appeal (Leigh v. Hudspeth, 169 Kan. 652, 219 P. 2d 1074), is that the petition discloses no basis for the granting of a writ of habeas corpus. Therefore the writ prayed for must be denied.” (p. 2 — Germany v. Hudspeth, 174 Kan. 1, 252 P. 2d 858.)
The record discloses no ground for the issuance of a writ and it is therefore denied. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original action in quo warranto brought by the state of Kansas on the relation of the attorney general to oust the Kansas Turnpike Authority, hereafter referred to as the Authority, from attempting to exercise the powers and duties purportedly conferred by Laws 1953, Ch. 308, now appearing as G. S. 1953 Supp., 68-2001 to 68-2020 both inclusive, references hereafter being made to the latter under chapter and section number only, for the asserted reasons that the act creating the Authority is unconstitutional.
We need not detail the allegations of the petition nor of the answer of the Authority, it being sufficient to state that they form an adequate basis for the contentions of unconstitutionality as presented in the State’s brief and as hereafter discussed. We note that the petition also alleges that certain proceedings of the Authority had under the act are idtra vires and not authorized by the act and contentions thereunder are later discussed.
The act under attack consists of twenty sections creating the Authority and fixing its powers and duties. In view of the contentions made by the State, it is not necessary that a detailed review be made of the statute as attention to specific provisions will be more fully paid in discussing these contentions. In a very summary way it may be said the act bears a long title comprehensive of the contents of the act, and that the act provides for the construction of a specified type of turnpike projects which term includes express highways and toll roads, and that the Authority created is authorized and empowered to construct, maintain, repair and operate such turn.pike projects, and to issue revenue bonds of the Authority, payable solely from revenues, to finance such projects; that no project shall be undertaken unless the project and the location thereof have been thoroughly studied with respect to traffic, engineering, cost and financing nor unless such study shows: (a) that public funds for construction are not available; (b) that the construction can be financed wholly through investment of private funds in toll road revenue bonds; and (c) that the project and indebtedness incurred will be entirely self-liquidating through tolls and other income from operation of the project. The Authority created consists of seven members four of whom are appointed by the governor, the other three being the state director of highways, the chairman of the committee on highways of the senate, and the chairman of the committee on roads and highways of the house of representatives. Provision is made for election of its officers by the Authority. The act contains a general grant of power to the Authority which includes the power to adopt bylaws; to sue and be sued; to determine the location, subject to the approval of the state highway commission, of each turnpike project, its design and materials of construction and construct, maintain, repair and operate the same; to issue turnpike revenue bonds payable solely from tolls and revenue pledged for their payment; to fix and revise from time to time and charge and collect tolls for transit over each project; to establish rules and regulations for use of the project; to acquire, hold and dispose of real and personal property in the exercise of its powers and duties; to designate the location and establish points of ingress and egress for each project; to make all contracts necessary or incidental to the performance of its duties; to employ consulting engineers, attorneys, accountants, construction and financial experts and other employees; to accept and receive federal grants in aid of construction of a project and to accept and receive aid or contributions of money, property, labor or other things of value from other sources to be used only for the purpose for which the grants and contributions may be made and to do all acts and things necessary to cany out powers expressly granted. Many incidental powers are also granted which will be referred to later where necessary. Provision is made for the acquisition of right of way and for over or under passing railroad rights of way. The Authority is empowered to issue turnpike revenue bonds to pay the cost of the projects, the maturity dates and interest rates being limited, the bonds to be of denominations as determined by the Authority which may sell the bonds in such manner and for such price as it may determine will best affect the purposes of the act, and that the proceeds of the bonds shall be used solely to pay the cost of the project. Under 68-2008 it is provided that revenue bonds issued under the act shall not be deemed to constitute a debt of the state or of any political subdivision of the state or a pledge of the faith and credit of the state or any political subdivision of it, but all such bonds shall be payable solely from the funds provided therefor from revenues, and that all revenue bonds shall contain on the face thereof a statement to the effect that neither the state nor the Authority shall be obligated to pay the bonds or interest thereon except from revenues of the project and that neither the faith and credit nor the taxing power of the state or any political subdivision thereof is pledged to the payment of principal or interest on such bonds. By further provision the Authority is authorized to fix, charge and collect tolls and to make contracts for use of right of way for public utilities, filling stations, garages and restaurants and to fix charges for such use, and for the ultimate application of collections made to the retirement of the revenue bonds. The provisions of the statute as to remedies of bondholders, that the Authority shall be exempt from taxation, and that the bonds are eligible for specified investments, need no present notice, nor do other provisions with reference to operation of the project, the restoration and repair of private property, agreements with political subdivisions, annual reports, and restrictions on employees contracting with the Authority. By another section of the act it is provided that when a project has been completed and the bonds have been paid or a sufficient amount for that purpose shall have been set aside in trust for the benefit of the bondholders, the project shall become a part of the state highway system and shall thereafter be maintained by the state highway commission which is given power to fix, revise, charge, and collect tolls, as more specifically set forth in 68-2017. We note also that under 68-2018 to provide for preliminary expenses of the Authority in carrying out the act the state shall not appropriate any money from the state general fund but shall appropriate such amounts as may be necessary not exceeding $25,000 for any one fiscal year from the state highway fund, and, in effect, be repaid when revenue bonds are sold. The final section of the act makes it unlawful for any person using the turnpike project to fail or refuse to pay the toll provided and fixes the punishment.
The State presents its contentions that the act in question violates our state constitution under ten titles which will be stated in substance as presented by it, and in the same order. Under Title XI the question of claimed ultra vires acts of the Authority will be considered. Of necessity there is some overlapping of discussion under the several titles.
I.
Does the act violate Art. II, § 1 of the constitution for the reason it constitutes an unlawful delegation of power?
The above section of the constitution provides that the legislative power of this state shall be vested in a house of representatives and senate. The State directs attention to Johnston v. City of Coffeyville, 175 Kan. 357, 264 P. 2d 474, and State, ex rel., v. Hines, 163 Kan. 300, 182 P. 2d 865, and argues the act under attack constitutes an improper delegation of legislative powers in that: 1. It fixes no standard for the selection of locations of turnpike projects; 2. The Authority is given uncontrolled discretion in respect to the employment of experts, employees and agents and the fixing of their compensation; 3. It authorizes the issuance of revenue bonds without limitation of the amount thereof, and their sale at public or private sale as the Authority in its discretion may determine; and 4. It authorizes the state highway commission to advance funds for preliminary studies in connection with the construction of a turnpike project without any provision for determining the circumstances under which the money shall be advanced or the extent of the advance. In its brief the State does not present any specific argument on the propositions advanced by it.
We shall not dwell at length on the two decisions last above noted. In the City of Coffeyville case the statute provided for improvement of a county road one-half of which was in the county and one-half of which was in the city, and made detailed specific provision for assessing the cost of that part lying in the county, but provided that the city should apportion its share “on an equitable ratio among the taxpayers.” The city passed an ordinance levying an assessment on an equal front foot basis on lots abutting the road. This court held the ordinance invalid as being beyond the delegated power of the city and as taking property without due process of law, it being said in the opinion that the statute authorizing the improvement did not fix any reasonably clear standard under which the city must act.
The Hines case involved a school district reorganization act. In the course of a long opinion discussion was had of the delegation of legislative power as well as of administrative power, to which reference is made, and it was held that legislative power, as distinguished from administrative power, cannot be delegated unless there is constitutional sanction therefor, and that a delegation of administrative authority must fix a reasonably clear standard which governs the exercise of tire authority.
As originally adopted our constitution provided that the state shall never be a party in carrying on any work of internal improvement. The section was amended in 1920 to provide that the state could aid in the construction of roads and highways under conditions no longer of importance and it was further amended in 1928 by adding to the language first used that the state may adopt, construct, reconstruct and maintain a state system of highways but no general property tax shall ever be laid or bonds issued by the state for such highways. After the amendment, statutes were enacted for financing the state highway system and for the issuance of tax anticipation warrants payable solely from excise tax and were considered in State, ex rel., v. State Highway Comm., 138 Kan. 913, 28 P. 2d 770; and for the establishment of the secondary road system and its financing by revenue anticipation warrants, which were considered in State, ex rel., v. State Commission of Revenue and Taxation, 163 Kan. 240, 181 P. 2d 532. In each case contentions of unconstitutionality under the above constitutional provision were denied. In the last cited case “state system of highways” was defined, it was said that “The legislature, as the representative of the public, has plenary power over streets and highways” and that under the constitution the state has power to classify all of the highways of the state and to provide for their construction and maintenance. See the discussion under Title III, infra.
Without further discussion, we think it clear that as this court has heretofore approved the construction of that part of the “state system of highways” designated in the statutes as “the state highway system” (G. S. 1949, 68-401 et seq.) and the secondary road system (G. S. 1949, 68-1701 et seq.) and has recognized that the state legislature may make further classification, and as the State does not now contend to the contrary, we take it as accepted that the legislature had power under the constitution to create the Authority and to empower it to construct turnpike projects. We need not pause to separate any possible delegation of legislative from administrative or executive power, but remark that generally speaking the delegation is of the administrative duty to construct and maintain turnpike projects. Are the State’s contentions there is lack of standards sound?
The constitutional provision for highway construction is not self-executing and requires legislative action. It is apparent that the legislature was not in a position to determine positive location of toll roads or turnpikes, the length of a particular project, and cost of right of way, the over-all cost of construction and all the minutia of facts so that it could pass an act in which nothing was left for future determination. A reading of the act passed makes it clear that any project to be constructed is to be self-liquidating and that no funds resulting from any general tax are to be used for construction, operation or maintenance of any project, and that before a project is undertaken it must be determined that when completed it will earn a revenue from tolls and income arising from operation of the project to pay the principal and interest of the revenue bonds to be issued and sold to raise funds to initiate and complete the project. The act makes it clear the legislature was aware that only intensive studies would reveal whether such a project could be constructed from prospective available funds arising from the sale of revenue bonds and whether a project between termini within the state would be financially feasible and would facilitate vehicular traffic. ' The legislature therefore created the Authority and empowered it to issue revenue bonds payable solely from revenues to pay the cost of a toll road project but it provided that no such project should be undertaken unless and until such project and its proposed location have been thoroughly studied with respect to traffic, engineering cost and financing nor unless the study showed that public funds for construction of a free expressway are not available; that the construction of a toll expressway can be fi nanced wholly through investment of private funds in toll road revenue bonds, and that the project and indebtedness therefor will be entirely self-liquidating through tolls and other income from operation of the project. Coupled with the above is a general grant of powers which includes the power to employ consulting engineers, attorneys, accountants and construction and financial experts to make the requisite studies. Further powers granted need no present notice. Without further elaboration we are of the opinion that when the nature and magnitude of the contemplated improvement; the practicality of location of a particular toll road; the feasibility of such a project from a financial standpoint and the over-all cost of such a project to be retired from revenue bonds and other income from operation are considered, that the statute does fix a reasonable standard and guide for the selection .of the location of turnpike projects and for the Authority to proceed to construct such a project on the locations selected.
With respect to contentions above stated as to the Authority’s employing experts and others and fixing their compensation and issuing bonds and selling the same at public or private sale no separate argument is made by the State. We know of no constitutional impediment. The question is one within the discretion of the legislature, and the question of the wisdom, justice and expediency of the legislation respecting the above is for that body and not for the courts. See discussion on this phase under Title IV, infra.
With respect to the State’s contention the act authorizes the state highway commission to advance funds to the Authority for preliminary studies without determining the circumstances under which such money shall be'advanced or the extent of the advance, we see little that warrants extended discussion. The act states that to provide for preliminary expenses of the Authority the legislature shall not appropriate any moneys from the state general fund but shall appropriate "such amounts as it may deem necessary” not exceeding $25,000 for any one fiscal year “from the state highway fund.” There is no grant of power to the Authority — what amount is to be appropriated is retained by the legislature. No constitutional question is involved. And see the discussion in Title V, infra.
The Authority, in its brief, directs our attention to decisions from other states wherein validity of statutes with respect to toll roads was upheld. These decisions will not be noted or their constitutional backgrounds discussed for we are of the opinion the matter is controlled by our own course of decisions, referred to throughout this opinion. The State’s contentions under this title cannot be sustained.
II.
Does the act violate Art. XI, §§ 6 and 7 of the constitution which specifically prohibit the state from contracting a debt unless the proposed law for creating the debt shall be first submitted to a direct vote of the electors of the state?
The argument made under this title is much more limited than its language suggests.
The State in its brief quotes the above constitutional provisions, which need not be set forth at length here. In general they provide that for the purpose of making public improvements the state may contract debts not in excess of one million dollars, and that no debt shall be contracted, except as provided, unless the proposed law shall first be submitted to a direct vote of the electors. The State argues that although the act purports to create the Authority as a body politic and corporate, it is an alter ego of the state; that it may sue and be sued in its own name, and although the act provides bonds issued under it shall not be deemed to constitute a debt of the state, the Authority may be sued and a judgment recovered, which judgment is not by the act made payable solely from the revenues of the Authority and would constitute a debt of the state; that the state, as a sovereign is immune from suit without its consent, (Hyre v. Sullivan, 171 Kan. 309, 232 P. 2d 474) but that the act grants the consent of the state to be sued without provision of any funds to pay any judgment which might be recovered, a debt is created without vote of the electors, and thus the constitution is violated. In view of the limited contention made we need not point out that a fundamental distinction has been recognized between “public improvements” covered by the above sections and “works of internal improvement” covered by Art. XI, § 9 of the constitution. See State, ex rel., v. State Highway Comm., 138 Kan. 913, 917, 28 P. 2d 770. In that case the court also considered the effect of provisions ' in the state highway commission act that the commission was a body corporate with power to sue and be sued, a situation much like that now before us, saying:
. “By our constitutional provision (art. 11, §8) it is the state which is authorized to construct and maintain a state system of highways. By chapter 225 of the Laws of 1929 the legislature created a highway commission to perform those state functions and provided funds for that purpose. It declared the commission ‘shall be a body corporate, with power to sue and be sued/ thus making it a quasi-corporate body to carry forward the work for the state of constructing and maintaining a state system of highways. (McCandliss Construction Co. v. Neosho County Comm’rs, 132 Kan. 651, 296 Pac. 720; Payne v. State Highway Comm., 136 Kan. 561, 16 P. 2d 509.) The state has given its consent to be sued by an action against the state highway commission with respect to contracts it is authorized to make or was required to take over. It also has given its consent to be sued for damages under certain circumstances by an action against the state highway commission. (R. S. 1931 Supp. 68-419.) But the state has not given its general consent to be sued for all purposes. (Barker v. Hufty Rock Asphalt Co., 136 Kan. 834, 18 P. 2d 568.) The state highway commission is therefore acting for the state in all of its activities authorized by statute for the construction and maintenance of state highways. The funds which it uses for that purpose are state funds, and the warrants it draws on the fund are state warrants, payable, however, from the fund, and are general as they apply to this fund.” (1. c. 917)
The State’s argument does not indicate whether the judgment it states may be recovered is for contract or tort liabilities. Without further discussion we think it may be said that if contract liability is what is meant, the question was laid to rest in the last cited case. If tort liability is meant, it must suffice to say that at no place in the act is there any waiver of the state’s immunity.
The State’s contention that the creation of the Authority as a body corporate and politic with power to sue and be sued constitutes a waiver of immunity cannot be upheld, and unless it be upheld, there is no basis for a contention that a judgment against the Authority would constitute a debt of the state.
III.
Does the act violate Art. XI, § 9 of the constitution in that it purports to make the state a party to the construction of a work of internal improvement?
The State directs our attention to the fact it was stated in State, ex rel., v. State Highway Comm., 138 Kan. 913, 919, 28 P. 2d 770, that as originally adopted the above section applied to turnpikes, canals and the like, and that the section had been amended in 1928 to provide the state might adopt, construct, reconstruct and maintain a state system of highways, but no general property- tax shall ever be laid nor bonds issued by the state for such highways, and it contends that it is apparent from the act that the turnpike project will not be a part of the state highway system until all of the bonds issued have been retired as provided by Sec. 17 of the act. The state does not pursue the matter further, and we find some difficulty in learning its precise contention.
If the argument is predicated on the proposition the terms “state system of highways” and “state highway system” are synonymous, and that the turnpike project must fail unless it is a part of the state highway system, it cannot be sustained. In State, ex rel., v. State Commission of Revenue and Taxation, 163 Kan. 240, 181 P. 2d 532, constitutionality of legislation creating the secondary road system was involved. In the course of that opinion reference was made to the fact the state highway commission was authorized to designate and improve “a state highway system” (G. S. 1945 Supp., 68-406) and that it was argued that no authority existed to establish an additional secondary road system, as the attacked legislation attempted. After directing attention to the fact the legislaure had plenary power over highways, the court further said:
“We think the phrase, ‘a state system of highways,’ in our constitution (sec. 9, supra) is broad enough to authorize the state to classify all the highways of the state and to provide for their construction and maintenance either by the state or by any of its political subdivisions, or by any combination of them, as it may deem proper. It is well settled that the state, through its legislature, may exercise any governmental powers not granted to federal government and not prohibited by our constitution. (Jansky v. Baldwin, 120 Kan. 332, 243 Pac. 302; Lemons v. Noller, 144 Kan. 813, 63 P. 2d 177.) Certainly the power authorized to be exercised by the constitutional provision was not exhausted by the establishment of the state highway system under G. S. 1945 Supp. 68-406.” (1. c. 247)
Although not argued by the State we think it clear- the legislature had power to create an arm of the state other than the state highway commission to construct a particular type of highway; that the proposed turnpike project is a part of a state system of highways; that its cost is not to be paid by any general property tax nor by bonds to be paid by a general property tax; that it was within the power of the legislature to provide that at a fixed time, the turnpike project will become a part of the state highway system subject to maintenance, operation and control of the state highway commission as the act provides. The State’s third contention is not sustained.
IV.
Does the act violate Art. II, §§ 1 and 3 of the constitution in that it constitutes an unauthorized attempt to confer executive powers upon members of the legislature and to increase their compensation?
Article II, § 1 above referred to states that the legislative power of the state shall be vested in a house of representatives and senate, while § 3 states that members of the legislature shall receive as compensation for their services a stated sum for each day’s actual services at regular or special sessions and a sum for expenses to be fixed by law and not to exceed a stated amount per day and travel expenses. Under 68-2003 of the act in question the chairman of the committee on highways of the senate and the chairman of the roads and highways committee of the house are ex-officio members of the Authority, each member of the Authority to receive $25.00 for each day actually spent in the performance of his duties, not exceeding $2,500 in any one year, and to be reimbursed for his áctual expenses necessarily incurred in the performance of his duties.
The State’s contention is that it is fundamental that all officers who have the appointing power are disqualified for appointment to any office to which they may make appointments (67 C. J. S. pg. 130) and that such a policy is founded upon sound reasoning as it takes away from a legislator any bias or prejudice in his vote (Meredith, Atty. Gen., v. Kauffman, 293 Ky. 395, 169 S. W. 2d 37). The State further contends that the legislature cannot interfere with nor exercise any powers properly belonging to the executive department (16 C. J. S. pg. 332) and argues that, if it may appoint two members, it may appoint the full membership of the Authority and that such action would be a clear encroachment of the legislative power upon the executive power. And finally, the State contends that the legislature, by including two of its members as ex-officio members of the Authority, has provided for an increase in their compensation contrary to the constitutional limitation noted, and in connection our attention is directed to The State v. Dean, 103 Kan. 814, 176 Pac. 633, where no constitutional question was involved but where it was held to be against public policy for a commission to which the sum of $50,000 was appropriated to carry out the purposes of the act creating the commission, the members of which were to serve without pay, to appoint one of the members as secretary and to fix and pay his salary for services performed under the act.
We first note that there is no provision of our constitution with reference to the power of the legislature to provide that some one or more of its members shall be ex-officio members of a board, com mission or other body created by it. That the legislature has so provided in many instances must be conceded. We are not disposed to search for all statutes where it has done so but a list would include the following from G. S. 1949:
20-2201, creating the judicial council of which the chairmen of the judiciary committees of the house and senate are ex-officio members (no salary but are paid necessary expenses);
46-404, creating the Kansas commission on interstate cooperation of which the five members of the senate committee on interstate cooperation and the five members of the like house committee are made members. No provision is made as to salary or expenses;
And see 46-301 et seq. and 46-401 et seq. for other instances where members of the legislature are ex-officio members of councils or boards created;
76-201 et seq., creating a committee to investigate complaints of official misconduct for which five members of the legislature are to be appointed and to receive the per diem and mileage they would be entitled to during the session of the legislature.
And the following instances may be found in G. S. 1953 Supp.:
74-4301 et seq., creating the motor vehicle reciprocity commission of which the chairmen of named committees of the legislature are made ex-officio members and to receive actual expenses but no compensation for services;
75-3601 et seq., creating the state office building commission to which only members of the legislature shall be appointed, and omitting provisions as to expiration of term, they shall not be entitled to any compensation “during any regular or special session of the legislature”;
75-3708, creating the state finance council consisting of six members including the president pro tem of the senate, the speaker of the house and the chairmen of the ways and means committees of the senate and the house, who shall be compensated for time spent in attendance at meetings at the rate of twenty dollars per day and actual traveling and necessary expenses in attending meetings.
In. McAllister v. Fair, 72 Kan. 533, 84 Pac. 112, 115 Am. St. Rep. 233, 3 L. R. A. n.s. 726, this court was asked to declare as a matter of public policy that a husband who had killed his wife could not inherit her estate. There was no statute that so provided. In refusing to do so, the court said, in part:
“The right to determine what is the best policy for the people is in the legislature, and courts cannot assume that they have a wisdom superior to that of the legislature and proceed to inject into a statute a clause which, in their opinion, would be more in consonance with good morals or better accomplish justice than the rule declared by the legislature. It has been said that ‘the well-considered cases warrant the pertinent conclusion that when the legislature, not transcending the limits of its power, speaks in clear language upon a question of policy, it becomes the judicial tribunals to remain silent.’ (Malinda Deem et al., v. Thomas Millikin et al., 6 Ohio C. C. 357, 360.)” (1. c. 536)
In the recent case of Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934, it was held:
“The declaration of public policy is primarily a legislative function though courts have authority to declare a public policy which already exists and to base its decisions upon that ground, but in absence of a legislative declaration before courts are justified in declaring existence of public policy it should be so thoroughly established as a state of public mind so united and so definite and fixed that its existence is not subject to any substantial doubt.”
It has been repeatedly held that questions of public policy are for legislative and not judicial determination, and where the legislature does so declare, and there is no constitutional impediment, the question of the wisdom, justice or expediency of the legislation is for that body and not for the courts (see West’s Kan. Dig., Const. L. § 70 (3) and Hatcher’s Kan. Dig., Const., L. § 31).
The State’s contention that the act constitutes an unauthorized attempt to confer executive power upon members of the legislature is not extended further than to the appointment of two of its committee chairmen as ex-officio members of the Authority. While the legislature cannot interfere with nor exercise any powers properly belonging to the executive, it may engage in activities which may properly be regarded as incidental to and within the scope of its legislative duties, and it is not an encroachment on the executive for the legislature to create a commission and to designate its members to perform delegable legislative duties. See 16 C. J. S. pg. 332, et seq. A power of appointment is not an exclusive function of the executive, nor has it ever been so considered.' The above statutes and many others that could be cited demonstrate it has not been so considered, and if it were fully so this court would be without authority to appoint its own clerk and. reporter. Insofar as the State’s argument that the salary of a legislator is increased beyond constitutional limitations is concerned, it is observed that the compensation paid is not connected with any duty those named persons have as members of the legislature, but is for the performance of administrative duties as members of the Authority.
We are of the opinion the contention made under this heading cannot be sustained.
V.
Does the act violate Art. II, §§16 and 24 of the constitution for the reason 68-2018 is an appropriation matter not covered by the title of the act as required by Sec. 16 and purports to make an appropriation for a longer period than two years as prohibited by Sec. 24?
The above constitutional provisions cover that no bill shall contain more than one subject, which shall be clearly expressed in its title and that no money shall be drawn from the treasury except in pursuance of a specified appropriation made by law and no appropriation shall be for a longer term than two years. The basis for the short argument made by the State seems to be that the title of the act does not indicate an appropriation and that an appropriation is made by the act (68-2018) for a longer term than two years. Abruptly stated this contention is not good in any of its parts. As previously pointed out the above section of the act states that to provide for preliminary expenses of the Authority in carrying out the act the legislature shall not appropriate any moneys from the state general fund but shall appropriate such amounts as it may deem necessary not exceeding $25,000 per year for any one fiscal year from the state highway fund to be reimbursed when bonds are issued by the Authority. Assuming necessity therefor, the title of the act includes: “providing for tire preliminary expenses of the authority.” That is sufficient. Insofar as any appropriation is concerned it is first observed that any funds of the state highway commission are not raised by or the result of general taxation but are the fruits of levy of special taxes for road and highway purposes under statutes enacted in accord with Art. XI, § 10 of the constitution, all of which are under the general jurisdiction of the legislature for distribution and use for constitutional purposes as it may determine. That such a purpose is to be served is not debatable.
The language of the section does no more than outline a policy to be pursued and in and of itself makes no appropriation whatever. (See State, ex rel., v. State Highway Comm., 138 Kan. 913, 916, 28 P. 2d 770.) The appropriation was made by Laws of 1953, Ch. 38, Item 41, wherein the legislature appropriated to the Authority to carry out the provisions of “section 18 of senate bill No. 63” “from the state highway fund” the sum of $25,000 for the fiscal year ending June 30, 1954, and a like sum for the following year. The section of the act under consideration does not pretend to make an appropriation for a longer term than two years nor out of any fund raised by general taxation, and the statute actually making the appropriation did not do so. And see comment under Title I that the matter of appropriation has been retained by the legislature.
The State’s contention under this title is not sustained.
VI.
Does the act violate Art. II, § 16 in that the subject matter of the act is broader than the title?
The State’s contention under this title is in a sense supplementary to the contention discussed under Title V. After quoting the section of the constitution that no bill shall contain more than one subject which shall be clearly expressed in its title, the State says it is obvious from reading the title that the reader is not placed on notice of the fact that the state highway commission is involved in any way in the subject matter of the act or that the act relates in any way to the use of funds raised by taxation. No authority is cited in support of the contention. A review of our many decisions bearing on the titles of acts and the subjects of legislation covered is unnecessary. Certain principles applicable here include that the constitutional provision above should not be construed narrowly or technically to invalidate proper and needful legislation (Philpin v. McCarty, 24 Kan. 393) and that where the subject of the legislation is germane to other provisions, the act is not objectionable as containing more than one subject or as containing matter not expressed in the title. (State, ex rel., v. Beggs, 126 Kan. 811, 271 Pac. 400.) In Hawkins v. Social Welfare Board, 148 Kan. 760, 84 P. 2d 930, it was contended an act violated the above constitutional provision for the reason a provision as to liens on property of the recipient of old age assistance was not included in the title. It was said the lien feature was germane to the legislation and the title was sufficient. As has been noted on occasion, while the title of the act is more in detail than necessary, it is not misleading. It is true that while the name of the state highway commission is not included in the title, there is explicit statement of “providing for the preliminary expenses of the authority.” Such a provision is made in the act and that it is germane to the other pro visions is too clear for argument. Without further comment we hold that the State’s contention cannot be sustained.
VII.
Does the act violate Art. XI, § 1 of the constitution in purporting to exempt any turnpike project and bonds issued under the act, their transfer and the income therefrom from taxation within the state?
The above constitutional provision, which need not be quoted, states generally that the legislature shall provide for a uniform rate of assessment and taxation, except that named property and notes and other evidence of indebtedness may be classified and taxed uniformly as to class as the legislature shall provide, and that property used exclusively by named bodies shall be exempt. The argument runs that the attempt to confer tax exemption is unconstitutional because under the act the Authority is empowered to build a highway from Kansas City to Wellington which is not and cannot be of general benefit to the people of the state and by its nature benefits only the sections of the state through which it passes, and is not presently a part of the state highway system. No authority is cited in support of what seems to us to be an argument having nothing to do with exemption from taxation. Insofar as the turnpike projects are concerned, it seems obvious that the Authority cannot, as one project, construct every turnpike which it may be feasible to construct now or in the future, or if that could be done there would be such a project or a series of projects that every citizen of the state would reside in close proximity thereto. An act is not to be denounced because every resident of the state will not receive an immediate benefit. The act is so framed that if the necessary factors as to use and income can be established and the project financed within the terms of the act a project may be constructed at any place in the state. Insofar as exemption from taxation of turnpike revenue bonds held by an individual is concerned, consideration is entirely anticipatory. No bonds have been issued, and no question concerning exemption from taxation is now before us. But as bearing on exemption from taxation of similar bonds see State, ex rel., v. Kansas Armory Board, 174 Kan. 369, syl. # 2, 256 P. 2d 143. In any event notwithstanding the act does not contain a separability clause, it is clear that constitutionality of the remaining portions of the act would not be affected whether the exemption obtains or does not. The contention as made is not sustained.
VIII.
Does the act violate Art. XII, § 4 of the constitution by improperly permitting the vacation or relocation of public roads without prior provision for the payment of damages and costs and by authorizing the taking of immediate possession of property condemned?
The State contends the act violates the above section of the constitution which provides that no right of way shall be appropriated to the use of a corporation until compensation therefor shall be first made or secured by deposit of money to the owner. It is argued that as the Authority has no power of taxation there can be no assurance of payment of compensation for lands taken for the statutory purposes which include acquisition of right of way and change of location of a portion of any public highway, restrictions on the power of change of location being of no present importance. An exhaustive answer to the contention would lead us somewhat afield. Generally it may be said that under 68-2006 lands may be purchased “solely from funds provided under the authority of this act” and if a price cannot be agreed upon, or other specified conditions exist, the Authority is empowered to acquire by condemnation the requisite lands, all such proceedings and compensation to be paid to be in manner provided by the laws of the state which relate to condemnation or the exercise of the power of eminent domain, provided that the title to any property condemned by the Authority shall immediately vest and it shall be entitled to immediate possession upon deposit with the clerk of the court where the proceeding originates of the total amount of the- appraised property and court costs and appraisers’ fees. Provisions for appeal are not now noticed. Under the act as a whole it is abundantly clear that after the initial proceedings have been had and determination has been reached to construct a project, there can be no actual commencement of construction including acquisition of right of way until the necessary revenue bonds have been issued and sold and that funds will be in hand to defray awards and costs in connection with condemnation proceedings, and that this must be the case is deduced from the statutory provisions as to purchase or condemnation which show that purchase can only be made from funds provided by the act and that possession of lands condemned can be taken only after the appraisement, court costs, and appraisers’ fees have been paid into court. Possession of real property taken by condemnation cannot be had until the landowners’ money is in court, and the State’s contention as made cannot be sustained.
IX.
Does the act violate Section 1 of the bill of rights of the constitution as permitting the talcing of property without due process of law?
Under the above heading the State quotes the section of the bill of rights mentioned and also 68-2020 imposing a penalty against a person who uses any turnpike project and fails or refuses to pay the toll provided, and directs our attention to Britt v. City of Wilmington, 236 N. C. 446, 73 S. E. 2d 289, which the State says holds that a regulation adopted in connection with and in furtherance of an undertaking which is purely proprietary in nature may not be enforced by a criminal prosecution. No further argument is made by the State and we are somewhat at a loss to learn what it relies on to support its contention of unconstitutionality.
An examination of the above case discloses that it was an action to restrain issuance of parking facility revenue bonds in which space was devoted to whether particular activities were done in a governmental or proprietary capacity, and in which it was said that the criminal processes of the state were available to the city only for the better enforcement of the criminal law and police regulations adopted in furtherance of its functions as a governmental agency of the state, and that a regulation adopted in connection with and in furtherance of an undertaking which is purely proprietary in nature may not be enforced by criminal prosecution. Granting that such a distinction has any merit under our jurisprudence we refuse to now conclude that a turnpike project and its use as contemplated under the act in question are purely proprietary in nature. In any event the inclusion of the penalty section does not destroy the entire act and we do not sustain the State’s contention.
X.
Does the act violate Art. XII, § 1, in that it is a special act conferring corporate power?
The State’s argument under this title is that the turnpike to be constructed is for the purpose of providing a connecting link to the highways of states to the east of Kansas and to constitute a part of a proposed transcontinental highway, and by its very nature the benefits are limited to the area served by the turnpike and, in effect the act constitutes legislation which is local and special and being special legislation, corporate power may not be conferred. In support the State cites only Barker v. Kansas City, 149 Kan. 696, 88 P. 2d 1071. In that case this court considered a statute pertaining to the establishment of parking lots, which by a classification made applied only to Kansas City, and which provided that at a date fixed, about two years after the statute was effective, no bonds could be issued. Without analyzing the opinion, it was held that by reason of limitations made, the legislation was special, and being special no corporate power could constitutionally be conferred on the city.
In Board of County Comm’rs v. Robb, 166 Kan. 122, 199 P. 2d 530, the court considered whether a flood control act was special legislation because of language in the body of the act restricting operation to any county of the state traversed or touched by the Arkansas River. Without repeating what is said in that case, under analogies to be drawn therefrom, the instant act does not constitute special legislation.
Neither the title to the present act nor anything contained therein is restrictive. The powers therein granted are state-wide and may be exercised at any place in the state or between any locations in the state where preliminary statutory tests are met and the project is feasible thereunder. If this were a case where a taxpayer was objecting because he received no benefit, some discussion would be necessary but that is not the case, for under the statute only the users of the toll road project must contribute to its cost. And see the comment under Title VII.
In our opinion the act may not be denominated as special legislation and we need not discuss the extent to which it confers corporate power.
XI.
Although expressly denying constitutionality of the act under attack, the State contends that if it is constitutional the actions and proposed actions of the Authority are beyond the scope of the powers granted. It may be noted that under 68-2004 the Authority is granted power to adopt bylaws and it has done so and a copy of them is attached to the petition. We have heretofore pointed out that the wisdom, justice, and expediency of the legislation is not for judicial determination. See comment under Titles I and IV. Specific action of the Authority in the future may give rise to a matter for determination by the court but any discussion at this time is abstract and we are not disposed to place the court in a position of monitoring the actions of the Authority or of supervising or controlling the exercise of its administrative duties. The matter of the sale of revenue bonds in such manner as the Authority may determine is covered by statute and by what has been said above. Whether the title to any lands that may be condemned for right of way is vested in the Authority or the state is at present academic. The right of the Authority to fix rates of compensation of its employees is granted by the statute and presents no question of an ultra vires act. At the present time we have no question before us as to placing motor fuel filling stations on a right of way yet to be acquired. If the express terms of the statute as to the number of such stations is violated, an action may then be commenced to enforce compliance with 68-2009 of the act. And any question whether under 68-2010 only one trustee may be appointed is premature.
A review of the entire record convinces this court that the prayer of the petition should be denied and that judgment should be for the defendant and it is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This is an appeal from a judgment of the district court reversing an order of the commission of revenue and taxation sustaining a previous order of the director of revenue assessing inheritance tax on certain working interests in oil and gas properties in Kansas owned by a resident of Denver at the time of his death.
The case was tried on an agreed statement of facts. It was agreed that the owner of the property died testate in Denver and owned a gross estate in Kansas of $112,977.20 and certain percentages of working interests in producing oil and gas leases appraised at $96,-029.26; that the director had determined a tax was due of $2,242.87; that such tax had been paid; that an application for abatement and refúnd had been denied; that should the working interests in the oil and gas leases owned by decedent at the time of his death be excluded from the inheritance tax computations, the total tax due would amount to $1,028.24; that Kansas and Colorado were reciprocal states; that the interests in the oil and gas leases in Kansas had been held to be taxable in Colorado and such tax had been paid; that the working interests in the oil and gas leases owned by decedent at the time of his death were operated by him through his office in Denver.
The stipulation then contained three paragraphs as follows:
“15. The sole remaining issue in this matter is whether the said working interests as afore-stated, which were owned by decedent at the time of his death, and operated by decedent through his office in Denver, Colorado, at the time of his death, are subject to taxation for inheritance tax purposes by the State of Kansas.
“16. That if the appellant’s position herein is sustained, the Inheritance Tax owed the State of Kansas by said estate should be reduced to the amount of $1,028.24, and appellant is entitled to a tax refund in the amount of $1,-214.63.
“17. That if the appellee’s contention herein is sustained, no adjustment of inheritance tax paid is necessary.”
The district court held the working interests in question were incorporeal and the property attempted to be taxed was without the jurisdiction of the state. The order of the state tax commission was reversed and the appellant was given judgment for $1,214.63. The commission has appealed from that judgment.
The specifications of error are that the district court erred in its findings; that the oil and gas lease was intangible personal property under the laws of Kansas; that there was nothing in the record to show or indicate that the leases themselves had a taxable situs in the state of Kansas; that it was the interest of the deceased that was being taxed; that the property attempted to be taxed was without the jurisdiction of the state; and erred in overruling the motion for a new trial made by and on behalf of the state commission of revenue and taxation.
The action arises from the provisions of two sections, one is G. S. 1949, 79-1501. That is the section imposing an inheritance tax. It provides as follows:
“All property, corporeal or incorporeal, and any interest therein, within the jurisdiction of the state, whether belonging to tire inhabitants of the state or not, which shall pass by will or by the laws regulating intestate succession, or by deed, grant or gift made in contemplation of death, or made or intended to take effect in possession or enjoyment after the death of the grantor, to any person, absolutely or in trust, except in case of a bona fide purchase for full consideration in money or money’s worth; and except property to or for the use of literary, educational, scientific, religious, benevolent and charitable societies or institutions: Provided, Such use entitles the property so passing to be exempt from taxation; and except property to or for the use of the state, a county or a municipality for public purposes, shall be taxed as herein provided.
The other is G. S. 1949, 79-1501 (e). That section provides as follows:
“The tax imposed by this act in respect to personal property of nonresidents (other than tangible personal property having an actual situs in this state) shall not be payable (1) if the decedent at the time of his death was a resident of a state or territory of the United States which at the time of his death did not impose a transfer tax or death tax of any character in respect to personal property of residents of this state (other than tangible personal property having an actual situs in such state or territory), or (2) if the laws of the state or territory of residence of the decedent at the time of his death contained a reciprocal provision under which nonresidents were exempted from transfer taxes or death taxes of every character in respect to personal property (other than tangible personal property having an actual situs therein) provided the state or territory of residence of such nonresidents allowed a similar exemption to residents of the state or territory of residence of such decedent. In no case shall the provisions of this section apply to the intangible personal property of nonresident decedents unless such tangible [intangible] personal property shall have been subjected to a tax or submitted for purposes of taxation in the state of the decedent’s residence. This section shall apply only to estates of decedents dying subsequent to the effective date of this section. For the purpose of this section the District of Columbia and possessions of the United States shall be considered territories of the United States.”
All are agreed that Colorado is what is termed a reciprocal state, as referred to in the- above section, that is, the statutes of Colorado extend the same immunity to Kansans owning certain types of property in Colorado as is being claimed for the estate of this decedent resident of Colorado owning a certain type of property in Kansas.
The outcome depends on the construction to be given the first provision of G. S. 1949, 79-1501 (e). That provision is short and for convenience in consideration will be repeated here as follows:
“The tax imposed by this act in respect to personal property of nonresidents (other than tangible personal property having an actual situs in this state) shall not be payable. . . .”
The statute then lays down certain conditions with which we are not concerned. The act may be read “The tax imposed by this act in respect to personal property of nonresidents, where the property is intangible, or does not have an actual situs in this state, shall not be payable.”
The court below held these percentages in the working interests in the oil and gas leases were intangible and hence not taxable. The appellant challenges that ruling and argues that such interests should have been held to be an interest in real estate and hence taxable.
This brings us to a consideration of what is a working interest in an oil and gas lease. The manner in which such interests arise is well stated in Robinson v. Jones, 119 Kan. 609, 240 Pac. 957. The one-eighth share to be paid the landowner or lessor under the common form of lease is known in the trade as royalty. The seven-eighths interest in the oil produced is known as the working interest. Under the simplest situation the parties who owned the lease and drilled the well would own this seven-eighths interest. As it actually works out in practice, however, financial dealings being what they are, several parties may own a share in the working interest. On somebody must fall the expense of raising the oil from the ground and marketing it. Sometimes part of the working interest is held by a party free and clear of this expense. Such an interest is called an “overriding royalty.” This record does not disclose whether the interest owned by decedent was an override or a mere share in the working interest. At any rate, on the part of its owner it was a right to be paid by the operator of the lease his share of the oil or gas produced by a well, whatever it might be. What right he had was a mere chose in action. In other words he could enforce it against the operator of the lease.
It is well settled that an oil and gas lease conveys no interest in land but is merely a license to explore and is personal property, an incorporeal hereditament — a profit a prendre. (See Connell v. Kanwa Oil Inc., 161 Kan. 649, 170 P. 2d 631, and cases there cited.) The interests owned by decedent arose from oil and gas leases. They take on the same character as the instrument from which they arose and are what was meant by the legislature when the words “other than tangible personal property” were used. They partake of the same general nature as patents, franchises, copyrights, rents, wages and incorporeal property generally.. The stipulation of facts stated that the working interests were operated by decedent through his office in Denver. Having concluded that these working interests are not tangible property, it is unnecessary to discuss the other questions raised and argued.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is a replevin action to recover possession of a Ford automobile or, in lieu thereof, the value of the car and damages. From a judgment adverse to it, plaintiff has appealed.
The case has been here previously in an appeal from an order sustaining defendant Kemp’s demurrer to the petition (Commercial Credit Corporation v. Kemp, 174 Kan. 480, 256 P. 2d 859). Reference is made to our former opinion for a summary of the allegations of .the various pleadings, down to and including the demurrer in volved. Subsequent to our reversal of the ruling on the demurrer defendant hank filed its answer claiming a prior hen on the automobile in question based on a chattel mortgage executed by defendant Kemp to the bank.
Defendant Kemp filed his answer alleging that plaintiff has no valid lien on the car; that neither plaintiff nor its assignor had complied with the provisions of Michigan law concerning certificates of title, and that due to plaintiff’s negligence and laches it is estopped from asserting any right, title or interest in the car.
Plaintiff’s reply was in the form of a general denial.
Eventually the parties entered into a stipulation of facts and submitted the cause to the court for decision on a question of law only, namely, the priority of the two liens in question.
The facts, as shown by the stipulation and exhibits attached to the various pleadings, may be summarized as follow:
On February 28, 1950, the Veterans Cab Company of Detroit, Michigan, by Arthur Neymanowski, its vice president, purchased the Ford automobile in question from Alfred F. Steiner Company of Detroit for the sum of $1,535.80. The purchaser executed and delivered to the seller a chattel mortgage on the car in the amount of $848.04 to secure the unpaid balance of the purchase price. A few days later this chattel mortgage was assigned by the seller to the plaintiff in this action and was duly filed of record in Wayne County, Michigan, on March 9,1950.
On the date of sale, February 28, 1950, the seller and purchaser made application to the proper Michigan authorities for a certificate of title. This application stated that the car was purchased for cash and that there was no lien of any kind on it.
On March 10, 1950, a certificate of title was issued in the name of the Veterans Cab Company, the purchaser, and this certificate showed that there was no lien on the car.
On April 4, 1950, the Veterans Cab Company assigned the certificate of title to one Tipton, and on April 12, 1950, a certificate of title was issued to Tipton, which also showed no lien on the car.
On July 17,1950, Tipton sold the car to defendant Kemp, and Tip-ton assigned the certificate of title, showing no lien, to him.
All of the foregoing transactions took place in the state of Michigan, and shortly thereafter Kemp drove the car to Kansas where he obtained a certificate of title showing no lien. Subsequently Kemp mortgaged the car to defendant bank. The bank knew that Kemp had purchased the car in Michigan from an individual, prior to the execution of the mortgage to it.
The parties further stipulated that neither Alfred F. Steiner Company, the original mortgagee and seller, nor its assignee, the plaintiff, in any manner attempted to have the mortgage which was executed by the Veterans Cab Company, or the lien thus created, shown upon the certificate of title issued to the Veterans Cab Company, and that neither defendant Kemp nor defendant bank had actual knowledge of the mortgage relied upon by plaintiff.
It was further stipulated that as between defendant Kemp and defendant bank the mortgage from Kemp to the bank is valid, but that it is inferior to plaintiff’s mortgage if the latter is found to be valid and enforceable against Kemp.
And finally, it was stipulated that the trial court must take judicial knowledge of such Michigan laws as are applicable to the case, and that the same must be considered by the court in arriving at its decision.
Upon the facts thus agreed to the court rendered judgment finding that the car in question is the property of defendant Kemp, free and clear of any mortgage, lien or claim of plaintiff, and that the chattel mortgage held by defendant bank constitutes a first and prior lien thereon.
In announcing its decision the court commented to the effect that when one of two innocent parties must suffer loss it must be borne by the one whose act or omission made the loss possible, and that plaintiff assignee stands in no better position than the party who caused the loss.
Plaintiff has appealed, and the basic question is whether the original chattel mortgage, of which plaintiff is the assignee, constitutes a valid and enforceable lien on the car as against the present owner, Kemp.
In our opinion the decision reached by the trial court is correct.
The facts are simple. The laws of Michigan concerning applications for registration and certificates of title to automobiles provide that an application shall contain a statement of the applicant’s title and of all liens or encumbrances upon such vehicle sought to be registered. They further provide that a certificate of title issued pursuant to such application shall contain upon the face thereof a statement of the owner’s title and of all liens or encumbrances upon the vehicle described therein. ' These provisions were not complied with when the Veterans Cab Company, the purchaser, and the Alfred F. Steiner Company, the seller, joined in an application for a certificate of title to the car in question. That application stated that the sale was for cash and that no lien of any kind existed. Such statement obviously was false in view of the chattel mortgage executed by the purchaser to the seller to secure the unpaid balance of the purchase price. The certificate of title thus issued to the purchaser, which showed no lien, was subsequently assigned to Tipton, and this also showed no lien in existence. Still later, the certificate of title, showing no lien, was assigned to defendant Kemp, an admitted innocent purchaser. Afterwards Kemp brought the car to Kansas, where he obtained a certificate of title showing no lien, and, upon the strength thereof, obtained a loan from defendant bank, giving a chattel mortgage on the car as security.
Plaintiff argues that under the rules of comity we are bound to take note of Michigan law purporting to hold that the failure of a certificate of title to disclose a lien does not protect a purchaser from the force and effect of a duly recorded chattel mortgage on a motor vehicle, and our attention also is called to a number of our own decisions relating to priority of chattel mortgages. Rules of comity, however, do not require us to ignore general rules of law or our own rules and decisions pertaining to certificates of title to motor vehicles, and neither are general principles pertaining to priority of chattel mortgages particularly helpful in a case of this kind.
If the original purchaser and seller of the car in question had correctly and truthfully listed the chattel mortgage on the application for a certificate of title this case would not have arisen and no one would have suffered loss. The wrong was further perpetrated by the assignment of the certificate of title, showing no lien, to Tipton, and still further by the assignment thereof to defendant Kemp, an innocent purchaser. All through these dealings, down to and including the execution of the chattel mortgage by Kemp to defendant bank, the various certificates of title showed no lien on the car. Plaintiff, as assignee of the chattel mortgage executed by the original purchaser, stands in no better position than its assignor. The general principles laid down in the recent case of General Motors Acceptance Corp. v. Davis, 169 Kan. 220, 218 P. 2d 181, 18 A. L. R. 2d 808, are applicable to the facts of this case.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action in which plaintiff sought damages, actual and exemplary, resulting from a wrongful garnishment of her wages.
In her petition the plaintiff alleged her employment by Armour and Company; that her wages had been garnished in an action commenced by defendant against her in a magistrate’s court in Kansas City, Missouri; that she had never been indebted to the plaintiff in that action; and that she had suffered specified damages. She prayed for actual and exemplary damages. The defendant’s answer consisted of a general denial.
A trial was had and the jury, under instructions to which no objection was made, returned a verdict in favor of the plaintiff for actual and exemplary damages in specified amounts. Defendant then filed its motion that the vérdict be set aside for the reason that portion assessing exemplary damages was not sustained by the evidence, and also its motion for a new trial. These motions were denied and judgment was rendered on the verdict and in favor of the plaintiff.
In due time defendant perfected its appeal to this corut. Because of its importance here the notice is quoted in full:
“Take notice that the undersigned defendant does and has appealed from the judgment rendered and made in the above entitled action on the 28th day of March, 1953, wherein judgment in the sum of $1,000.00 and costs was entered in favor of the plaintiff named above, and against the defendant herein.”
■ Notwithstanding its very limited appeal, in its abstract appellant specifies as error that the trial court erred in: (1) Overruling its motion to set "aside the verdict; (2) overruling its motion for a new trial; and (3) instructing the jury as to actual damages.
It is observed that although two post trial motions were filed, actually the matter contained in the motion to vacate a part of the verdict as not sustained by the evidence states a ground for a new trial (see G. S. 1949, 60-3001, Fourth) and the two motions may be treated as one. It is also observed that if there were any errors in the instructions to the jury, they were trial errors which should have been called to the attention of the trial court in a motion for a new trial (G. S. 1949, 60-3001, Second).
We are confronted with complaints on rulings as to matters which were the grounds for a motion for a new trial, but there is no appeal from that ruling, nor for that matter any appeal from any ruling made either during or subsequent to the trial. It has been held repeatedly that rulings on such motions not included in the notice of appeal are not subject to review. See e. g. In re Estate of Young, 169 Kan. 20, 217 P. 2d 269; Toklan Royalty Corp. v. Panhandle Eastern Pipe Line Co., 168 Kan. 259, 264, 212 P. 2d 348; Salt City B., L. & S. Ass’n v. Peterson, 145 Kan. 765, syl. No. 1, 67 P. 2d 564; Skaggs v. Callabresi, 145 Kan. 739, syl. No. 2, 67 P. 2d 566; Mundell v. Franse, 143 Kan. 139, 140, 53 P. 2d 811, and other cases cited in the above.
The specifications of error present nothing for appellate review and the appeal must be and it is dismissed. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover for injuries alleged to have been sustained from the use of a hair preparation, known as “Miss Clairol.” The defendant. appeals from an order overruling its demurrer to the petition.
Failure of the petition to state facts sufficient to constitute a cause of action is the sole issue involved on appeal. For that reason, because it discloses the factual situation, about as clearly as it could be described in narrative form, and definitely outlines the legal theory on which plaintiff bases her right to relief, we shall quote from such pleading at length, omitting only formal averments and other immaterial allegations to which brief reference will be made.
After stating plaintiff is a resident of Pittsburg, that the defendant Bottenfield’s, Inc., is a Kansas corporation, engaged in the business of wholesaling, distributing and selling beauty and barber supplies in Crawford county, and that the defendant Clairol Inc., is a foreign corporation, located at Stamford, Conn., and engaged in the business of selling the involved hair preparation in the state of Kansas without authority of law, the petition reads:
“Plaintiff further states that said defendant Clairol Inc., a corporation, did prior to February 2, 1951, sell said ‘Miss Clairol’ preparation to the defendant Bottenfield’s Inc., a corporation, knowing that said Bottenfield’s Inc., a corporation, would offer said ‘Miss Clairol’ hair preparation for sale to the beauty shops and parlors in their trade territory for use as a hair tint or dye on patrons of said beauty shops in their trade territory, and said defendant Clairol Inc., a corporation, did impliedly warrant that said ‘Miss Clairol’ hair tint, or dye, or hair color bath preparation was fit for the purpose of applying the same to the hair and scalp of patrons of beauty shops or the public in general and did impliedly warrant that the same could he used without injury to said patron or the public.
“Plaintiff further states that at the time prior to February 9, 1951, the defendant, Bottenfield’s Inc., a corporation, did sell said product above described to-wit: ‘Miss Clairol’ to one Mrs. Pearl Baker, owner of the Vanity Beauty Shoppe, 125 East Fourth Street, Pittsburg, Kansas, knowing that said Pearl Baker would use said ‘Miss Clairol’ preparation herein described on the hair and scalp of patrons of her beauty shop and said defendant Bottenfield’s Inc., a corporation, did impliedly warrant that said hair preparation above described to-wit: ‘Miss Clairol’ was fit for the purpose of using the same on the hair and scalp of the patrons of said beauty shops and the public as a hair dye, or tint, or color bath and that the same would not cause any personal injury of any nature to the patrons and public as a whole.
“Plaintiff further states that thereafter and on the second day of February, 1951, she, for valuable consideration, took a hair treatment at the beauty shop of the said Pearl Baker, at the Vanity Beauty Shoppe, owned by the said .Pearl Baker, said hair treatment being administered by the said Pearl Baker and that the said Pearl Baker did use the hair preparation dye, tint, or color bath above mentioned to-wit: ‘Miss Clairol’, and that said plaintiff underwent said hair treatment relying upon said implied warranty above described. Plaintiff states that said hair preparation or hair dye, or hair tint, or hair color bath, to-wit: ‘Miss Clairol’ was not fit for use as such, but contained deleterious and harmful substances the exact nature of which the plaintiff cannot and does not know as the same are peculiarly within the knowledge of the defendants,- and by reason thereof and the defendants’ breach of warranty of fitness and wholesomeness of said hair preparation above mentioned to-wit: ‘Miss Clairol, the plaintiff was injured and damaged in the following manner’to-wit:
(Here follows a full and complete statement of all injuries alleged to have resulted from the use of such hair preparation.)
“Plaintiff further states that when the defendant Clairol Inc., a corporation, sold said ‘Miss Clairol’ hair preparation to the defendant Bottenfield’s Inc., a corporation, the said defendant Clairol Inc., a corporation, knew that said hair preparation above described would be resold by the said Bottenfield's Inc., a corporation, to beauty shops or other trade outlets to be used on the hair and scalp of the public, and the defendant Clairol Inc., a corporation impliedly warranted to all persons who might use said hair preparation or have the same used on them by approved beauticians, including the plaintiff, that said ‘Miss Clairol’ was fit for that purpose and was wholesome and non-injurious to the person and did not contain any harmful substances.
“Plaintiff further states that when the defendant Bottenfield’s Inc., a corporation, sold said ‘Miss Clairol’ hair preparation, dye, tint, or color bath to said Pearl Baker, owner of the Vanity Beauty Shoppe, the defendant Bottenfield’s Inc., a corporation, knew that said ‘Miss Clairol’ would be used by said Mrs. Baker on the hair and scalp of patrons of her beauty shop and the defendant Bottenfield’s Inc., a corporation, impliedly warranted to all persons who might use said ‘Miss Clairol’ or have the same used upon them, including the plaintiff, that said ‘Miss Clairol’ was fit for such use and was wholesome, not injurious to the person and did not contain any harmful substances.”
The remainder of the petition consists of allegations relating to the amount of damages sustained as a result of plaintiff’s alleged injuries and a prayer for judgment in accord therewith.
For purposes of supplementing the factual picture only it should be noted at this point that the owner of the beauty shop (Mrs. Pearl Baker), was not made a party, that a pretended service of summons on the manufacturer (Clairol, Inc.) was set aside, and that the only defendant now involved in the action is the distributor (Bottenfield’s, Inc.) who sold the product in question to the beauty shop owner.
From an examination of the foregoing petition it is clear that appellee’s cause of action is predicated upon the breach of an implied warranty on the part of the manufacturer, the distributor, and for that matter the owner of the beauty shop even though she was not made a party to the action, that “Miss Clairol” when manufactured, when sold, and when subsequently used was suited and fit for use as a hair preparation and contained no deleterious or harmful substances making it unwholesome or injurious to her when applied to her hair and scalp by a beautician.
Appellee states, and we find nothing in our reports to the contrary, that so far as it relates to the sufficiency of a petition in charging a cause of action for breach of implied warranty in the manufacture and sale of a product of the particular type here involved, this is a case of first impression in this court. This, we may add, is true notwithstanding our decision in Frier v. Proctor & Gamble Distributing Co., 173 Kan. 733, 252 P. 2d 850, on which appellant, with some justification, seeks to place weight as a precedent. Resort to that opinion discloses there was no claim the petition failed to state a cause of action, that the cause proceeded to trial, and that at the close of plaintiff’s evidence the court took the case away from the jury, after a demurrer had been lodged against the plaintiff’s evidence, and rendered judgment for the defendant principally, if not entirely, upon the premise that under the conditions and circumstances there involved the plaintiff’s continued use of the product made her guilty of contributory negligence which precluded her recovery as a matter of law. If, as appellant suggests, the language, to be found in the first portion of the last paragraph commencing on page 735 of the opinion, is susceptible of a construction that the decision is based upon lack of privity between the parties to the action it is to be disregarded. Moreover, in a subsequent decision, in Nichols v. Nold, 174 Kan. 613, 621, 258 P. 2d 317, with specific reference to the Frier case, we said “The only point upon which the case can be relied upon as an authority is that under some circumstances the plaintiff in such a case, after all the evidence is in, may be called upon to make án election as to whether he is proceeding upon negligence or contract.”
In support of its position the trial court erred in overruling the demurrer to the petition appellant directs our attention, at the outset, to decisions of this court holding that ordinarily there is no privity of contract between the original vendor of personal property and third persons who may purchase or acquire the property from the original vendee; and the original vendor’s warranty is a personal obligation between him and his own vendee which does not run with the property like covenants concerning real estate (Booth v. Scheer, 105 Kan. 643, 185 Pac. 898; Lumber Co. v. Mercantile Co., 114 Kan. 10, 216 Pac. 815).
We have no quarrel with the rule announced in the foregoing decisions. The difficulty, from appellant’s standpoint, is that long ago this court, even when applying such rule, recognized that it was subject to certain exceptions. This is well illustrated in the opinion of the early case of Lukens v. Freiund, 27 Kan. 664, where it was said:
“The unquestioned rule of the common law was, cavet emptor. As is said by the author in 1 Smith’s Leading Cases, p. 242:
“ ‘The policy of the common law seems to have been to limit the effect of a sale to the transfer of the right of property from the vendor to the purchaser, and to throw the hazards of the purchase upon the latter, unless he had expressly stipulated that they should be borne by the former. No warranty of quality or value was consequently implied from the sale, either of personal or real estate.’
“Upon this recognized policy of the common law, there have been repeated efforts to engraft exceptions, and now it may be conceded that a few have become successfully established. Among them may be mentioned these: Where an article is ordered from a manufacturer, to be by him manufactured for a special purpose, of which the manufacturer has knowledge, there is an implied warranty that the article when manufactured shall be reasonably fit for such purpose. (Craver v. Hornburg, 26 Kas. 94.)
“Again, where goods are sold by sample, there is an implied warranty that the goods when delivered shall correspond in quality with the sample. (Field v. Kinnear, 4 Kas. 476; Bigger v. Bovard, 20 Kas. 204.) And a third is, where food is sold by a dealer for domestic consumption, there is an implied warranty that it is sound and wholesome. Other exceptions may also exist, but it is unnecessary to mention them.” (pp. 666, 667.)
From what has been heretofore stated it becomes obvious our problem in this case is to determine whether the facts pleaded are sufficient to bring it within what, in the light of modern decisions, has come to be regarded as one of the exceptions to the general rule.
This we may add is impliedly, if not expressly, conceded by both parties, the appellant insisting that no exception has application while the over-all contentions advanced by appellee, in support of the trial court’s ruling on the demurrer, are that the exception recognized in food cases has been expanded to include products of the type here involved or, if it has not, that under the allegations of the petition logic and sound reason compel a conclusion it should be so extended.
We are not disposed to labor our decisions which recognize the exception and apply the rule that where food is sold by a dealer for domestic consumption there is an implied warranty that it is sound and wholesome. It may be said they are considered and discussed in Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P. 2d 930, which, we pause to note, is the latest decision in this jurisdiction dealing with that particular question and is therefore tire last word on the subject, where it is held:
“In any case where a dealer sells articles of food for immediate human consumption, the purchaser may rely upon an implied warranty that such articles are wholesome and not deleterious, and in the event he sustains injuries from consumption thereof, he may waive any tort there may have been and maintain his cause of action upon such implied warranty.
“Where articles of food for human consumption are manufactured or packed by a manufacturer or packer, and by a series of transactions reach a retail dealer who sells to the consumer, the manufacturer or packer, each intermediate dealer and the retail seller impliedly warrant that such articles of food are wholesome and fit for immediate human consumption.
“The rule of implied warranty of fitness of food for human consumption applies whether the articles of food are sold in bulle or. in sealed packages or containers.” (Syl. ¶¶ 1, 2 and 3.)
And in the opinion, with particular reference to the force and effect to be given our previous decisions, said:
“Under these decisions it must be held that in any case where a dealer sells articles of food for immediate human consumption, the purchaser may rely upon an implied warranty that such articles are wholesome and not deleterious, and in the event he sustains injuries from their use, he may waive any tort there may have been and maintain his cause of action upon such implied warranty. We are of the opinion, too, that such warranty is not limited to the immediate seller. While some authorities may be found holding that as between the manufacturer or packer and the ultimate consumer there is no privity of contract, and therefore the injured consumer may not maintain an action, the weight of authority is to the contrary. Assuming that such an action may be maintained, it seems illogical to hold that the injured consumer might maintain an action against the immediate seller or the manufacturer or packer, but not against the intermediate purchaser and sellers of the articles of the food. To so hold would mean that if the immediate seller were financially irresponsible, and the packer, for instances, were located in a foreign country, the injured consumer would, from a practical standpoint, be without remedy. And it might be that by the time the articles were finally sold to a consumer, any right of action he might have against the manufacturer or packer would be barred by the statute of limitations. We think the rule of intermediate liability stated in the Challis case, supra, (See the last paragraph on page 222 of its opinion) is that which should be followed.
“On the question that a different rule should be applied as to goods in cans and containers than as to bulk goods, it must be recognized that today practically every article of food except green groceries is packaged in some manner. If putting food in packages is to relieve all intermediate handlers and the immediate seller, then the injured consumer is relegated to his action against the manufacturer or packer. While it is true the purchaser has the same opportunity to inspect, prior to opening the package or container, as his immediate seller or the intermediate handler, he buys, at least in part, relying upon the fact the contents are supposedly wholesome and fit for immediate human consumption. It is also well known that many articles of food are sold by brand or name as the result of extensive advertising, in which purity, wholesomeness, price, etc., are stressed in varying degrees, and that insofar as manufacturers, packers and jobbers are concerned the purpose is to challenge attention to the brand or name and to create a demand therefor. Insofar as the local dealer is concerned, he stocks and sells these advertised goods because of that demand. Although in the case at bar an argument is made that the purchaser, by calling for a particular brand, waived his right to rely on implied warranty, we think it should not be so held. We think that a merchant, in displaying articles of food for sale, impliedly warrants that each and all of the articles are fit, whether of well known or little known brands, or whether packaged or not, and that the fact the purchaser chooses one or the other should not relieve the dealer. And if the dealer is liable, under the circumstances instant in this case, so are the intermediate handlers.” (pp. 561, 562.)
The next decision of this court, dealing with the sufficiency of a petition where the pleader sought to state a cause of action based upon liability of the seller of an article not inherently dangerous to a third person for injury resulting from the unsafe, unfit, and dangerous conditions of such article at the time of its sale or delivery, is to be found in Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317. Nothing would be gained by a detailed review of the long and considered opinion in that case. It suffices to say that upon careful examination of such decision it must be conceded that what is there said and held respecting the doctrine of implied warranty results in an expansion of that doctrine, as theretofore applied under our decisions to sales of food for domestic consumption, to include an implied warranty of the safe and nonexplosive condition of glass bottles when sold and/or delivered in connection with the sale of Pepsi-Cola or other liquid beverages.
If the reasons assigned in the Nichols and Swengel cases, supra, for recognizing the exceptions to the general rule of the common law are to be followed and adhered to we are forced to agree there is merit in appellee’s position that there is just as much reason for holding public policy, which it is to be noted is the basic foundation for the imposition of liability under the doctrine of implied warranty in cases of such character (see Lukens v. Freiund, 669, supra; also Nichols v. Nold, 621 to 624, inch, supra), requires, that a manufacturer, jobber or distributor who sells “Miss Clairol” for use by beauticians on the hair and scalp of beauty shop customers impliedly warrants that preparation as suited and fit for use as a hair preparation which contains no deleterious or harmful substances making it unwholesome or injurious to such customers when so used, as there is for holding that food manufactured and sold for domestic consumption is impliedly warranted as wholesome and fit for that purpose or that glass bottles when sold and/or delivered in connection with the sale of liquid beverages are impliedly warranted to be in a safe and nonexplosive condition. Therefore, on the basis of the reasoning of such decisions and what is there said and held, consistency requires and we feel constrained to hold the scope of the exception to the common law rule of caveat emptor, to which we have heretofore referred, should be extended to include sales of the product here in question.
Having reached the foregoing conclusion it necessarily follows that the allegations of the instant petition are sufficient to state a cause of action based on implied warranty and that the action of the trial court in overruling the demurrer to that pleading should be upheld.
In arriving at the conclusion just announced we have given careful consideration and attention to the arguments advanced by appellant, many phases of which have been touched upon by what has been heretofore stated, to the effect the petition fails to state a cause of action because (1) there was no privity of contract between it and the appellee and (2) the hair dye “Miss Clairol” was not manufactured or packed by it and hence it was under no duty to test that preparation. In our opinion, with similar confronting facts and circumstances, both of these contentions have been decided adversely to appellant’s position respecting them. The first in Nichols v. Nold, supra, where it is said in substance that privity of contract, in the sense it is ordinarily used, is not required in order to establish liability where the source of the obligation (implied warranty) is imposed by the law on the basis of public policy. The second was definitely determined (see portions of the opinion heretofore quoted) in Swengel v. F. & E. Wholesale Grocery Co., supra.
The judgment is affirmed.
Price, J., dissenting. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for personal injuries. The trial court sustained demurrers to the plaintiff’s petition and she appeals.
In her petition plaintiff alleged she was a minor of the age of nine years; that the City of Kansas City, Kansas, hereafter called the City, was a municipal corporation under the laws of the state of Kansas, and that the Board of Education of Kansas City, Kansas, hereafter called the Board, was a quasi-municipal corporation under the laws of the state of Kansas and in full charge and owner of all school buildings and as employer of all teachers and maintenance employees and of all equipment in school buildings, and made regulations therein for the safety of teachers and pupils in the public schools in Kansas City, Kansas, including The Douglas School in said City (there is no allegation of any regulation made); that a long time prior to May 15, 1952, the Board placed in the basement of The Douglas School a large circular wash basin for the children of the third grade in the school and:
“That said defendant The Board of Education of Kansas City, Kansas created and maintained the following nuisance in connection with the aforesaid circular wash hasin in the basement of the Douglas School aforesaid on May 15th, 1952 and for a long period of time immediately prior thereto; that many of the children, the pupils in said Douglas School, but not this plaintiff would splash water on the floor in using this circular wash basin and the floor in the room housing this circular wash basin was smooth and hard surfaced, that some of the children would throw paper towels on the floor in using said wash basin and the aforesaid caused the floor in the room in which this circular wash basin was located in the basement of the Douglas School to be always slippery and dangerous to the health and physical welfare of the school children using aforesaid wash room including this minor plaintiff and a nuisance. And the aforesaid was well known to the officers and employees of the defendant, The Board of Education of Kansas City, Kansas or by exercise of ordinary care should or could have been known by them, but was condoned by them on May 15th, 1952 and for a long period of time immediately prior thereto. (Italics supplied.)
It was further alleged that on May 15, 1952, plaintiff approached the above basin, using due care for her safety, when her right foot, without fault on her part, slipped forward on the slippery floor causing her to fall violently and sustain injuries the nature of which are alleged in detail. In the fourth paragraph of her petition plaintiff alleged that she made the City a party because by law it was responsible for judgments obtained against the Board and it was the duty of the City to take action to abate nuisances in the defendant City; that the City knew of the existence of the nuisance pleaded for a long period of time prior to May 15, 1952, or by the exercise of ordinary care could have known thereof and it was a necessary party for a complete determination of the controversy. Allegations as to her filing statements of her claim with the city clerk of Kansas City are noted but need not be detailed. Her prayer was for a money judgment against both defendants.
The City and the Board filed identical motions to strike the language italicized above and all of the fourth paragraph, as well as other parts of the petition on the ground they were redundant, irrelevant and repetitious, were statements of conclusions and not of facts and were prejudicial. These motions were denied and thereafter each defendant demurred on the ground that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against it. On hearing, the trial court sustained each demurrer. The plaintiff then requested leave to file an amended petition within twenty days. The court, being of the opinion the defects in plaintiff’s petition could not be remedied by amendment, denied the request.
In due time plaintiff perfected her appeal against both defendants. She specifies as error the trial court’s rulings on the demurrers and its refusal to permit her to amend her petition.
We shall first consider the City’s demurrer, although it is' obvious that if no cause of action is stated against the Board, none is stated against the City. But assuming for the moment that a cause of action is stated against the Board, does it follow that one is stated against the City? The gist of appellant’s argument is that under G. S. 1949, 72-1717, the title to all property held for the use and benefit of the public schools in cities of the first class, to which class the City belongs, is vested in the board of education which holds in trust for the City, and it is argued that the Board is an arm of the City; ’also that the City had also a duty to abate nuisances under G. S. 1949, 13-1417, and, under our decision in Hubert v. Board of Public Utilities, 162 Kan. 205, 174 P. 2d 1017, the City was an indispensable party. It is first noted that G. S. 1949, 72-1717, on which appellant predicates her argument, was repealed in 1951 and before her injuries were sustained. Under G. S. 1951 Supp., 72-1612 the board of education is a body corporate and politic, possessing the usual powers of a corporation for public purposes under a designated name and in such name may sue and be sued and acquire, hold and convey real and personal property in accordance with law. Under G. S. 1951 Supp., 72-1623 the board of education “shall hold the title to, and have the care and keeping of all school buildings and other school properties belonging to the city school district.” These statutes, in effect when plaintiff was injured, control. The rule of the Hubert case above has no application here and the trial court did not err in sustaining the City’s demurrer.
Insofar as the Board’s demurrer is concerned, as we understand her argument appellant does not contend but that the rule is that a governmental corporation or a quasi-municipal corporation, like the board of education of a city, is never liable for the consequences of a breach of public duty or the neglect or wrong of its officers unless there is a statute expressly imposing such liability. (See, e. g., Lumber Co. v. Elliott, 59 Kan. 42, 51 Pac. 894; Shawnee County v. Jacobs, 79 Kan. 76, 99 Pac. 817; Fisher v. Township, 87 Kan. 674, 125 Pac. 94, 41 L.R.A. n.s. 1074, Ann. Cas. 1914 A 554; Phillips v. State Highway Comm., 148 Kan. 702, 84 P. 2d 927; Parker v. City of Wichita, 150 Kan. 249, 92 P. 2d 86; Wray v. City of Independence, 150 Kan. 258, 92 P. 2d 84; Smith v. Kansas City, 158 Kan. 213, 146 P. 2d 660; and Freeburne v. The City of Emporia, this day decided, 176 Kan. 503, 271 P. 2d 298, and cases cited.) But she does contend that such a governmental corporation’s immunity does not extend to the creation or maintenance of a nuisance, in support of which she cites Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P. 2d 227, 5 A.L.R. 2d 47, and Neiman v. Common School District, 171 Kan. 237, 232 P. 2d 422, and cases from other jurisdictions. And see also Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798. Without elaboration it may be said the general rule contended for is the law of this state and the crucial question is whether the allegations of the petition warrant its application.
We have previously noted that appellant successfully resisted the Board’s motion to strike the allegations there was a “nuisance” on the ground such allegations constituted only conclusions of the pleader and were redundant, irrelevant and repetitious. Such a motion was proper for failure to make it might constitute a waiver of objection as to its being a proper part of the pleading (Sheldon v. Board of Education, 134 Kan. 135, 4 P. 2d 430). If the allegation there was a nuisance is only a conclusion of the pleader, a matter later mentioned, it was not admitted by the demurrer now under consideration.
Before taking up the allegations of the petition, we note that we have said on more than one occasion that the word “nuisance” is incapable of precise definition, but that generally it means annoyance and that any use of property which endangers life or health, or gives offense to the senses, violates the laws of decency or obstructs reasonable and comfortable use of property, may be said to constitute a nuisance. See Hofstetter v. Myers, Inc., 170 Kan. 564, 228 P. 2d 522, 24 A. L. R. 2d 188, and Jeakins v. City of El Dorado, supra, and cases cited. For present purposes we do not deem it necessary to discuss any distinctions between public and private nuisances, nor between injuries to persons or to property, nor to any possible exceptions to the general rule above stated.
No authority need be cited that a wash basin located in a school building is not a nuisance in and of itself and we hold it was not. The only allegation of fact is that many of the pupils, in using the wash basin, would splash water on the floor which was smooth and hard surfaced and that some of them would throw paper towels on the floor which caused the floor to be slippery. Her allegation that a nuisance was created is only her conclusion. The above allegations do not charge the Board with the creation of a nuisance, rather if an unsafe condition is created it is by the pupils, and if the Board is to be charged in any manner it is because its employees do not prevent the pupils from splashing the water on the floor and dropping the towels — in which event the failure of the employees might possibly be negligent, but the situation created would not be a nuisance in law and the rule as to governmental immunity would apply. To hold otherwise would be counter to common experience in the conduct of schools, and would be to hold that the Board was legally liable in damages to any pupil injured by reason of the acts of other pupils if the Board could have prevented the injury. The schools are conducted in a governmental capacity and the furnishing of wash basins is a necessary part of a school building’s equipment. It is too well known to be subject to debate that children of the third grade and about nine years of age, as was the appellant, when using the washing facilities, will splash water on the floor and will not take care that paper towels are not thrown on the floor. Under such circumstances, and under the allegations of appellant’s petition, we will not hold that the fact it is done constitutes a nuisance.
There remains for consideration appellant’s complaint that the trial court erred in that after sustaining the demurrers, it refused her permission to amend her petition. In her brief appellant says she believes the trial court erred, but she presents no argument of any kind. The record set forth in the abstract and statements in her brief do not disclose what possible amendments could have been made that would have altered the situation as it was pleaded in the petition. It has not been made to appear the trial court erred.
The orders, rulings, and judgments of the trial court are affirmed. | [
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|
The opinion of the court was delivered by
Thiele, J.:
Lowell Nathaniel Moody, who was incarcerated in the state penitentiary under circumstances later mentioned, filed his petition for a writ of habeas corpus in the district court of Leavenworth County to secure his release from custody. The respondent warden filed his return to the writ and upon the hearing on July 13, 1953, the trial court sustained the petition and ordered and adjudged that the petitioner be discharged. The respondent appeals to this court.
No dispute of fact is involved. On September 21,1946, as a result of complaints duly filed in Butler County, Moody was bound over for trial in the district court where an information containing two counts was filed on October 10, 1946. The first count charged him with failing to support his wife, who was in destitute and necessitous circumstances. The second charged him with failing to support his children under like circumstances.
On October 18, 1946, a trial was had at which Moody entered a plea of guilty and upon that day the trial court sentenced him to the state penitentiary for a period of not to exceed two years on each count, the sentences to run consecutively. Notwithstanding the express provisions of G. S. 1949, 62-1516, the journal entry of judgment contained no statement of the statute under which he was charged, nor any statement of the statue under which he was sentenced.
On the same day Moody was sentenced, he was “paroled.” The “order of parole” fixed no time for which it was effective. The conditions were that Moody appear personally before the court on stated days (being first day of the term) during continuance of the parole and produce proof he had faithfully kept his parole and conducted himself as a peaceful and law-abiding citizen; that he give bond in the sum of blank dollars, and not depart without leave and that when not living with his wife nor furnishing her with support he pay her the sum of $50 per month.
On August 27, 1948, a motion to revoke the parole was filed. On December 11,1948, the trial court entered an order canceling the the payments ordered on October 18, 1946, and directed Moody to pay $100 per month to the clerk of the court for the support of his wife and children, and overruled the motion to revoke the parole.
On July 7,1950, a decree of divorce was rendered in which Moody was ordered to pay the clerk of the court $100 per month for the support of his minor children.
On February 23, 1951, a motion to revoke the parole was filed, and on April 4,1951, it was sustained, but on April 9,1951, the order revoking the parole was set aside and Moody was again paroled.
On September 5, 1951, the trial court heard another motion to revoke the parole, found that no notice was necessary; that the order of parole had been violated and should be revoked and so ordered and further ordered that the sheriff take Moody into custody and take him to the state penitentiary to serve the sentences as imposed on October 18, 1946.
The lapse of time is not explained in the record disclosed by the abstracts but on June 9, 1953, Moody was delivered to the state penitentiary. Shortly thereafter the instant proceeding was commenced resulting in the order of discharge of July 13, 1953, above mentioned.
As shown by the journal entry of judgment the Leavenworth County district court found that Moody was sentenced on October 18, 1946, for two periods of two years each to run consecutively and was paroled; that the parole was revoked September 5, 1951, and Moody was committed to the state penitentiary on June 9, 1953; that the order of the Butler county district court of September 5, 1951, was without its jurisdiction; that G. S. 1935, 21-442 to 21-448 are controlling and the court was limited in its jurisdiction for a period of two years’ probation and that Moody’s restraint was illegal.
Appellant in his brief states that the question involved is whether the provisions of G. S. 1935, 21-442 to 21-448 are exclusively controlling insofar as they relate to parole or probation of persons convicted of desertion and nonsupport, but as argued there is included the proposition that the parole was under G. S. 1935, 62-2203, and that it was properly revoked under the amendment of that statute as it now appears as G. S. 1949, 62-2203. We are of the opinion an answer to those questions renders it unnecessary to discuss any effect of the divorce decree of July 7, 1950, or the correctness of the ruling of September 5, 1951, that notice of Moody of the revocation of his parole was unnecessary.
References have been made above to G. S. 1935, 21-442 to 21-448. Those sections came into our crimes act by the enactment of Laws 1911, ch. 163. Section 1 of that act (G. S. 1935, 21-442) made it an offense for any husband, without just cause, to desert or neglect or refuse to provide for the support and maintenance of his wife in-destitute or necessitous circumstances, or for any parent, in like case, to support and maintain his child under the age of sixteen years, and in the event of conviction to be punished by imprisonment in the reformatory or penitentiary not exceeding two years. Under this section the offense punishable is for felony under G. S. 1935, 62-104. Although in the instant case the journal entry contained no statement to that effect, no question is now raised, and probably could not be upheld if it were, but that the prosecution was under G. S. 1935, 21-442. For present purposes we are concerned only with sections 4 and 5 of the original act which later appeared as G. S. 1935, 21-445 and 446, and as G. S. 1949, 21-445 and 446. Under these sections, as applied to the facts here, on entry of a plea of guilty, instead of imposing the penalty provided in the first section of the act “or in addition thereto” the trial court, in its discretion, has the power to make an order, subject to change by the court as circumstances may require, directing the defendant to pay a certain sum periodically “for a term not exceeding two years” to the wife or to the custodian of the children, and “shall also have the power to release the defendant from custody on probation for the period so fixed” upon his entering into a recognizance the conditions of which are specified in the statute. It is further provided that if the court be satisfied by information and due proof under oath “that at any time during said period of two years the defendant has violated the terms of such order” it may, inter alia, enforce the suspended sentence.
Appellant directs our attention further to G. S. 1935, 62-2203, in effect when Moody pleaded guilty, which provided that when any person shall be convicted of any felony, with exceptions and conditions not pertinent here, the court before whom the conviction was had may parole such person and permit him to go and remain at large. G. S. 1935, 62-2205 which is still in effect provides that when any person shall be paroled under 62-2203 it shall be the duty of the court, at the time of granting the parole, to require a bond the conditions of which are stated. Under G. S. 1935, 62-2209 it is provided, in part, that no person paroled under 62-2205 shall be granted an absolute discharge at an earlier period than two years from the date of his parole “nor shall such parole continue for a longer period than ten years.”
In 1949 the above 62-2203 was amended and now appears as G. S. 1949, 62-2203. We note only that it now provides that “the period of parole, together with any extension thereof, shall not exceed five years” and further that the defendant while on parole may be required “to provide for the support of any person or persons for whose support he is legally responsible.”
As we understand appellant’s argument it is that the trial court in granting parole or probation had a wide discretion in fixing its terms (24 C. J. S. p. 183); that the amendment of 62-2203 merely declared an existing power, and that the trial court’s parole to Moody was under the parole provisions of the criminal code (G. S. 1935, ch. 62, art. 22) and not under the provisions of the crimes act (G. S. 1935, 21-442, et seq.). In making that argument the appellant directs attention to In re Estate of Park, 147 Kan. 142, syl. ¶ 1, 75 P. 2d 842, holding that where one statute deals with a subject in general terms and another deals with it in a more minute way the two should be read together and harmonized if possible, with a view to giving effect to a consistent legislative policy but to the extent of any necessary repugnancy between them the special statute will prevail over the general one, and that the rule has no application where there is no conflict. Appellant says there is no clear and unmistakable directive by the legislature that the trial judge could not parole under G. S. 1935, 62-2203.
In our opinion the appellant’s contention cannot be sustained. It has been repeatedly held that where there is a conflict between a statute dealing generally with a subject and another dealing with a certain phase of it, the specific legislation controls. See Cutrel v. Best, 169 Kan. 16, 217 P. 2d 270, where it was said:
“It has been held repeatedly that where there is conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific legislation controls (Harkrader v. Whitman, 142 Kan. 186, 46 P. 2d 1) and that where there is repugnancy between a special statute and a general statute, the special statute will prevail (In re Estate of Park, 147 Kan. 142, 75 P. 2d 842; Smith v. Henry, 155 Kan. 283, 124 P. 2d 448; Sherman County Commrs v. Alden, 158 Kan. 487, 148 P. 2d 509, 152 A. L. R. 881; Wyandotte County Commrs v. Ferguson, 159 Kan. 80, 151 P. 2d 694).”
And see also State v. Reynolds, 152 Kan. 762, syl. ¶ 3, 107 P. 2d 728; and State, ex rel., v. Throckmorton, 169 Kan. 481, syl. ¶ 2, 219 P. 2d 413, to the same effect.
The provisions of G. S. 1935, 21-442 to 21-448, defining the offense of wife and child desertion and providing for probation of the offending husband and father set up a procedure that cannot be reconciled with the general provisions for parole contained in the code of criminal procedure as set forth in G. S. 1935, ch. 62, art. 22; The record before us clearly discloses that appellee Moody was paroled (placed on probation) on October 18, 1946, and that within the period of two years thereafter there was no revocation. The district court of Butler County was without power or authority to revoke that parole or any other attempted parole made after the expiration of two years after October 18, 1946. And it follows that the trial court in Leavenworth county did not err in granting to appellee his discharge from the custody of the respondent.
Judgment affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The last opinion in this action is found in Stillie v. Stillie, 129 Kan. 19, 281 Pac. 925. Other opinions are found in 115 Kan. 420, 223 Pac. 281; 119 Kan. 816, 244 Pac. 844; 120 Kan. 565, 244 Pac. 844; 121 Kan. 591, 249 Pac. 672.
After the last opinion had been filed a rehearing was granted. The cause has been ably argued on the rehearing. After hearing that argument and after considering all matters that have been presented, the court concludes to adhere to the last opinion filed and affirm the judgment of the trial court. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in the nature of a creditor’s bill to set aside a deed alleged to have been given in fraud of creditors and to subject the property to the payment of plaintiff’s money judgment. The trial court made findings of fact, which may be summarized as follows: The defendant, A. W. Aderhold, was engaged in an automobile business at Kinsley. Beginning in 1924, and until July, 1928, he borrowed substantial sums of money from the plaintiff bank, his father, A. F. Aderhold, signing the notes with him as joint maker. In August, 1928, A. W. Aderhold was adjudged a bankrupt, and later procured his final discharge. In the bankruptcy proceeding the real property in question was found to be his homestead, and an order was made setting the property over to him as exempt, but without prejudice to the rights of the plaintiff bank. In September, 1928, plaintiff recovered a judgment against A. F. Aderhold on the notes above mentioned for the sum of $8,643.67, on which judgment A. F. Aderhold has paid $800, and two dividends amounting to $350.40, received from the bankrupt estate of A. W. Aderhold, have been credited on the-judgment. Execution on the judgment has been issued and returned wholly unsatisfied. A. W. Aderhold was married in April, 1925, and at that time, and prior thereto, his father, A. F. Aderhold, was the owner of the real property in controversy, being two lots in the city of Kinsley. The dwelling house on the lots was in a very dilapidated condition, and shortly before the marriage of the son his father told him that if he would fix up the property for a home he would give it to him. The son agreed to do so, and did repair the property, and has built other lasting and valuable improvements thereon, and since his marriage has continued to occupy the same as a home. At the time A. F. Aderhold made the gift of the property to his son it was of the value of $400, and at the time of the trial of this case was of the value of $1,500. A. F. Aderhold paid the taxes on this property for the year 1925, and A. W. Aderhold paid the taxes for 1926 and 1927. At Christmas time, 1927, A. F. Aderhold and wife executed a deed conveying the property to the son and placed the deed on the family Christmas tree for him, and a few days later the son told one of the officers of plaintiff bank that his father had given him the property as a Christmas present. At the time of the gift of the property, and at the time of the execution of the deed, neither A. F. Aderhold nor A. W. Aderhold had any intention of cheating, defrauding, or delaying creditors. At that time the value of the nonexempt property of A. F. Aderhold did not exceed $800. The court concluded as a matter of law that A. F. Aderhold was insolvent at the time of the gift of the real property, as above mentioned, to his son; that at this time the property was of the value of $400, for which amount plaintiff should have a first lien, and that the property should be sold as upon execution to satisfy such lien. Judgment was rendered accordingly.
There was no request for additional findings of fact in the trial court, and no objection to the findings made nor request for their modification. The evidence has not been brought to this court, but the parties have stipulated that the evidence shows that A. W. Aderhold paid $275 for making improvements upon the outside buildings upon the premises, and in addition thereto he painted and papered the house, made other improvements, and planted.trees and grass; but the cost or expense of such improvements is not shown.
It is clear from these findings that the plaintiff bank had no money judgment against the son, A. W. Aderhold. Its only money judgment was against the father, A. F. Aderhold, hence the bank cannot in this action reach property which never did belong to the father, but which does in fact belong to the son. This conclusion does not depend on whether the son’s property sought to be sub jected to the payment of the bank’s judgment is exempt to the son under the homestead or other laws. Even if the son’s property was nonexempt, the bank could not subject it to the payment of its judgment for the reason that it has no judgment against the son.
Appellant argues that the gift and conveyance of the property, being purely voluntary, and having been made by A. F. Aderhold when he was insolvent, it is deemed fraudulent as to his creditors notwithstanding the fact that there was no intention on the part either of the donor or the donee at that time to defraud the creditors of either. This contention is sustained by the former holdings of this court. (Hardware Co. v. Semke, 105 Kan. 628, 185 Pac. 732; Jennings & Sons Tire & Accessory Co. v. Farmer, 127 Kan. 164, 272 Pac. 167, and authorities cited therein.) Appellant further contends that the gift being fraudulent as to creditors, the donee cannot impress the property with the characteristics of a homestead so as to defeat an action to subject the property to the payment of the debts of the donor, citing Kline v. Cowan, 84 Kan. 772, 115 Pac. 587. The trial court held in accordance with this view, or it would not have allowed the plaintiff anything, hence there is no error in that ruling of which appellant can complain. Appellant argues that the rule which allows a grantee of property conveyed in fraud of creditors, compensation for improvements, repairs and taxes is not an inflexible one and should be applied only when equity warrants it (27 C. J. 673, 674), and argues that the son, having been a joint maker with his father on the notes to the bank, is not in such a situation that a court of equity should permit him to retain the value of improvements and repairs which he had placed on the property. This is a point which primarily should be passed upon by the trial court sitting as a chancellor, and its judgment should not be disturbed unless there is a clear showing of abuse of discretion. In view of the fact that the bank has no judgment against the son, and cannot in this action ask to have his property subjected to the payment of its judgment, there was no such abuse of discretion. Appellant further contends that the trial court should not have allowed the son the incidental, appreciation in the value of the property. There is nothing in this record to indicate that the court did so. The property was in a dilapidated condition at the time of the gift. By additions, repairs and improvements it became more valuable. That is all the court finds.
Appellee by cross appeal contends that the court erred in impress ing a lien for any sum on the property in favor of plaintiff, and argues that the doctrine of presumptive fraud will afford no relief to subsequent creditors. In effect the trial court held the indebtedness existing at the time of the gift was never paid, but simply renewed from time to time with some- additions and reductions, hence there is no merit in this contention. Appellee further argues that equity protects and enforces a parol gift equally with a parol contract where possession is taken and lasting and valuable improvements have been made. This is true, of course, as between the donor and the donee, but the application of this principle would not defeat the rights of creditors of the donor to subject the property to the payment of his debts.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Jochems, J.:
This was an action brought to obtain a declaratory judgment. The court sustained demurrers to the petition and plaintiff has appealed.
The petition set forth in substance the following:
That the appellant school district No. 19 is an ordinary common-school district in which the city of Hoxie, a city of the third class, is located; that in 1903 the legislature enacted chapter 471 of the Laws of 1903, which provided for the establishment and maintenance of a county high school in Sheridan county. The act required that “the district board of the district where it is sought to establish such high school shall give a written guaranty to the county that said school district shall provide suitable rooms for said school so long as said high school is maintained in said district.” That the school board of district No. 19 executed a written guaranty, copy of which was attached to plaintiff’s petition and reads as follows:
“Hoxie, Kan., August 3, 1903.
“To the Board of County Commissioners of Sheridan County, Kansas: We the undersigned school board of district No. 19, in and for Sheridan county, Kansas, do hereby, in accordance with the provisions of chapter 471 of the Session Laws of 1903, relating to the establishment of a county high school in Sheridan county, Kansas, do hereby as such board, on behalf of the aforesaid school district, do hereby guarantee to the county of Sheridan and state of Kansas that said school district will provide suitable rooms for a high school in said district so long as the high school is maintained in said district in accordance with and under the terms and provisions of the aforesaid law.”
The petition further set up that the plaintiff school district provided the rooms for the county high school under the guaranty, and is continuing to provide rooms for the high school which is now known as the Sheridan community high school.
In 1923 the legislature enacted a statute (R. S. 1923, 72-2501 to 72-2506) by the terms of which all county high schools, including the Sheridan county high school, were' disorganized and instead there were created community high schools. Prior to the passage of this act in 1923 the Sheridan county high school as created by the act of 1903, supra, was supported by taxes levied on all of the taxable property in Sheridan county. The district of the present community high school is different from the original Sheridan, county high-school district in that the community high-school district does not include any territory included in any other accredited high school, and as a result of that provision in the act of 1923, a substantial amount of the taxable property of Sheridan county does not bear any part of the burden of supporting the present Sheridan community high school. The petition further alleged that there are also material changes in the management, the course of study and other essentials under the act of 1923, so that the Sheridan community high school is not maintained in accordance with the provisions of the original law which established the Sheridan county high school in 1903. The petition alleged that conditions have changed in the community and as a result an unfair burden is placed upon the plaintiff district in requiring it to furnish rooms for the housing of the community high school, which community high-school district includes many thousand acres of lands not within the boundaries of school district No. 19.
The plaintiff contends that it is not now under any obligation to continue to furnish the rooms for the community high school, and seeks a declaratory judgment on its petition. Demurrers were sustained by the court, and plaintiff appeals to this court, contending that the demurrers should not have been sustained but that it should have had a declaratory judgment. In this the plaintiff is right. Since the petition set forth an “actual controversy,” over the interpretation of statutes, the court should have overruled the demurrers and proceeded with the cause as contemplated by the provisions of R. S. 60-3127 to 60-3132, inclusive.
When the legislature passed the act of 1923 it disorganized the school district theretofore known as the Sheridan county high school and substituted in its place the Sheridan community high school. Under chapter 471 of the Laws of 1903 the county high-school district was liable for the maintenance of the Sheridan county high school. This district comprised the entire county. But under the community high-school law enacted in 1923 the district was reduced to that portion of the county “not included in the territory of other accredited high schools.” In view of this material change in the district liable to taxation for the support and maintenance of the high school, we hold that the guaranty previously given by the board of school district No. 19, set out heretofore, is no longer binding on the plaintiff district.
Since there is no agreement between plaintiff and the defendant community high-school district which binds plaintiff to furnish rooms for the community high school, it follows that plaintiff is free from any obligation to do so.
The cause is reversed with instructions to the trial court to overrule the demurrers and render judgment in accordance herewith, the costs to be divided equally between the parties. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages alleged to have been sustained when defendants negligently permitted gasoline to escape from a tank and one of the defendants set fire to it, causing damage to plaintiff’s automobile. The demurrer of some of defendants to plaintiff’s amended petition was overruled. These defendants have appealed.
The plaintiff filed a petition to which motions to order him to make it more definite and certain were directed. These motions were sustained in part and overruled in part. He then filed an amended petition. Since no argument is made as to the effect of the action taken by the court on those motions and since the demurrers were directed to the amended petition, the allegations of the amended petition will be referred to herein.
The action was against the Standard Oil Company, Thomas Parker, Sr., Orval Powell, Paul Ingels and Ben Bowen, individuals. The petition alleged Parker and Standard operated a filling' station in Lawrence and were charged with the responsibility of maintaining it in a safe condition; that they, together with Powell, were engaged on the day in question in removing storage tanks from the ground at that service station; that plaintiff’s automobile was parked on the street near the station; that while Standard and Parker and Powell were engaged in removing these storage tanks, they negligently allowed large quantities of gasoline to spill and it flowed down the street and along the curbings and accumulated under the cars parked there, especially under plaintiff’s car; that the fire department was summoned and Fireman Bowen at the direction and supervision of Fire Chief Ingels negligently touched a cigarette lighter to the surface of the street, causing gasoline fumes to burst into flame, igniting the gasoline under plaintiff’s car and damaging it; that the spilling of the gasoline created a dangerous hazard and the spreading of it and the damage to plaintiff’s vehicle were the direct result of acts of negligence on the part of defendants, Standard, Parker and Powell; that they were jointly or severally negligent in the following particulars: Failing to remove from the tanks the gasoline which spilled out upon the public streets before taking these tanks from the ground when they knew, or should have known, by the exercise of due care that any remaining quantities of gasoline left in the tanks could, or would have, spilled upon the streets and thereby created a dangerous hazard; in failing to remove from the tanks the remaining quantities of gasoline which leaked from small holes in the bottom of the tank out upon the streets and created a dangerous hazard; failing to exercise a high degree of care throughout the operation when working with a highly combustible and inflammable product. Plaintiff alleged that the negligence of defendant Ingels consisted of giving Bowen the order to touch a cigarette lighter to the ground when he knew, or should have known, that gasoline fumes were present and would easily ignite the gasoline in a fire that would damage property; failing to exercise a high degree of care when working with a highly inflammable and combustible product. Plaintiff alleged that the negligence of defendant Bowen consisted of touching a cigarette lighter to the ground when he knew, or should have known, that gasoline fumes were present.
Various items of damage were alleged and judgment was prayed in the amount of $1,137.
To this amended petition the Standard Oil Company, Parker Buick Company, and the Powell Construction Company all filed demurrers on the ground the amended petition did not state facts sufficient to constitute a cause of action. These demurrers were overruled. All three of the parties mentioned, that is, the Standard Oil Company, Parker Buick Company and the Powell Construction Company, filed notices of appeal. They filed a joint abstract and stated that their specifications of error were that the trial court erred in overruling the demurrer of appellants to plaintiff’s amended petition. This abstract did not show it but we are informed that defendants Ingels and Bowen filed answers, which are now on file in the district court.
The defendants filed a joint brief. Their argument is that the allegations of the amended petition must be taken as true and when they are thus viewed it must be concluded as a matter of law that any negligence with which they are charged was not the proximate cause of the damage sustained by appellee, but was approximately caused by the intervening act of the Fireman Bowen in touching a cigarette lighter to the ground at the direction of Fire Chief Ingels when they both knew, or should have known, that gasoline fumes were present and would easily ignite and result in a fire.
Defendants concede the rule to be that in an action for damages grounded on negligence, the questions of negligence and of proximate cause are for the jury to determine. (See Jones v. Kansas Public Service Co., 158 Kan. 367, 147 P. 2d 723.) They stress the rule, however, where we have held that where it is either admitted or from the facts as found, or established, that two distinct causes unrelated in their operation cojoined to produce a given injury, the question of remote and proximate cause becomes one of law. (See Cruzan v. Grace, 165 Kan. 638, 198 P. 2d 154.) Many opinions are cited where we have, under the facts of the particular case, so held. Each case, however, must be decided on its own facts. The question always is — Were the two causes unrelated? We have held many times that there may be two or more proximate causes. (See Roehrman v. D. S. & O. Rural Electric Cooperative Ass’n, 174 Kan. 498, 256 P. 2d 872.) There we said:
“Next the co-operative Association argues the petition shows no negligence on its part which was the proximate cause of any of the injuries sustained by appellee. The gist of this argument is bottomed upon the premise that the breaking of the pole, resulting in the breaking in the line, was the proximate cause of the injuries sustained. Again we must disagree. The mere fact that the act of another was responsible for the break in the line did not relieve such appellant from the acts of negligence charged against it in the petition if established as alleged. The books are full of cases holding that there may be more than one proximate or legal cause of an injury. See, e. g., Rowell v. City of Wichita, 162 Kan. 294, 302, 303, 176 P. 2d 590, and cases there cited.”
To the same effect is Acock v. Kansas City Power & Light Co., 135 Kan. 389, 10 P. 2d 877. There we said:
“The light company argues that even if it were negligent in closing the switch at substation No. 7 and sending the current over this line at the time and under the circumstances it did, such negligence was not the proximate cause of tire death of Acock; that there was a separate, unrelated cause, namely, the negligence of the construction company in firing the blast as it did. The construction company contends that if it were negligent in tire respects the jury found it to be, namely, in that the charge of dynamite was not properly placed for its size, and that it failed to report to parties concerned after it knew damage had been done, such negligence was not the proximate cause of the injury, and argues that there was a separate, intervening cause, namely, the pushing in of the switch and turning on of the current by the light company after it knew there was serious trouble on the line and without proper inspection of it. Under the evidence in this case these were not separate, intervening causes. Here both parties were negligent. While it is true that one succeeded the other in time, they are necessarily related and interwoven, and the death of Acock was the result of the concurrent negligence of both appellants.”
In Pinson v. Young, 100 Kan. 452, 164 Pac. 1102, the son of plaintiff, a fireman, was killed by an explosion while he was fighting a fire in a building containing dynamite. The plaintiffs charged the defendants with negligently storing the dynamite in the building. Amongst other arguments the defendants argued the fire and not the negligent storage of dynamite was the proximate cause of the fireman’s death. On that point we said:
“Both were proximate causes. The fire alone would not have caused his death. The dynamite alone might not have caused it. Perhaps the fire was the result of negligence. The storage of the dynamite was undoubtedly so. These two contributing delinquencies, the fire and the negligent storage of the dynamite — both proximate — wrought this result.”
There are many cases which might be cited either way on their peculiar facts. The point is, the damage to plaintiff’s automobile would not have occurred had it not been for the negligence of these appellants and the fire. The fire for which they should have been on guard or which they should have foreseen or anticipated need not have been the one set by the fireman. The dangerousness and highly explosive character of gasoline is such that these appellants should have anticipated the danger of its being set afire by some agency there on a busy street in the city. We cannot say the act of the fireman in touching his lighter to the pavement was so unrelated to the negligence of appellants in spilling the gasoline as to constitute the sole proximate cause of the fire as a matter of law.
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The opinion of the court was delivered by
Burch, J.:
The action was one on a contract of indemnity which served as a policy insuring plaintiff against loss through abstraction and wrongful appropriation by the cashier of the bank, of bonds on deposit in the American State Bank of Wichita. The defense was that if liability on the policy accrued the liability was subsequently extinguished. The court stated findings of fact and conclusions of law, and rendered judgment for plaintiff. The insurers appeal.
Plaintiff was a dealer in bonds at Wichita and did its banking business with the American State Bank. Plaintiff had a general agreement with the bank reading as follows:
“American State Bank, Wichita, Kansas. March 24, 1922.
“Gentlemen — We hereby agree to repurchase from you upon demand any of the municipal or government bonds, warrants or'other securities which you may be carrying for us from time to time, paying for same par and interest, to be computed at the rate of six (6) per cent, upon such funds as we may use. and we are to receive the coupons from the bonds as they mature.
“On certificates of deposit having a definite maturity we are to receive interest at the rate of four (4) per cent.
“Yours very truly, R. E. Crummer, Vice President.”
Particular transactions were evidenced by writings applying to them, and this litigation may be traced to the following letter, pursuant to which plaintiff delivered to the bank bonds of the par value of $150,000:
“American State Bank, Wichita, Kan. February 9, 1923.
“Gentlemen — We are handing you herewith $150,000 par value municipal bonds, payment for which we acknowledge, and which we agree to repurchase upon your or our demand at par, plus six per cent interest from this date.
“Yours truly, H. M. Dobbin, Cashier.”
•The two instruments, whether read together or separately, show they were not contracts to buy from the bank as owner bonds previously delivered to the bank by plaintiff. The nature of the use, in fact, made of the instruments was described by witnesses. Description of the practice disclosed the writing dated February 9 constituted a memorandum of pledge of bonds as security for a loan of money payable on demand of either party.
Among the bonds pledged pursuant to the “loan letter” of February 9 were bonds of Hill county, Montana, of the par value of $28,000. The loan was paid by plaintiff in three payments of $50,000 each, made on February 10, February 14, and February 26. On final payment the loan letter was stamped páid. The Hill county bonds remained on deposit in a special place in the vault of the bank, which was a recognized place of safe deposit under the terms of the insurance policy. Afterwards Phil Drumm, cashier of the bank, asked plaintiff’s permission to use plaintiff’s bonds as collateral security for loans to the bank by its correspondents. Permission to do this was denied because plaintiff might need the bonds at any time. About April 9 Drumm did hypothecate the bonds to the National Bank of Commerce of St. Louis, Mo. Early in June plaintiff requested the bank to deliver the bonds at plaintiff’s branch office in Kansas City, Mo. On June 9 the bonds arrived there, with a draft attached in favor of the St. Louis bank for $28,000. Plaintiff had no previous knowledge of misappropriation of the bonds. Plaintiff directed its Kansas City office to take up the St. Louis draft by draft on plaintiff, which was paid by plaintiff on June 12. By this means plaintiff regained possession of its bonds.
Proof of the foregoing facts established liability to plaintiff on the insurance policy. The bonds had been unlawfully abstracted, plaintiff was compelled to pay $28,000 to obtain possession of them, and a cause of action on the policy for the amount of the loss arose. This brings us to the defense — -that the liability was discharged by subsequent course of dealing between plaintiff and the bank.
On June 12 Hoffman, then cashier for plaintiff, demanded of Drumm that plaintiff be given credit for $28,000 on the books of the bank. Drumm promised to give the credit, and Hoffman charged the bank with the amount on plaintiff’s books. On June 16 Hoffman discovered Drumm had not given plaintiff credit on the books of the bank. Pursuant to personal interview at the bank on that day between Hoffman and Drumm, Drumm entered the amount on plaintiff’s pass book, and made out a deposit slip from which an entry of credit was made on the books of the bank.
Plaintiff’s account on the books of the bank shows debits and credits on June 11, 12, 13, 14, 15, 16 and 18. June 17 was Sunday. The bank was closed by the bank commissioner on the morning of June 19, before it opened for business. When the bank closed plaintiff had a large credit balance. The aggregate amount included the $28,000 itém. The assets of the bank were exhausted, the state bank guaranty fund was insolvent, and after distribution of assets plaintiff still had an unpaid balance due it of $16,618. Plaintiff was given judgment for that amount.
Drumm’s promise of June 12 to give plaintiff credit for the value of the bonds made no funds available to plaintiff whereby plaintiff might recoup its loss. Concerning the entry made on plaintiff’s books, Hoffman testified as follows:
“Q. Now then, you demanded credit for Brown-Crummer of the bank for that particular item of $28,000, didn’t you? A. Yes.
“Q. And you told the man that ‘you hadn’t any business selling my bonds’? A. Yes.
“Q. And he told you some story that didn’t suit you, and you said, ‘I want credit for them’? A. Yes.
“Q. And so then you, immediately following that conversation, made the entry on your books of $28,000 as a charge against the bank? A. Yes¡
“Q. You wanted to get payment of the $28,000 that you had paid out for the purpose of getting your bonds back. - That was the purpose of that telephone? A. Yes.
“Q. You had your conversation with Drumm, and as a result of that conversation you then put that entry on Brown-Crummer’s books, taking credit for $28,000? A. No; the conversation didn’t have anything to do with iny books. It was Drumm I was hollering at.
“Q. I say, as a result of that conversation you entered it on your books? A. No; it wouldn’t be the result of the conversation; I would make that entry anyhow.
“Q. Now then, you were taking credit on your books because of the agreement that you had with Drumm, weren’t you? A. No.
“Q. What were you taking it for? A. Because Drumm owed it to me.
“Q. Drumm owed it to you? A. Yes.
“Q. And he agreed to pay it to you? A. Yes.
“Q. And that is why you were taking credit on your books? A. Drumm didn’t have anything to do with my books.
“Q. Why were you taking credit, I am asking you? Why were you taking credit on your books? A. Because the bank owed it to me. It didn’t make any difference whether I agreed with Drumm or not. He didn’t have anything to do with it.
“Q. You wouldn’t put it there, would you? A. Where else would I put it? Where else would I put it?
“Q. You knew before you telephoned to Drumm that you were making a— going to make claim against him for $28,000 for having sent your bonds down to St. Louis? A. Yes.
“Q. . . . And you made the entry because of the conversation you had with Drumm? A. No.
“Q. Why didn’t you make the entry before you telephoned to Drumm, then? A. Well, I don’t know. ... It wouldn’t change the entry whether I talked with him before or after. ... I made that entry on my books to offset this draft.”
The court made the following finding of fact:
“As a matter of bookkeeping and for information of his own company, Hoffman made an entry on the books of the Brown-Crummer company of a credit of $28,000, and debited the American State Bank in like amount. Nothing was said as between Hoffman and Drumm as to this entry.”
The finding was plainly based on Hoffman’s testimony, is fully sustained by that testimony, defendants introduced no evidence at the trial, and the finding is conclusive here.
Because plaintiff would issue checks which would not appear at the bank for many days, and because the bank did not always enter deposits on its own books the day they were made, the daily balances of the two sets of books would not agree. It so happened that on June 12 plaintiff’s own books showed its bank account was overdrawn. The fact, however, is not of the slightest consequence. No matter what plaintiff’s books might show, nothing whatever had occurred which could operate to discharge the bank’s liability for misappropriating the bonds. The result is, Hoffman’s entry on plaintiff’s books, and the state of plaintiff’s account as shown by plaintiff’s books, are details of the narrative of the case without legal significance.
At the trial the bank books containing plaintiff’s account disclosed the following:
“Date. Debit. Credit. Balance.
June 11........................................ $37,902.01
June 12........................ $97,091.63 ........ 59,189.62 (red)
June 12................................ $94.55 ........
June 12................................ 3,313.92 55,781.15 (red)
June 12................................ 40,000.00 ........
June 12................................ 15,071.00 ........
June 12................................ 3,000.00 2,289.85”
The debit on June 12 was for a cashier’s check issued to plaintiff which was not cashed, and which was returned on June 16. The red balances were not true balances. The item of $40,000 was in fact deposited by plaintiff on June 10, and entered by the bank on plaintiff’s pass book. Evidently the deposit slip for the $40,000 credit was not written up for two days. There was evidence that there is no way to tell, from entries on the bank’s books, what items, whether debit or credit, in fact came first in the course of a day’s business. Therefore it is not conclusive from the bank’s books that plaintiff was in fact overdrawn at any timé during the hours the bank was open on June 12. When the day closed plaintiff had a balance. If plaintiff had received credit for $28,000 the balance would have been that much greater. That credit had not been given. On June 12 plaintiff got nothing whatever from the bank, whether money or credit, by way of reimbursement for the loss consequent upon the unlawful abstraction of the bonds, and the state of plaintiff’s account on the books of the bank is of no legal significance.
Relating to the transaction of June 16, Hoffman testified as follows:
“Well, T was down there on other matters, and when I had finished, why, I asked him if he had given me this credit, and he didn’t seem to be sure, and I asked him to enter it on the book, and while he was entering it on the book he made out a ticket for it, so that was my discovery that he had not credited it on the 12th.”
The books of the bank disclosed the amount was credited to the account of plaintiff on June 16, and the court made the following finding of fact, which was in accordance with the evidence:
“June 16, plaintiff learned that Drumm had not credited plaintiff on the books of the American State Bank with $28,000 as' promised, and Hoffman again demanded such credit, which Drumm, cashier, then gave by entering the same on the pass book of the plaintiff company on that date, and by making out a deposit ticket for that amount, which was likewise credited to the account of the plaintiff on the books of the bank as of that date.”
The brief for defendants contains the following:
“The defendants contend that the entry of credit on the 16th was but a clerical confirmation of the agreement and contract made between the plaintiff and the bank on the 12th. Mr. Hoffman, the plaintiff’s cashier, testified to that effect, as follows:
“ ‘Q. So you took it over on the 16th, and you asked him to make the entry in your pass book, didn’t you? A. Yes.
“ ‘Q. That is, to carry out the agreement that he had with you on the 12th, wasn’t it? To carry out that agreement, and in order to carry out the agreement made, was it, also, that the entry was made on the bank’s books? A. Yes.
“ ‘Q. To carry out the agreement that you made on the 12th? He did write this deposit? This is his handwriting there? A. Yes.’ ”
Now just what occurred by which a “contract” was created, and what were the terms of the so-called contract? Hoffman testified as follows:
“A. I asked him why he had let our bonds get away from him — why they were in St. Louis — and he’ gave me his story . . .
“Q. And did you say anything further? A. Yes, sir.
“Q. What did you say? A. Asked him to give me credit for the $28,000.
“Q. What did he say? A. He agreed.”
The result is, the full extent of the only agreement which existed concerning credit for the bond loss was that Drumm would give plaintiff credit on the books of the bank for $28,000. As the court found, Hoffman did nothing pursuant to the agreement, Drumm did nothing, and the bank did nothing. No rights or liabilities had been changed, and the entry of credit on June 16 merely fulfilled Drumm’s promise to make the entry.
Defendants say acceptance of the “deposit credit” of $28,000 wiped out the debt arising from misappropriation of the bonds. There was no deposit credit. There was simply a credit. A general deposit of money, or of something representative of money or equivalent to money, passes title to the deposit from the depositor to the bank. Plaintiff did not deposit anything, and parted with no title to anything. The bank received nothing, and acquired no title to any deposit. On June 16 the bank was indebted to plaintiff in two ways: first, to plaintiff as a depositor, and second, to plaintiff on a claim for $28,000 for misappropriation of bonds. What occurred was that the debtor obligation of the bank on plaintiff’s checking account was increased by the amount of the credit, and plaintiff acquired privilege to check on its account to the extent of $28,000 more than the state of plaintiff’s account as a depositor would otherwise permit.
What did entry of the credit on June 16 do toward extinguishing the bank’s liability for conversion of the bonds? The liability of the bank could be extinguished in one of two ways: First, by the bank giving plaintiff $28,000 in money, which was not done; second, by an agreement between plaintiff and the bank that plaintiff would accept credit on the bank’s books for $28,000, instead of $28,000 in money, by way of satisfaction of the bank’s liability, and entry of the credit. There was no such agreement.
The obligation of the bank to make good plaintiff’s loss resulting from conversion of the bonds was an obligation to pay plaintiff $28,000; that is, an obligation to pay money. Except in a few jurisdictions, the rule is there is a rebuttable presumption that acceptance of something other than money does not constitute payment. The burden rests on the one asserting payment to show payment in fact, and in the absence of evidence the presumption is the original debt is not extinguished. The rule in this state was formulated by Justice Valentine in the opinion in the case of Shepard v. Allen, 16 Kan. 182 (1876):
“The weight of authority, however, would seem to be that the original debt in such a case would, prima jade, continue to exist; that the burden of proof to show that it had been paid or extinguished by the execution of promissory notes therefor would rest upon the debtor; and that if no evidence were introduced except that of the mere execution of the notes it would be presumed that the original debt still continued in force, unpaid and unextinguished.” (p. 184.)
This rule has been approved and applied many times, as any one interested may discover in a short time by using Shepard’s Kansas Citations to trace the cases.
A transaction may embrace facts which manifest mutual assent that something other than money was accepted as performance of an obligation to pay money. The case of Shepard v. Allen is illustrative. So is the case of Burdett v. Surdez, 94 Kan. 494, 146 Pac. 1025. The inference from the facts, however, is one of fact, to be drawn by the jury, or by the court when the issue is tried by the court. (Insurance Co. v. Benner, 78 Kan. 511, 97 Pac. 438.)
In this instance the facts are simple, undisputed, and to this effect: Hoffman said to Drumm, “Plaintiff wants credit for $28,000, the face value of the bonds you misappropriated.” Drumm said, “I will enter the credit.” The credit was entered on plaintiff’s pass book, and on its checking account on the books of the bank. The result was that an executory obligation of the bank to pay plaintiff’s check or checks to the amount of $28,000, when presented, was created. The principle governing such a set of facts was stated by Chief Justice Kingman in the opinion in the case of Kermeyer v. Newby, 14 Kan. 164 (1875). The case was a check case. The syllabus reads:
“The mere taking of a bank check for a debt is not a payment of the debt until cashed, nor is it an extinguishment of the contract for which it was given.”
In the opinion it was said:
“The giving of one simple executory contract for another does not extinguish the latter.” (p. 167.)
The decision in Kermeyer v. Newby has been approved many times. It was followed in the case of Mordis v. Kennedy, 23 Kan. 408, 409, which was followed in the late case of Baker-Evans Grain Co. v. Ricord, 126 Kan. 107, 111 (1928), 267 Pac. 14.
Defendants cite the case of Watkins v. Parsons, 13 Kan. 426. In that case A owed B. A drew a check on a bank in B’s favor for the amount of the debt. B received the check, presented it to the bank, and took credit for the amount of the check on his own account with the bank. When the check was presented, A had funds in the bank in an amount in excess of the amount of the check. Afterwards the bank failed. The syllabus reads:
“Where a party both receives and uses a check, the presumption is that he realizes the full amount thereof, and if thereafter he seeks to recover that amount from the drawer, it is incumbent on him to show that he did in fact fail to realize.” (Syl. ¶ 1.)
In the opinion the court said that by accepting and using the check B elected to take the bank as his debtor instead of A. In this case plaintiff did not elect to accept a third person as its debtor. The bank was debtor all the time, and whether plaintiff realized on the book credit is a matter to be presently considered.
The form of the opinion in Watkins v. Parsons was controlled by the fact there was a contention the check was fraudulently issued. Leaving fraud, bargain, or other modifying circumstances at one side, acceptance of a check for the amount of a debt does not pay the debt. If, however, the creditor presents the check for payment, the debtor has funds to meet the check, the bank pays the check and charges the amount to the account of the drawer, and the payee, instead of taking money, takes credit on his own account at the bank, the transaction does effect payment of the debt. The principle involved was applied in the case of First Church of Christ, Scientist, v. Ætna Bldg, and Loan Ass’n, 122 Kan. 672, 253 Pac. 574, cited by defendants, and in the case of Davison v. Maryland Casualty Co., 126 Kan. 365, 267 Pac. 1001, and is manifestly sound.
•The legal relations of three persons are involved: A, the debtor, B, the creditor, and the bank on which the check is drawn. The bank is a debtor of A, obligated to pay A’s checks on presentation, if A is in funds. The check is presented, A has funds to meet it, the bank accepts the check, and charges the amount to A’s account. The check is paid, becomes a dead instrument, and the obligation of the bank to pay pro tanto its debt to A is discharged. B could demand and get money. He does not do so, but takes credit on his own account. His privilege to demand money for the check is exhausted. He is willing to take the bank’s obligation to pay money, for the money itself. He elects to accept the bank as his debtor, and his election fixes the legal relations of the parties. We have no such case here.
In the opinion in the case of Bouton v. Hill, 38 N. Y. Supp. 498, cited by defendants, appears the following:
“A transfer of credit by consent of parties is equivalent to payment. (Bank v. Burkhart, 100 U. S. 686-689).” (p. 501.)
The question in Bouton v. Hill was, What would amount to a payment to toll the statute of limitation? The syllabus reads:
“In an action on a note, it appeared that it was made in 1883, with the understanding that, if the amount named in it exceeded the true indebtedness of the maker, it should be made right; that in 1890 it was found that the amount was too large, and the difference was, by direction of defendant [maker], indorsed as a payment as of the date of the note. Held, that such indorsement was, in effect, a payment at the time it was made, and removed the note from the bar of limitations.” (p. 498.)
In the opinion the court discussed the subject of what would indicate acknowledgment of liability, cited the cases showing that giving of collateral security has that'effect, and said:
“It will be seen, from the cases cited, that the reason that payment is held to remove the bar of the statute is that it is an act acknowledging liability for the whole demand, and the law implies a promise to pay what is left of it, the promise so implied dating from the time of the part payment. . . . The indorsement was not made by the plaintiff, but by a third party, with the consent, or, it may rather be said, by the instruction, of the defendant. And it was done under such circumstances as to show an acknowledgment of the balance of the note, and an intention to pay it. Her claim that she would be deprived of the benefit of the interest upon it, if it was indorsed as of that date, emphasizes her acknowledgment of the balance of the note, and of her intention to pay. The whole transaction brings it clearly within the reason of the decisions I have cited, for allowing payment to prevent the operation of the statute; . . .” (pp. 501, 503.)
In the case of National Bank v. Burkhardt, 100 U. S. 686, cited in the New York case, the question was whether, when the holder presented a check to the bank on which it was drawn, what was done amounted then and there to payment of the check and deposit by the holder, or whether the arrangement was that the check should be held until the end of the business day, to see what the state of the draper’s account might then be. The jury found the .check was offered and received as a deposit. The finding determined a question of liability on the guaranty given later in the day to secure advances by the bank to the drawer of the check thereafter to be made. In the opinion the court said:
“When a check on itself is offered to a bank as a deposit, the bank has the' option to accept or reject it, or to receive it upon such conditions as may be agreed upon. If it be rejected there is no room for any doubt or question between the parties. If, on the other hand, the cheek is offered as a deposit and received as a deposit, there being no fraud and the check genuine, the parties are no less bound and concluded than in the former case.” (p. 689.)
The result is, the New York decision, and the case cited as authority for the decision, have no bearing on the present controversy. It is not necessary to extend this opinion by further consideration of particular decisions. In this instance the bank paid nothing by entering the credit, and remained liable to plaintiff for the loss plaintiff had sustained the same as before.
Defendants contend that after the entry of credit the bank paid the amount of the loss plaintiff had sustained on account of misappropriation of the bonds. Whether this is so depends on the law of this state relating to application of payments.
When the bank opened on June 16 plaintiff had a credit balance of $32,472.24. At the close of business on June 16 the balance was $60,882.83, which included the credit of $28,000. At the close of business on June 18 the credit balance was $75,607.66. On both days there were deposits and withdrawals in the usual course of business. Defendants say the rule of application of payments, “first in, first out,” governs. If it does the $28,000 credit was exhausted before the bank failed. Plaintiff insists the rule of application of payments to unsecured items first applies. If it does the judgment of the district court was correct.
Defendants did not insure bank deposits. They did insure against loss resulting from misappropriation of the bonds. As shown above, the entry of credit on the bank’s books on June 16 was not an entry of a deposit. For all purposes of the law the situation was precisely the same as if there were a notation opposite the entry, “Unpaid loss occasioned by misappropriation of bonds.” That loss was secured by defendants’ policy, and the burden rested on defendants to show plaintiff was reimbursed by the bank.
There was no evidence that either plaintiff or the bank made application of any money withdrawn from the bank and charged to plaintiff, to discharge the bank’s liability for plaintiff’s loss. Under those circumstances the law in this state is, and for more than fifty years has been, that withdrawal of funds by plaintiff from the bank should be applied to unsecured deposits. (Shellabarger v. Binns, 18 Kan. 345; State v. Guaranty Co., 81 Kan. 660, 106 Pac. 1040; Barber County Comm’rs v. Lake State Bank, 121 Kan. 223, 246 Pac. 524 — afterwards disposed of on other grounds.)
The principle involved is that it is equitable the bank’s whole debt should be paid, and it cannot be inequitable to extinguish first those debts for which the security was most precarious. (Field v. Holland, 6 Cranch, 8.) Defendants, being sureties for hire, are not in position to complain of the effect on them of application of the rule. (Medical Co. v. Hamm, 89 Kan. 138, 145, 130 Pac. 650.)
In the case of State v. Guaranty Co., 81 Kan. 660, 106 Pac. 1040, the action was one by the state to recover on a bond given by a bank as a depositary of state funds, and signed by the guaranty company as surety. A judgment for the state was affirmed. Defendants distinguish the case on the ground the bond was given by the bank, while in this case the creditor procured the security. The distinction is without force. How payments should be 'applied depends on whether there is security, and not on who paid for the bond or policy' of indemnity. In mechanic’s lien cases a creditor procures his own security by complying with the lien law. The rule is to apply payments made by the debtor to satisfy nonlienable items first. Shellabarger v. Binns, 18 Kan. 345, was such a case, and the rule prevails in those states which have adopted the common-law rule relating to application of payments.
Defendants’ answer pleaded settlement and compromise by plaintiff of its claim against the bank. The argument in support of the defense is fully answered by what has already been said.
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The opinion of the court was delivered by
Hutchison, J.:
This is an injunction action brought by the plaintiff railway company against the public service commission and the Blue Bird Transportation Company to enjoin them from en forcing or putting into operation a certain order of the commission granting the transportation company a certificate of convenience and necessity to operate a motor bus line as a common carrier between Wichita and Kansas City and intermediate points, and to vacate, set aside and hold for naught such order issued under chapter 206 of the Laws of 1925. The trial court denied the injunction and refused, to vacate or set aside the order, and held the transportation company was entitled to a certificate of convenience and necessity, from which order the plaintiff railway company appeals.
The petition for injunction recited the proceedings before the public service commission, including the application of the bus company, the giving of the notices and the appearance and protests of the plaintiff railway company and two other railroad companies, an interurban railway company and a bus-line company. The plaintiff in its petition alleged that all the cities and towns along the proposed bus line were being supplied with adequate transportation facilities by the railroads of the plaintiff and other protestante, and that there was no public need of a bus line paralleling plaintiff’s railway line, and attached to the petition a complete transcript of all the evidence recieved on the hearing before the commission. Plaintiff challenged the legal sufficiency of the evidence for the purpose of granting a certificate of convenience and necessity, claiming and requesting a judicial review of the law and the facts and an injunction because of the insufficiency of facts.
Answers were filed by the commission and the transportation company, and after the issues were formed the trial court, over the objection of the plaintiff, proceeded to hear and try the case de novo.
The contention of the appellant is that when a transcript of all the evidence heard by the commission is attached to the petition, as in this case, the action takes the nature of an appeal from the order of the commission, and plaintiff is entitled to a judicial review in the district court where the petition was field, and failure and refusal of the trial court to so try the case was error.
Chapter 206 of the Laws of 1925 provides in section 10 that all orders of the public service commission, granting certificates of convenience and necessity to the bus lines shall become operative and effective within thirty days “unless said order is enjoined or set aside in a court of proper jurisdiction.” In section 2 of the same act it is provided that—
“All laws relating to the powers, duties, authority and jurisdiction of the public utilities commission over common carriers are hereby made applicable to all such motor carriers, except as herein otherwise specifically provided.”
Chapter 258 of the same session changed the name of the commission from public utilities commission to public service commission without in any way changing the jurisdiction or procedure theretofore had and authorized.
R. S. 66-118 provides that-r-
“Any common carrier or public utility governed by the provisions of this act, or other party in interest, being dissatisfied with any order of the commission . . . may, within thirty days from the making of such order, commence an action in a court of competent jurisdiction, against the public utilities commission as defendant, to vacate and set aside any such order, finding or decision of the public utilities commission . . . and such action shall be tried and determined as other civil actions.”
In the decision rendered in an appeal in six injunction cases against the court of industrial relations involving orders fixing rates it was said in the opinion:
“Complaint is made because the trial court considered evidence of facts and conditions arising subsequent to the date of the order. ... Was the admission of this evidence erroneous? A lawsuit over a rate order made by the commission is a trial de novo. The issue is the reasonableness of the commission’s order. Any competent evidence is admissible.” (Railroad and Light Co. v. Court of Industrial Relations, 113 Kan. 217, 233, 214 Pac. 797.)
One paragraph of the syllabus in this case is as follows:
“So long as a judicial trial de novo, not a mere appeal, is accorded to any party aggrieved by an order of the public utilities commission, the proceedings before the commission may be conducted without much regard to formality.” (Syl. ¶ 12.)
This decision was cited with approval in Elliot v. Empire Natural Gas Co., 123 Kan. 558, 256 Pac. 114.
The distinction between appellate and original jurisdiction and between cases calling for review on account of errors, or for trial de novo, is well stated in the opinion in the case of In re Burnette, 73 Kan. 609, 85 Pac. 575. (See, also, 4 C. J. 726.)
The appellant availed itself of the relief prescribed by statute to have the order set aside and to enjoin its enforcement. That proceeding was not an appeal, neither was it one for review of the former hearing, but it was an application to a judicial tribunal for a trial de novo of the rights involved in the hearing before the commission.
Appellant insists that there was absolutely no evidence to support the order of the commission in granting the certificate of convenience and necessity under chapter 206 of the Laws of 1925, which requires a showing that the present serving rail facilities are inadequate and inconvenient to the traveling public and the proposed facilities will eliminate such inadequacy and inconvenience, and cites the case of Int. Com. Comm. v. Louis. & Nash. R. R., 227 U. S. 88, where it is forcibly and logically concluded .that “a finding without evidence is beyond the power of the commission.” (p. 92.)
Appellant also cites a number of other strong cases along the same line and to the same effect, which doctrine must be fully conceded.
The difficulty in the present case lies not so much in law as in the question of whether the evidence introduced furnished any proof on these points before the commission, the contention being that regardless of the showing made in the district court upon the trial of this cause, if there had been no evidence whatever furnished in the hearing before the commission upon the essential points, the certificate would have been improperly issued and should not be enforced. Many of the same eminent authorities cited by appellant on this question also criticize severely the reliance by commissions on unsworn documents, letters and recommendations being used as evidence in the case, because the privilege and right of cross-examination is thus cut off, and for other good reasons. Counsel for appellee frankly admit that such evidence is not the best and is questionable as to its competency. The objection goes to a number of letters introduced in the hearing before the commission that were addressed to the commission, purporting to have been written by men occupying prominent business positions in Wichita and other points along the proposed bus line, commending the project and the men back of it, some of the letters referring to the inadequate facilities that existed and that the proposed line would afford transportation facilities that were needed by the public and in great demand. Our own court has taken the liberal view as to the consideration of this character of evidence by the public service commission, as expressed in the industrial court case, above cited, where it was said:
“The commission, may gather its facts in the most informal way, and may and should avail itself of all reports and data gathered by its own staff of engineei'S, statisticians and accountants-; but it is only fair that all such facts, data and reports, wheresoever gleaned, should be presented in public so that the parties to be affected by the commission’s determination may show, if they can, by cross-examination or otherwise, that such data and reports are either inaccurate, fallacious or incomplete, or not of controlling significance. In no other way can the commission itself be sure that it is doing approximate justice to those concerned. We have said that the formalities of a judicial court need not be followed, but this is really no detriment to the parties; it facilitates the development of the facts; and it is because of the free and easy procedure permissible before the commission that a trial de novo, not a mere appeal, is accorded in a judicial court from the orders of the commission. So long as a judicial hearing de novo is provided, it is not very important just what sort of evidence is received by the commission or how it is received, if the parties concerned are apprised of it.” (p. 236.),
Appellant insists that these letters constituted the sole and only pretense at proof before the commission on the essential subjects of inadequacy of existing service and facilities, that the proposed facilities will eliminate the same, and that there is a public need and demand for such additional facilities. Even if these letters should be entirely eliminated from consideration, we have remaining the condition of the country which the bus line proposes to serve with additional facilities; we have the schedules of present service by the rail lines and from these and similar facts furnished the commission in the form of unquestionably admissible and competent evidence, the commission might very properly determine these points essential to the granting of a certificate.
“The public convenience and necessity, or lack thereof, is established by proof of the conditions existing in the territory to be served, and it is the function of the commission to draw its own conclusion and form its own opinion from the proof of the conditions in the territory, rather than from the consensus of opinions of witnesses upon the ultimate fact as to the existence or nonexistence of the public necessity and convenience.” (Eager v. Pub. Util. Comm., 113 Ohio St. 605, 607.)
The evidence before the commission at the hearing aside from the letters showed the train schedules of the appellant and other railways between Wichita and Kansas City, the stations at which each particular train stopped or did not stop, the flag stops for different trains, the times of arrival and departure of the trains at each stopping point, the opportunities for making trips to larger centers and returning the same day or earlier during the day, and for the transaction of business at such centers during business hours, the population of each of the towns on the proposed route, the distances between the several towns and stations on the line, the kind of road as to its being dirt, sand, gravel or cement, and the condition of same, the proposed schedule of the bus line, with times of departure and arrival, the kind of conveyances and busses intended to be used, the names and business of the officers and directors of the bus company, their financial strength and that of the new company, the cost of bus transportation per mile and the number of calls per day at the Wichita bus terminal for interstate and for intermediate transportation during a few weeks preceding the hearing. Applying to these facts the rule stated in the Ohio decision, above cited, it cannot be said there was no evidence before the commission as to the public convenience and necessity or lack thereof along the proposed bus line, or that the certificate was issued without any evidence to support it.
The trial of this injunction suit was had on April 15, 1929, at which after the close of the plaintiff’s case the defendant introduced four witnesses residing in four different localities along the proposed line, who testified to some features of local inconvenience in going to and returning from business centers by rail and to the need of bus facilities to make such trips more conveniently and quickly, sometimes to avoid a going or returning trip in the night, or to avoid making the trip in their own automobiles. At the close of the testimony the court made findings of fact and conclusions of law.
The first eight findings were concerning the parties generally and the hearing before the commission. The ninth was as follows:
“The motor carrier route over which the Blue Bird Transportation Company proposed and proposes to operate closely parallels the railway line of the Atchison, Topeka & Santa Fe Railway Company, in that with the exception of two towns all of them are located on the lines of the Atchison, Topeka & Santa Fe Railway Company. If the order of the commission is permitted to stand the Blue Bird Transportation Company will compete with the Santa Fe at Wichita, Newton, Peabody, Florence, Cedar Point, Clements, Mmdale, Cottonwood Falls, Saffordville, Plymouth, Emporia, Eskridge, Topeka, Lawrence and Kansas City, Kan., the only exception being that the Blue Bird Transportation Company will haul no passengers from Topeka to Lawrence and Kansas City, Kan., and between Wichita and Walton and vice versa. This is an arrangement made to protect another existing bus company and the interurban company, and not the railway line.”
The next fifteen findings gave the train service of each of the fifteen towns along the line had with other towns and cities, and each of them concluded with the following sentence:
“The court finds that this constitutes adequate and sufficient train service to and from the several points involved, for a community of this size, and the trade territory tributary thereto.”
Finding No. 25 shows that these fifteen towns now served by plaintiff railway company are on the proposed bus line; also Eskridge, on a branch line of the plaintiff, and that Admire and Dover are on the bus line, but not served by the plaintiff company.
Finding No. 26 is as follows:
“The service given by the railroad company between the several points involved is sufficient for train service, but local transportation service between these points is inadequate and inconvenient in that the local train service is so arranged that it does not provide the convenient transportation service between the points for local use.”
Finding No. 27 gives an outline of the service to the different towns by the different trains by number.
The last four findings are as follows:
“The court further finds that the country through which the plaintiff operates its line of railroad and through which the bus company proposes to operate is a thickly settled farming country and the service rendered by the bus company is a different kind of transportation than that rendered by the railroad company, and that the bus company serves a local pick-up that is not covered by the railroad.
“The court finds there is a need for more adequate local transportation than is furnished by the railroad company, and that there is a demand for such transportation as is furnished by the bus company in the country, towns and villages along the route used by it.
“The towns covered by the bus company and railroad company from Wichita to Emporia have no other direct means of reaching the towns of Admire, Eskridge and Dover except by the operation of the bus company.
“The court further finds that upon the hearing before the commission the commission had before it evidence of the population of the towns through which the railroad and the bus company operated. Also the character of the service that was already being furnished by the railroad company, and that under such evidence the order issued by the board was not unreasonable and was sufficient to justify the commission in issuing the certificate to the Blue Bird Transportation Company, and the court further finds that said Blue Bird Transportation Company is able to carry out the schedules proposed or ordered by the public service commission.”
These findings bring the case within the generally accepted meaning of necessity, not an absolute need nor a need of few individuals, but a need of the public as well as a convenience of the public.
“The word 'necessity’ means a public need, without which the public is inconvenienced to the extent of being handicapped in the pursuit of business or wholesome pleasure or both — without which the people generally of the community are denied, to their detriment, that which is enjoyed by other people generally, similarly situated.” (Chicago, R. I. & P. Ry. Co. v. State, 126 Okla. 48, syl. ¶ 1.)
This does not mean that the rail service as such is in any way inadequate as the trial court found, but an adequate rail service may not and cannot always afford an adequate general transportation service.
Under the court’s finding, additional rail facilities by causing other trains to stop at small towns or by putting.on additional trains to meet the general transportation need and convenience under present conditions would not and could not be required; neither would the granting of a certificate of convenience and necessity to another parallel and competing railroad be reasonable, necessary or proper. Convenience and necessity consist largely in the changing conditions and the demands of the times, the same as there arose years ago for railroad facilities as against existing canal and river transportation facilities.
We have no difficulty in finding sufficient evidence to fully support the findings of the trial court in general and also the one where the finding of the commission is so supported and approved, and we concur with the trial court in the conclusions of law justifying the commission in the issuance of the certificates of convenience and necessity.
“In the granting or withholding of certificates of convenience no justiciable question touching confiscation of property or impairment of vested rights can well arise. Time and again this court, in consonance- with the prevailing attitude of courts throughout the country, has declared that it will not substitute its judgment for that of some administrative tribunal created by legislative authority for dealing with matters of nonjudicial character.” (Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 468, 251 Pac. 1097.)
We conclude there was no error in refusing to modify or set aside certain findings of fact, nor in denying the injunction.
The. judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted as a persistent violator of maintaining a liquor nuisance, and appeals.
The information contained six counts. All but the first and sixth were dismissed before trial. The first count charged that on or about October 16,1929, defendant kept liquor in his possession. The sixth count charged that on or about October 16, 1929, defendant maintained a place where liquor was kept for sale. The court instructed the jury that if they believed defendant had intoxicating liquor in his possession they should find him guilty on the first count, otherwise they should acquit him; and if they believed defendant maintained a place where liquor was kept for sale they should find him guilty on the sixth count, otherwise they should acquit him. The jury returned a single verdict finding defendant guilty as charged in the sixth count.
There was evidence for the state which authorized the jury to believe defendant was in possession of intoxicating liquor (first count), maintained a place where intoxicating liquor was kept for sale (sixth count), and was in the act of concluding a sale of intoxicating liquor in his possession in the place when he was arrested.
The officers found at defendant’s home a gallon can of alcohol, a gallon can three-quarters full of alcohol, and a pint bottle full of alcohol. Defendant was equipped with bottles of proper form, size and color, corks, bottle caps, seal covers, labels and wrappers, whereby, with some coloring matter, beverage flavors, and raw alcohol, he could furnish customers with—
“Gordon and Company’s Dry Gin, distilled and bottled in London, England, by Gordon Dry Gin Company, Ltd.;
“White Horse Scotch Whisky, pure and genuine. County analysts laboratory, 138 Bath street, Glasgow. January 3, 1921;
“Long John Scotch Whisky, Special Reserve Scotch Whisky. Long John Distillers, Ltd., Glasgow, Scotland.
“Haig & Haig,” “Sandy McDonald,” “Grand Old Par Scotch Whisky,” “Old Frankfort Bourbon, Distillery No. 33, 7th district, Frankfort, Kentucky”; and other brands of liquor.
Defendant furnished some testimony having an appearance of genuineness about equal to that of his brands of liquor, which, if accepted as genuine, would authorize a verdict of not guilty.
Defendant contends that failure of the jury to find him guilty of unlawful possession of liquor, as charged in the first count, amounted to an acquittal of having unlawful possession of liquor; that because of such acquittal all evidence relating to possession of liquor must be disregarded in considering whether conviction on the sixth count was sustained by evidence; and that, disregarding the evidence of possession, there was no substantial evidence to sustain conviction on the sixth count.
For the purpose of the decision it may be conceded that a finding of possession of liquor was essential to conviction on the sixth count, and if defendant did not in fact have liquor in his possession, he was not guilty as charged in the sixth count. It may also be conceded that, since the jury did not find defendant either guilty or not guilty on the first count, he was acquitted on that count. There remains the question, What consequences follow from acquittal on the first count?
In his opinion in the case of Burgess v. Boetefeur, 7 M. & G. 481 (1844), Chief Justice Tindal said, “The word ‘acquittal’ is verbum cequivocum.” The meaning of the word is not confined to judgment in favor of defendant after trial on the merits (Junction City v. Keeffe, 40 Kan. 275, 279, 19 Pac. 735), and a defendant may be “acquitted” without the question of guilt or innocence having been submitted to a jury at all. Thus in the case of State v. Dewey, 73 Kan. 735, 85 Pac. 796, 88 Pac. 881, this court held that discharge of a person held under indictment or information, who was not brought to trial within the time limit provided by the criminal code, amounted to an acquittal of the offense charged.
Defendant bases his contention 'on the decision in the case of State v. McNaught, 36 Kan. 624, 14 Pac. 277, followed in the case of State v. Wood, 49 Kan. 711, 31 Pac. 786. The first paragraph of the syllabus in the McNaught case, which was a liquor case, reads:
“A verdict of guilty on one count in a criminal complaint, saying nothing as to other counts, is equivalent to a verdict of not guilty as to such other counts.”
The question at once intrudes, “equivalent to a verdict of not guilty” to what extent? The question is answered in the second paragraph of the syllabus, which reads:
“And where such a verdict has been rendered, and the defendant procures a new trial, he can be tried at the new trial only for the offense charged in the count upon which he was found guilty at the former trial.”
In the opinion in the McNaught case appears the following:
“Of course the jury ought to make a finding with respect to each separate count, for in all cases like this each separate count charges a separate and distinct offense. [Citation.] But when the verdict of the jury is silent as to some one or more of the counts and contains a finding of guilty as to the other counts, it must be presumed that the jury intended to find as to the counts concerning which the verdict is silent, that the defendant was not guilty. Such, we think, is the universal belief in practice.” (p. 627.)
The opinion does not indicate whether this presumption of not guilty is a presumption of law or a presumption of fact. The opinion states that the information was one charging in four separate counts four distinct offenses, no one of which had any connection with the other. Therefore the court did not consider application of the presumption to a case like this one — a verdict silent as to possession as charged in the first count, but finding that defendant did have liquor in his possession at a place where he kept it for sale, as charged in the sixth count. In such a situation it would be quite incongruous to indulge a presumption of fact contrary to the jury’s finding of fact, and it would be quite arbitrary to indulge a presumption of law in disregard of the jury’s finding of fact.
The court sensed some difficulty in applying generally a presumption that the jury intended to find the defendant not guilty in fact when it made no finding one way or the other and said:
“But whatever may have been the actual intention of the two juries that tried this case at the first two trials, it necessarily follows from § 10 of the bill of rights of the constitution that the defendant could not again be tried after such two trials. That section provides, among other things, as follows: ‘No person shall ... be twice put in jeopardy for the same offense.’” (p. 627.)
In this instance there has been but one trial, and the appeal is from conviction on the sixth count. If the state had pursued or were seeking to pursue defendant in some way on the first count, and the question were before the court, it would be proper to say, in accordance with the decision in the McNaught case, that defendant was acquitted on that count. It would also be proper to say that the law regards him as entitled to the same .immunity he would enjoy if the jury had returned a verdict finding him not guilty. We have no such case before us. We know what the jury actually did. The action of the jury regarding the first count is not before the court for review, and the court declines to speculate on what the jury intended, and declines to resort to any presumption concerning what the jury intended, when it left the question of guilt or innocence of the charge contained in the first count undetermined by verdict one way or the other. Turning to the subject of the appeal, conviction on the sixth count, we are not- concerned with what the jury'did about the first count, and the verdict finding defendant guilty on the sixth count was amply sustained by the evidence.
The defendant can be in no better situation than he would be if the jury had returned a verdict of not guilty on the first count, and had also returned a verdict of guilty on the sixth count. That being true, defendant merely presents in a new and subtle way the old subject of inconsistency of verdict.
The contention here is that “acquittal” on the first count established the fact that defendant did not have intoxicating liquor in his possession; that takes the subject of possession out of the case for all purposes; and when the record is examined for evidence of possession to sustain conviction on the sixth count, the mass of convincing evidence establishing possession may not be considered. In principle the precise contention was made in the case of State v. Turner, 63 Kan. 714, 66 Pac. 1008. Turner sold a beverage at the place where he kept the beverage for sale. He was charged in two counts of an information with sales of intoxicating liquor, and in a third count with maintaining a place where intoxicating liquor was kept for sale. He freely admitted he made the sales charged.
The defense was that what he sold was not intoxicating. The jury found him guilty on the third count, and as in the McNaught case, returned no verdict on the other counts. On appeal, division No. 1 of this court held the conviction could not be sustained. In the opinion it was said:
“As before stated, the question tried was whether the liquor sold was intoxicating. The jury having necessarily found that it was not, by their acquittal of the defendant on the charge of selling, it is difficult to understand how a conviction resulted under the nuisance clause of the statute when there was no more or different evidence to support that charge than there was to sustain the accusation of making illegal sales.” (p. 716.)
Defendant cites this decision as authority for his contention. If the question to be tried had been possession of intoxicating liquor instead of intoxicating character of the liquor, the case would have been identical in all essential respects with this one. The decision fully supports defendant’s contention, and it would be authority for his contention but for the fact that the court, sitting in banc, expressly overruled it in the case of State v. Stewart, 120 Kan. 516, 243 Pac. 1057.
Defendant undertakes to distinguish such cases as State v. Brizendine, 114 Kan. 699, 220 Pac. 174, on the ground that in the Brizendine case there was some evidence to sustain the conviction aside from that relating to the counts on which defendant was acquitted. The decision was not based on that ground. The second paragraph of the syllabus reads:
“The appellants were charged in separate counts of an information with manufacturing intoxicating liquor, having intoxicating liquor in their possession, and maintaining a place where intoxicating liquor was manufactured and kept for unlawful purposes. They were acquitted of manufacture and possession, and found guilty of maintenance only. Conceding maintenance of the place necessarily involved manufacture and possession, the verdict of guilty was not vitiated by the verdict of acquittal.”
Likewise, in the case of State v. Brundige, 114 Kan. 849, 220 Pac. 1039, the syllabus reads:
“Where the evidence shows that if the defendant was guilty of either larceny or burglary he was guilty of both he cannot on appeal effectively complain of the inconsistency of the jury in convicting him of burglary and acquitting him of larceny.” (¶ 6.)
It is not necessary to pursue the subject further. All the evidence in the record tending to sustain conviction on the sixth count is before this court for consideration, just as it was before the jury for its consideration, and that evidence is just as potent now as it was when the jury concluded to do nothing about the first count.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is a quo warranto proceeding brought by the state challenging the right of Omer D. Smith to hold the office and exercise the functions of city judge of the city of Salina. It appears that Salina is a city of the first class, and that defendant was appointed as city judge by the governing body of that city in pursuance of the authority of R. S. 20-1401 to 20-1423, as amended by chapter 179 of the Laws of 1927, and a city ordinance. The act, R. S. 20-1401 to 20-1423, is a general one providing that whenever it is made to appear to the satisfaction of the governing body of a city of the first class that there is need for the establishment of city courts in such city for the administration of justice it may by ordinance establish a city court under the act, and that the mayor by and with the consent of the city commission or city council may appoint a city judge, clerk and marshal of a city court. The court is given jurisdiction in civil cases for the recovery of money to the amount of $1,000 and for the recovery of specific personal property up to the value of $500. In all other respects the city court is given jurisdiction of civil and criminal cases with the jurisdiction of justices of the peace, and with the powers and duties of justices of the peace, and that the laws relating to pleading, practice'and proceedings in justice court not in conflict with the act, are made applicable to the city court. There is a further provision that a justice of the peace in the city shall have no jurisdiction in civil or criminal cases except civil cases for the recovery of money only where the amount claimed, exclusive of cost, does not exceed one dollar. (R. S. 20-1403.) The act provides that the one appointed as city judge shall be a resident of the city, an attorney at law, duly admitted to the bar, and that he shall hold his office to the next city election and until his successor is elected and qualified, and that while holding that office he shall not practice law in any of the courts of the state. The regular term of the city judge is fixed at two years, the salary of the judge is also fixed and provision is made for changes of venue, and for appeals to the district court. (R. S. 20-1402.) Other provisions are made for serving process, the collection and disposition of fees and some other matters not material to the present controversy.
The plaintiff contends that the act under which the appointment was made is an unconstitutional attempt to delegate legislative power, that it violates section 17 of article 2 of the constitution, requiring all laws to be of uniform operation throughout the state, and that no special law shall be enacted where a general one can be made applicable. The statute was enacted in 1923 (R. S. 20-1401 to 20-1423), and the first section of the act was amended in 1927. (Laws 1927, ch. 179.) It reads:
“That general section 20-1401 of the Revised Statutes of Kansas for 1923 be amended to read as follows: Sec. 20-1401. Whenever it is made to appear to the satisfaction of the governing body of any city of the first class or any city of the second class with more than 13,900 population, that there is need for the establishment of a city court in such city for the administration of justice, such governing body may establish a city court in such city, by ordinance of such city, and the mayor of such city, by and with the consent of such city commission or city council, shall appoint a judge of such city court, a clerk of such city court, and a marshal of such city court.” (Sec. 1.)
The law as amended is general in form and is made applicable to all first-cláss cities of the state, and to all second-class cities attaining a population of 13,900. It covers all cities of the state of the classes mentioned and provides for city courts, all with the same jurisdiction, the same procedure and the same official organization. Instead of being special legislation, it is of a general nature, is uniform in its operation upon all cities of a certain class throughout the state, and was manifestly enacted to get rid of the numerous demands upon the legislature to provide for special city courts in particular cities. It has been said that—
“Whenever a law of a general nature is passed by the legislature for the whole state, and is not applied by the legislature to any particular locality thereof, and has no words prohibiting its operation in any particular locality, it is a law having uniform operation throughout the state within the meaning of said constitutional provision, although it may not practically have operation in every part of the state.” (Noffzigger v. McAllister, 12 Kan. 315, 321.)
The objection most pressed in argument is that it is an unwarranted delegation of legislative power, in that it leaves to the governing body of a city to determine when there is need for the establishment of a city court in any city provided for by the act. It is argued that it was the function of the legislature to determine the need of a court in a city, a matter within its discretion, and being a legislative function the power could not be delegated to the governing body of the city or any other officers or persons. It will be ob served that the act came from the legislature in due form, complete in itself, providing in detail as to jurisdiction, procedure, officers and their duties. There is nothing in the act which purports to give the governing body of the city power to add to, take from or to modify the provisions of the act. The legislature simply provided that when a certain condition is found to exist in any city of the class named the act comes into operation. Upon the happening of a specified contingency, a fact to be found by a local agency, the act is to take effect in that city. It has been frequently held that when a formal and complete act is fairly within the legislative power and provides that it shall become operative upon the happening of a specified contingency, like the one in question, it cannot be regarded as a delegation of legislative power. In addition to Noffzigger v. McAllister, supra, there is Phœnix Ins. Co. v. Welch, 29 Kan. 672, where an act provided that in a certain contingency higher burdens were to be imposed on a foreign insurance company. The contingency was defined by the legislature, which prescribed the rule for fixing such higher burdens, and it was decided:
“While the legislative power of the state is by the constitution vested in the legislature, yet that body has authority to pass a law whose operation is by its terms made to depend upon a contingency, even though that contingency be some action on the part of the legislature of another state.”
In State, ex rel., v. Hunter, 38 Kan. 578, 17 Pac. 177, the court in considering a statute providing for police government of cities, and that police commissioners and other officers should be appointed by the executive council upon the petition of 200 householders or when the executive council deemed it advisable, and it was contended that the act was invalid on the ground that it was a delegation of legislative power, said:
“The validity of laws, the operation of which is made to depend upon the occurrence of some future event or contingency, certain or uncertain, cannot well be doubted. That contingency may be the vote or petition by a certain number of people to be affected by the law, or some expression or act of their representatives or agents, or it may arise upon the act or will of some third person. Indeed, an infinite variety and number of events or contingencies might be named that the legislature might adopt.” (p. 585.)
In City of Emporia v. Smith, 42 Kan. 433, 22 Pac. 616, the legislature had enacted the statute conferring upon cities the power to extend their boundaries, acting through the officers of the city and the judge of the district court. It was urged that such powers could only be conferred on tribunals transacting county business, and it was decided that—
“The power given to the legislature by section 21 of article 2 of the constitution, to confer on the tribunals transacting county business such powers of local legislation and administration as it may deem expedient, is not exclusive, but such powers can be conferred on other local agencies.”
In State v. Butler County, 77 Kan. 527, 530, 94 Pac. 1004, where there was a claim that an act was invalid because legislative power was delegated to one-fourth of the voters of the county, who signed a petition upon which provisions of the law would become operative in the county, it was said:
“The petition was not necessary to make the law. It was only necessary to give the board authority to act under the law. A statute is no less a law because its taking effect is made to depend upon some subsequent event. (Cooley’s Con. Lim., 7th ed., 164.) In this respect the law is analogous to a great variety of laws, the validity of which has been upheld.” (Citing a number of authorities.)
In Cole v. Dorr, 80 Kan. 251, 101 Pac. 1016, where the validity of an act was challenged on the ground that its application was left to depend upon a vote of the electors and was therefore an attempt to delegate legislative powers and was invalid, the act was upheld and it was said:
“Even in jurisdictions where it was held that the taking effect of a statute cannot be made to depend upon the result of a popular vote the principle is recognized that ‘if an act in question is complete in itself, and requires nothing further to give it validity as a legislative act, it is not vulnerable to attack upon constitutional grounds simply because the limits of its operation are made to depend upon a vote of the people.’ ” (p. 253.)
In Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80, an act was under consideration which gave the charter board authority to act upon applications for the organization of banks and to determine the public necessity in the community for a bank, and if it determined unfavorably to the application a charter might be refused. The law was held to be valid. In the opinion it was said that—
“The statute belongs to the well-known class in which the legislature prescribes a rule to be applied according to the existence or nonexistence of some fact which the officer or hoard called upon to administer the law is required to ascertain. The question for the charter board in any case arising under this law is, Are the banking facilities of the community adequate to the public needs? This question is to be determined, like any other question of fact, from a consideration of the conditions existing in the community concerned.” (p. 610.)
A similar question was raised upon the statute creating the entomological commission with authority in the commissioners to inspect orchards, and if San José scale or other injurious insect, pest or plant diseases were found to exist the commissioners were authorized to proceed under the statute to destroy orchards at the expense of the owner. The objection that legislative power had been conferred on the commission wherein they were authorized to find a fact, that is, the existence of San José scale, and if found to apply and enforce the provisions of the statute respecting it, was answered by a decision that the statute is not invalid because it delegates to the commission the power to declare the existence of conditions which» call into operation the provisions of the statute. (Batch v. Glenn, 85 Kan. 735, 119 Pac. 67.) The validity of a statute, having for its purpose the preservation of public health and the prevention of dissemination of dangerous communicable diseases, was challenged because the state board of health was given authority to designate such diseases as are infectious or communicable, to make rules and regulations pursuant to the statute and to provide for the treatment of diseases; but it was held that the statute could not be regarded as unconstitutional on the ground that it delegated legislative power. (In re McGee, 105 Kan. 574, 185 Pac. 14. See, also, Smith v. Atchison County, 81 Kan. 91, 105 Pac. 37; Railroad Co. v. Leavenworth County, 89 Kan. 72, 130 Pac. 855; Barber County v. Bank Commissioner, 113 Kan. 180, 213 Pac. 1054; 12 C. J. 864, 865.)
The statute in question falls clearly within the rule of the decisions cited, and cannot be held to be a delegation of legislative power to the governing body of the city. The contingency under which the act was to become operative in a city -was defined by the legislature; that is, a finding and declaration of the governing body that there is need for the establishment of a city court for the administration of justice within the city. These officers elected by the people may be assumed to be well qualified to determine whether or not such a need exists. The declaration of a finding made is required in the act to be embodied in an ordinance. It might have been provided for through a resolution or a motion passed or other official declaration. The ordinance passed was a sufficient record of the finding of the commission and is no more a delegation of legislative power than if the finding had been declared by a method other than by ordinance.
It is contended that the city court was not created by law, but was created by a city ordinance, and is therefore a violation of section 1 of article 3 of the state constitution'. It reads:
“The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts, inferior to the supreme court, as may be provided by law; and all courts of record shall have a seal to be used in the authentication of all process.”
The city court is a judicial body and comes fairly with'in the class of those courts not specially mentioned in the constitution, but which may be provided by law. As already appears, these city courts have been provided for in the act itself. All things relating to jurisdiction, procedure, officers, terms of office, salaries, places of holding court, expenses of court, taxation of fees and costs, changes of venue, pro tern, judges, the filling of vacancies, and many other details, leave nothing to be provided for by city ordinance so far as the creation of the courts is concerned. In the act itself it is stated that the courts are established under the authority of the law and not by ordinance, and recites: “The court hereby established shall under the limitations and restrictions herein provided have original jurisdiction,” etc. (R. S. 20-1403.) The creation of courts authorized by law under the constitutional provisions has been considered in Matthews v. Comm’rs of Shawnee Co., 34 Kan. 606, 9 Pac. 765, and Morris v. Bunyan, 58 Kan. 210, 48 Pac. 864, and under the authorities it must be held that the city court was created by law and not by ordinance.
There is a further contention that the act violates section 9 of article 3 of the constitution, which provides that there shall be two justices of the peace in each township “whose powers and duties shall be prescribed by law.” It is argued that so much of the jurisdiction of justices of the peace is conferred on city courts as to be a practical abolition-of them. The constitution does not attempt to declare the jurisdiction of justices of the peace, but in terms provides that it shall be prescribed by law. Under that specific authority the legislature has prescribed the jurisdiction of justices of the peace, within cities in which city courts are established. It has limited their powers and duties to a great extent, but it has not abolished the office. It has been expressly held that an act providing such a limitation does not render it unconstitutional. (In re Greer, 58 Kan. 268, 48 Pac. 950; Chesney v. McClintock, 61 Kan. 94, 58 Pac. 993.)
One other objection to the act is raised by the plaintiff, namely, that the city judge is a judicial officer, and under the constitution an appointment to the office must be made by the governor. As we have seen, the act provides that the appointment shall be made by the governing body of the city. The statute provides that when the court is established, the judge shall be appointed by the mayor and city commission or mayor and city council, whichever is in control, and that the appointee shall hold his office until the next city election or until a successor is elected and qualified, and when elected, he shall hold the office for a term of two years. (R. S. 20-1402, 20-1522.) It is contended that the appointment provided for in the act is a violation of section 11 of article 3 of the constitution, which reads as follows:
“All judicial officers provided for by this article shall be elected at the first election under this constitution, and shall reside in their respective townships, counties or districts during their respective terms of office. In case of vacancy in any judicial office, it shall be filled by appointment of the governor until the next regular election that shall occur more than thirty days after such vacancy shall have happened.”
Is a city judge, not mentioned in the constitution, but one to be created by law, within the meaning of the provision that vacancies in the office shall be filled by the governor? The provisions relating to the appointment by the governor to fill vacancies are those provided for in that article, and not some that may thereafter be created by law. The section opens with the declaration that “All the judicial officers provided for by this article shall be elected,” etc., followed by the provisions relating to the filling of vacancies. It applies to the officers named in the article, but does not cover those thereafter created by law. That was the view» taken by this court in Matthews v. Comm’rs of Shawnee Co., supra, in which it was said:
“Under the constitution the legislature has the power to create new courts, inferior to the supreme court, but what their jurisdiction or the tenure of the office of the judges shall be, or how the judges shall be selected or chosen, is not prescribed by the constitution.” (p. 609.)
Farther along in the.opinion it was said:
“Indeed, courts may be created by statute in a great variety of ways and courts so created are not courts provided for by the constitution, but are simply such other courts inferior to the supreme court as may be provided by law. (Cons. Art. 3, Sec. 1.) Only such courts as are specifically mentioned in the constitution are courts provided for by the constitution.” (p. 609.)
It was competent for the legislature to provide for the appointment of judicial officers not provided for in article 3, which fall in the class of courts inferior to the supreme court, as might be provided by the legislature. In section 19 of article 2 of the constitution there is a provision that—
“The legislature, . . . shall have the power to provide for the election or appointment of all officers and the filling of all vacancies not otherwise provided for in this constitution.”
In accordance with the legislative direction, the defendant was duly appointed city judge and is now in the exercise of the functions of his office.
The writ is denied. | [
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The opinion of the court was delivered by
Harvey, J.:
Emmitt Byrd was charged in Morton county with the larceny of a cow, the property of Wade Benton. He was tried and found guilty. He has appealed, and contends: (1) that the evidence is insufficient to sustain the verdict; (2) that the venue of the crime was not proved, as alleged; (3) that the court erred in refusing requested instructions, and in the instructions given.
The facts disclosed by the record may be stated as follows: Emmitt Byrd lived at Hugoton, in Stevens county. He did some farming, but his principal business was buying and selling cattle and other live stock. Perhaps half a mile from the railway stockyards at Hugoton he had his own private stockyards, consisting of several pens, a building for hay, grain, etc., where he received and fed live stock, purchased in the country about, until sold or shipped. He sometimes received live stock at the railway stockyards. He appears to have borne a good reputation.' It was not infrequent for persons from whom he had bought live stock to deliver them at his own or the railway stockyards and leave them, if he was not there— and sometimes he was not — and later settle with him for them. In some of his transactions he operated with C. L. Nix, a farmer who lived twelve miles east of Hugoton, and who, in the fall or winter, dealt in live stock. Sometimes he and Nix would buy together, or would buy separately and ship together. While Byrd’s principal place of business was at Hugoton, he sometimes shipped from, or received cattle at, the stockyards at Rolla, a station in Morton county eighteen miles west of Hugoton. Wade Benton was a farmer who lived about six miles east of Richfield, in Morton county (perhaps twenty-five miles west of Hugoton). He had formerly been a butcher, and in the winter time bought and shipped cattle and hogs-, and was engaged in that business in November, 1927. His shipments were usually made from Rolla. He and Byrd had been acquainted for several years. In 1925 they had difficulty over some stock, but that appears to have been adjusted, and thereafter they frequently met at stock sales and sometimes traded in live stock with each other. On Thursday, November 17, 1927, Benton was receiving cattle and hogs at the stockyards at Rolla for shipment the next day. Among the stock received were five cows which he had bought from Kenneth Earle, who lived in Texas county, Oklahoma. Earle drove these cows to Rolla and delivered them to Benton at the stockyards there soon after noon, and received pay for them. One of these was a four-year-old yellow Jersey cow with dark markings, dehorned, but the stubs had grown out, one of them longer than the other, with a crop and slit in the right ear. Earle had raised this cow, and when she was a two-year-old had split her tongue for about two or three inches to prevent her sucking. She was a dry cow, but would be fresh about the middle of January. Benton received other cattle and hogs at Rolla that day. Byrd was at Rolla the same day and received three head of cattle which he had purchased and were delivered to him at the stockyards there. One of these was a fat Holstein heifer. Benton saw Byrd at the restaurant at noon. They visited about their live stock, and were together at the stockyards in the afternoon. Benton offered to trade the four-year-old yellow Jersey cow for the Holstein heifer, but no trade was made. Byrd had with him a four-wheeled trailer used to haul live stock, which he pulled with a Ford car. Both Byrd and Benton went to the country that afternoon, but were together again at the stockyards about five o’clock in the evening, at which time Byrd loaded his three head of cattle in the trailer and started for Hugoton. Benton went about looking after his live stock, and the next morning loaded his car for shipment. At that time he missed this four-year-old yellow Jersey dry cow. Benton did not know what had become of her. At some time in the afternoon of the 17th he had showed her to a neighbor, Mr. Auls, who was not fully decided about buying her. On Saturday evening, the 19th, Benton met Auls and, assuming that he had made up his mind to buy the cow and had taken her intending to pay for her, suggested settlement. But Auls stated that he did not get the cow.
L. C. Rickert, with his team, had been working for the railroad company widening the grade near Hugoton and was camped in the stockyards at Hugoton. When he fed his team about five o’clock the evening of November 17 he noticed that there were no cattle in the stockyards. When he did his feeding the next morning about eight o’clock he saw a yellow Jersey cow with dark markings in the stockyards. The cow stayed there without anyone paying any attention to her, apparently, until the next afternoon, which was Saturday, the 19th, when Rickert met Byrd on the street at Hugoton and asked Byrd if that was his cow in the railway stockyards. Byrd said he didn’t know, that some one might have brought her in for him. Rickert told him the cow had been there since Friday morning without anything to eat or drink, and Byrd stated that he would look after her. About ten o’clock that evening, in company with Mack Greenwood, who was at Byrd’s yards dealing with him about some cattle, Byrd took some feed to the cow in the railway stockyards. On Sunday morning, November 20, Byrd and Nix shipped two carloads of cattle from the Hugoton yards. They were taken there about 9:30 in the morning to be loaded in time for the eleven o’clock train. There were eighty-one or eighty-two head of cattle in the shipment. This cow was in the stockyards at that time, but was not loaded or shipped. Nix accompanied this shipment to Kansas City and did not return to Hugoton until a week later. On the day the shipment was made Byrd took this cow which had been in the stockyards, also a calf which he or Nix did not want to ship, to his own private stockyards.
On Sunday, November 20, Benton went to Hugoton and drove by Byrd’s stockyards and saw a cow in the yards which he thought was the cow he had bought from Earle, and which he missed on Friday morning from the stockyards at Rolla. He went to the sheriff of Stevens county, Mr. Jones, and he and the sheriff drove by Byrd’s yards and saw the cow. Jones suggested he had better get better identification, and Benton drove to Oklahoma and got Earle and brought him to Hugoton, and they and the sheriff again looked at the cow in Byrd’s stockyards. Earle was positive it was the cow he had sold to Benton and delivered to Rolla on Thursday, November 17. This examination was made about four o’clock Sunday afternoon. Benton took Earle back to his home in Oklahoma. On Monday Benton consulted a neighbor, B. B. Long, of Rolla, also Charles H. Drew, a substantial farmer and live-stock man, who lived near and whose family, for school purposes, was living in Hugoton for the winter. He also consulted the county attorney and sheriff of Morton county, and on Monday evening, in company with Charlie Bentley, a deputy sheriff of Morton county, and Drew and Jones, wient to Hugoton, arriving there about nine or ten o’clock in the evening. They drove by Byrd’s stockyards, looked in-one of them with a flashlight, but did not see the cow. They stayed in Hugoton that night, conferred with sheriff Jones, and early Tuesday morning went to Byrd’s stockyards. He was not there. In the yard were some hogs and part of the carcass of a cow, also part of a carcass of a horse, which had been mostly eaten by the hogs. The cow had been skinned. The head had been removed, and near where the cow’s head should be was the head of the horse. Some witnesses said it was fitted close to the cow, as though placed there by human hands. Other witnesses said it was several feet away. One hind quarter of the cow had been removed and one front quarter. Benton and those with him went to town for breakfast, but returned to Byrd’s yards about eight o’clock. At this time Byrd was there, cleaning up about his yards. He had his trailer in the yard and was loading that with manure, straw, etc., to be hauled away. Benton opened the conversation with Byrd by saying: “Hello, Emmitt, what are you doing?” Byrd replied: “I guess I’m stealing cattle; that’s what they say I’m doing.” Jones then said he had brought the men down there to talk to him. -Benton then asked Byrd where his cow was that was in the lot there Sunday. Byrd said he didn’t know — that he would like to know where two or three of his were. Byrd was asked about the carcass of the cow in the lot. He said it was that of a lump-jaw cow he had bought of Pearce (or a Pearce cow). He was asked why he did not ship her, and he said she had died, had got sick when they were taking the cattle to the stockyards, and that he had to bring her back. He w'as asked what was the matter with her, and he said she got foundered on corn; that some man had brought him a load of corn and in scooping it in the granary several bushels were spilled on the ground. One stomach of the cow in the carcass was examined and found to contain no corn. Byrd then said she must have got foundered on water. He was asked where the other two quarters of the cow were. He said he had taken one of them to his chicken lot and had also taken the other stomach, which was full of corn, to the chickens. Some of the officers went to his chicken lot a few blocks away and there found the one quarter of the cow, but did not find the stomach. That was later found in his trailer covered with manure and straw. It was opened and no corn was found in it. He was asked about the other quarter and the hide. Byrd said Nix had an interest in the cow with him and had helped to skin her, and he wasn’t sure what was done with the hide, perhaps it was thrown over in the hog chute; that Nix had taken the other quarter home and might have taken the hide. The officers called Nix’s residence by telephone. Mrs. Nix said no hide or meat had been brought there. The other quarter was found the next day hanging to the rafters in one of the buildings at Byrd’s stockyards. The hide was found under a pile of corn in a granary of his yard. The hide, when found, was that of a yellow Jersey cow with dark markings, and where it had been cut away from near the hoofs in the skinning the notches made by the knife fitted with those still on the hoofs. The head of the cow had been skinned, and near the center of the forehead was a hole, as though made by a bullet. Byrd was asked about the head, and said that he had thrown it over the railway fence and poisoned it to kill dogs that had been bothering. A few days later the head was found perhaps half a mile from Byrd’s stockyards on the prairie, where some junk had been thrown. The split tongue was still in the head, and near the center of the forehead was a hole as though made by a bullet. In short, the investigation disclosed clearly that the cow, the carcass of which was in Byrd’s stockyards, was that of the cow sold by Earle to Benton and delivered to him at the stockyards at Rolla November 17. The identification was so thorough and complete that it is not now questioned. It was also quite clear that the animal had been shot and killed, and that Byrd had dismembered the carcass and tried to secrete portions of it. Many of the statements he made to the officers, only some of which have been noted, were demonstrated to be false.
On Tuesday, November 22, L. C. Rickert observed, at a place near the railway stockyards at Hugoton, the tracks of a trailer, and near that a place on the ground where a cow had been pushed out and slipped on the ground. The car and trailer tracks were clearly visible. He examined them; it was a four-wheeled trailer and appeared to have two new tires on the rear and two smooth-tread tires in front. He examined the treads of the new tires and compared them with the tires on Byrd’s trailer. That had two smooth tires in front and two new tires in the rear. The marks in the track compared with the tread on these new tires and were the same. Later, but before the trial, Byrd, in talking with Rickert, said he understood Rickert had seen the person bring the cow to the stockyards. Rickert told him, no, he didn’t see the cow brought there, but he did see the tracks of the trailer, and asked Byrd if some one had his trailer that night. Byrd said if anyone had it he didn’t know it.
The evidence disclosed that after Byrd left the stockyards at Rolla, about five o’clock Thursday evening, November 17, he ate supper at a restaurant at Hugoton and visited with two persons there about seven o’clock in the evening. About ten o’clock, or later, that evening Ralph Haight, a farmer who lived in the country, called Byrd by telephone at his residence in Hugoton and talked with him. On that day Nix had been threshing, and after supper he went to town to see Byrd about their shipping cattle: His son was with him. They drove directly to B3^rd’s residence, but did not find him, although a light in the house was burning. They went up town and looked for Byrd about the streets and in various places, but did not find him, and went back to his house, where they found the light still burning, but no one was there.- They then drove home, reaching home at ten o’clock in the evening.
In the above summary of the evidence it has not been possible, of course, to give all the details. While argued under the headings as stated early in this opinion, appellant’s real contention may be stated thus: There is no evidence in the record as to how this cow got out of the stockyards at Rolla and into the railway stockyards at Hugoton, or who took her out of the Rolla stockyards, or drove or transported her to Hugoton; and if it can be said that the evidence establishes that after the cow was in Byrd’s stockyards at Hugoton she was shot in the head and killed, and that Byrd dismembered the body and secreted various parts of it, these facts would not establish that Byrd stole the cow from the stockyards at Rolla, in Morton county.
The court gave a well-worded instruction on the inference of guilt of larceny which the jury might draw from the recent unexplained possession of stolen property. Appellant complains of this instruction and argues that it is only the recent unexplained posséssion of stolen property from which guilt of larceny.may be inferred, citing State v. McKinney, 76 Kan. 419, 91 Pac. 1068; and it is argued that while Byrd himself did not take the witness stand and give any explanation of his possession of the cow, the evidence as to how he got possession of the cow was produced by the state when it was shown by the testimony of Rickert that the cow was in the railway stockyards at Hugoton from Friday morning until Saturday evening, with no one, apparently, paying any attention to her, Rickert’s telling Byrd on Saturday afternoon of the cow’s being there. That testimony was, of course, a circumstance favorable to defendant, but it was competent to show defendant’s possession of the cow, the circumstances, so far as the state knew them, of how he obtained possession, and the evidence as to what Byrd did with the cow when she was in his possession, and all of the facts and circumstances disclosed by the evidence in connection therewith. In this connection appellant complains of the testimony of Rickert with respect to the tracks of the trailer near the stockyards, and points out that these were not observed by Rickert until the Tuesday after the disappearance of the cow Thursday night, and argues that, at most, a trailer similar to Byrd’s trailer had been there at the stockyards at some time recently before the Tuesday when the tracks were found, and that a cow brute of some kind had been unloaded from it. It is true the evidence is remote as to time, but it was competent, and its weight was for the jury. In view of the disposition made of the cow by defendant, and of all the other facts shown, we think it was proper for the court to give the instruction just referred to. (State v. Rice, 93 Kan. 589, 144 Pac. 1016; State v. Bell, 109 Kan. 767, 201 Pac. 1110; State v. Schaefer, 111 Kan. 153, 204 Pac. 765.) The instruction being proper, there is no lack of evidence to sustain the verdict. This also disposes of the second question raised by appellant, namely, that the venue was not established, for, if the evidence was sufficient to sustain the verdict of larceny, and it was disclosed that the larceny occurred in Morton county, that also establishes the venue to be in Morton county. (See State v. Shanahan, 114 Kan. 212, 217 Pac. 309.)
In view of the defendant’s statements to the officers that Nix and he owned the cow together, that Nix had helped skin her, and had done something with the hide and with a quarter of the meat, and of the testimony tending to show that defendant’s trailer delivered the cow to the railway stockyards at Hugoton — without evidence as to who was in charge of the trailer at that time — and in view of the other facts and circumstances disclosed by the evidence, the court gave instructions embodying the law as to an accessory to a felony before the fact (R. S. 62-1016), which instructions followed quite closely and, so far as they are pertinent, those given in State v. Wolkow, 110 Kan. 722, 205 Pac. 639. Appellant complains of these instructions on the ground that there was no evidence in the case which would justify the submission of instructions of this character to the jury. This contention cannot be sustained. While the evidence on this branch of the case is not so voluminous as it is in some cases, from the statement of the evidence above made it is clear that there was evidence which authorized the giving of these instructions.
Finding no error in the record, 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 by respondent in a proceeding for habeas corpus brought for the custody of a child. The petitioner is the mother and respondent is the father of the child in question. The point presented is that of the domicile of the child, and appellant’s complaint is that the trial court followed the decree of the court of another state, deeming itself bound by such decree, instead of trying out the issue presented by the pleadings, among which was that of the domicile of the child.
The facts disclosed by the record pertinent to our present inquiry may be thus stated; Thomas 0. Wear and Juanita C. Wear were husband and wife, and the parents of Thomas 0. Wear, Jr., a boy now about eight years of age. They had lived at various places in Oklahoma and Missouri when the husband had work, and in the months early in 1929 were living in Oklahoma City. Some time in April, 1929, Thomas 0. Wear took his personal effects, and leaving his wife, child and household goods in Oklahoma City, came to the home of his brother-in-law and sister, Mr. and Mrs. Ralph L. Coleman, with whom his parents resided, near Lawrence, in Douglas county, Kansas. In June, 1929, Mrs. Wear sent the boy to Lawrence, Kan.; the father met the boy there and took him to the home where he was staying. The circumstances and understanding, if any, of the boy’s coming to Kansas enter into the question- of his domicile and will be later discussed.
In July, 1929, Mrs. Wear brought, in the district court at Oklahoma City, a divorce suit against her husband, on the ground of gross neglect of duty, in which she asked for the custody of the child in question. The defendant, Thomas 0. Wear, appeared in that case, and on August 1, 1929, filed an application for an order restraining the plaintiff from molesting or interfering with the custody of the child pending the action, setting out that plaintiff was seeking to obtain such custody, and averred that the domestic difficulties between the parties were the fault of plaintiff, and that plaintiff was not a fit and proper person to have the custody of the child, all of which defendant would show at the hearing of the action on its merits. The restraining order was granted ex parte. When plaintiff learned of this she moved that it be set aside, and upon the hearing of that motion, August 3, it was set aside. Defendant later, on August 19, filed a general demurrer to plaintiff’s petition. This came on for hearing August 22, was overruled and held to be frivolous, and on defendant’s request he was given time to answer. On August 23 he filed an answer in which he denied generally the grounds for divorce charged against him in plaintiff’s petition, and at some length set out his claims with respect to their domestic troubles, and particularly denied and explained the charge of nonsupport made against him. As to how the child came to be with him the answer stated, “that on or about the said 5th day of June, 1929, this defendant paid the railroad fare for his said child, Thomas Orville Wear, Jr., to visit him and said child’s grandparents, at Independence [perhaps Lawrence was meant], Kan. . . .” The prayer was that' plaintiff take nothing by reason of her petition and that defendant have such relief as in law and equity he was found entitled to receive. The action was tried on its merits September 14, 1929, both parties appearing in person and by their respective counsel. The court heard the evidence, found defendant had been guilty of gross neglect of duty, and that plaintiff was without fault, and granted to her a divorce. The court also found plaintiff to be a ñt and proper person to have the custody of the child, Thomas O. Wear, Jr., and awarded such custody to her. The court further found that “about June 5, 1929, the plaintiff sent Thomas O. Wear, Jr., to Lawrence, Kan., for a visit with his grandparents, the father and mother of the defendant, with the agreement that said minor child would be returned to Oklahoma City in time for the school term commencing in September, 1929,” and “that at the time of the institution of this suit said minor child was a resident of Oklahoma county, Oklahoma, and that this court has-jurisdiction of the person of said minor child.” And the court “ordered that the defendant, Thomas O. Wear, shall return said minor child, Thomas O. Wear, Jr., to the jurisdiction of this court within ten days from this date and deliver said child over to the plaintiff, Juanita C. Wear.”
The child was not actually present in Oklahoma at the time the divorce suit was brought there, nor at the time the judgment and decree was rendered in that case; in fact, he was not in Oklahoma at any time after about June 5, 1929. .Thomas 0. Wear did not comply with the order of the Oklahoma court that he return the child to the jurisdiction of that court and deliver him to the plaintiff in that action, but he did return to the home of his brother-in-law near Lawrence, Kan.
On September 21, 1929, Juanita C. Wear filed in the district court of Douglas county her petition for a writ of habea°s corpus, in which she alleged that she resides at Oklahoma City; that she is the mother, and Thomas 0. Wear the father, of the child in question ; that she had the care and custody of the child in the state of Oklahoma; that on June 5, 1929, she permitted the child to go to Lawrence, Kan., for the purpose of visiting its father and grandmother and other relatives in Douglas county, Kansas, but with the specific understanding that the child was to be returned to Oklahoma City about September 1, 1929, so that he might enter school, and “that the child is not now and never was a resident of or domiciled in the state of Kansas, but was in the state of Kansas temporarily' and for the purpose of a visit as hereinbefore alleged.” She also pleaded the divorce action and set out a copy of the decree of the Oklahoma court in that case as an adjudication of her right to the custody of the child. She named as respondents Ralph L. Coleman and Thomas 0. Wear. Coleman filed a response in which he denied he was restraining the^ child of his liberty, and alleged that both Thomas 0. Wear and Thomas 0. Wear, Jr., were living at his home, and further than that he had nothing to do with the child and had no possession or control over him, for which reason it would not be possible for him to bring the child into court. Thomas 0. Wear, as respondent, filed a return in which he alleged that he is the father of Thomas 0. Wear, Jr.; that since April, 1929, he has been a.resident of and domiciled in Douglas county, Kansas; that he has in his possession and under his care the child in question and is furnishing him a good home and has him in school; that the petitioner is an unfit person to have the custody of the child; denied that the child was a resident of or domiciled in Oklahoma, and alleged that the child is a resident of and domiciled with him in Kansas; that if the Oklahoma court made the order and judgment and decree as alleged in plaintiff’s petition that the same are void for the reason that the court had no jurisdiction over the person of the child, nor to decree that the plaintiff in that case is a fit person to have the custody of such child, and that the findings, decree and judgment of the court touching such matters are void for the lack of jurisdiction; denied that he entered into an agreement to keep the child in Kansas temporarily and return him to Oklahoma ; alleged that it was for the best interests of the child that he remain with respondent, and admitted that plaintiff had sued him for divorce in Oklahoma. The prayer was that the writ be denied, that the court award the custody of the child to respondent, or some other person resident of the county whom the court might select as a proper person to care for and rear the child, and for such further orders as would be for the best interests of the child.
The proceeding appears to have been heard by the court on plaintiff’s petition of the writ and the returns of the respondents. The petitioner, to support the issues on her part, introduced in evidence the record of the action for divorce in Oklahoma, including the pleading and all findings, orders and judgments, and rested. The pertinent portions of these have been stated and need not be repeated.
The respondent, Thomas 0. Wear, testified, in substance:
“J am the respondent in this case. The petitioner was my wife prior to the' time of the divorce. The child in question is the only child of the petitioner and this respondent. I came to Douglas county from Oklahoma April 11, 1929, and went to the home of Ralph Coleman, who is my sister’s husband, My father and mother live in the same home. I came with the intention of making this county my permanent home, brought all my personal belongings, left nothing in Oklahoma, and have resided here ever since.”
He was asked the state of his health at the time he came to Kansas, but an objection to that question was sustained. He further testified:
“I met the boy at the train June 5. He came alone and has been with me ever since.”
The respondent, Ralph L. Coleman, testified:
“Reside in this county — born and reared here. Mr. Wear lives in my home, as also the little boy and the father and mother of Mr. Wear. Mr. Wear came to my home April 11, 1929, and brought all his personal effects. The boy came June 5 — came alone. 'Mr. Wear met him at the train. Mr. Wear and the boy have been in my home ever since they came up. I know how it happened that the boy came.”
It does not appear from the abstract that he was asked to testify as to how it happened that the boy came. This is all the evidence shown by the abstract to have been offered by respondents.
In allowing the writ the court did not make findings of fact, not being requested to do so, nor prepare a formal opinion, but did make a statement embodying the facts as the court treated them and giving reasons, with the citation of some authorities, for its ruling. This statement of the court appears to have been taken by the stenographer, and it is relied upon to some extent by both parties in this court. For that reason we set it out practically in full.
“This is an application for a writ of habeas corpus, ... It is docketed here as Wear against Wear, and from what I say later on, I am inclined to think that is a pretty proper method of docketing this kind of a case.
“Juanita C. Wear is a resident of Oklahoma. She filed an action for divorce there I think in July of this year. She probably got service by publication upon her husband. In any event her husband appeared in the district court of Oklahoma county, Oklahoma, and contested her right to relief. He appeared both in person and by attorney. Along in April sometime, of this year, her husband, I think, left Oklahoma. He came up to Douglas county and took up his residence here. A child of these parties was in Douglas county at the time that the matter between his mother and father was ad judicated in Oklahoma. Among other things that the plaintiff asked for in that divorce suit was the custody of the child. The child was not in Oklahoma at the time of adjudication by the court, but was in Douglas county, Kansas.
“The question arises largely as to what force and effect should be given the decree of the Oklahoma courts so far as the custody of this child is concerned.
“It is contended on the part of Mrs. Wear that the matter is res ad judicata. It is contended on the part of the father, Thomas 0. Wear, that the court in Oklahoma had no jurisdiction to determine who should have the custody of this child for the reason that the child was a resident and domiciled in Douglas county, Kansas, and for that reason the court was without jurisdiction.
“Full force and effect is given to divorce decrees which are granted in the various states in other states. There is abundant authority to the effect that where a child is out of the state in which the decree is granted and there is publication service upon the defendant who has the apparent custody of the child at the time at least of the adjudication in regard to the possession of the child, such decree is not binding upon the defendant in the state in which the child was.
“It would seem to me where matters are submitted to a court of competent jurisdiction for determination and certain matters are litigated, that is conclusive as to the matter over which the court had jurisdiction.
“Now, the Oklahoma court had jurisdiction in this divorce case to determine whether or not Juanita C. Wear was entitled to a divorce from Thomas Wear. It had jurisdiction to award property between them and had jurisdiction to make interlocutory orders in regard to matters connected with the divorce suit, and it had jurisdiction to determine the custody of the child, and it had the same general jurisdiction that a district court of this state would have, which is a general jurisdiction both in law and equity.
“If there had been no appearance by Thomas Wear in Oklahoma, then there could be no adjudication which would bind him so far as the custody of this child was concerned in Oklahoma.
“I know, we all know how this character of litigation [habeas corpus] originated. Its purpose was to inquire into the reason in a legal manner as to the restraint of some person of his liberty. The sheriff has possession of an individual. He says he is unlawfully restrained of his liberty and he makes the application .for the writ and asks to have the right of the sheriff to hold him inquired into.
“The writ has been amplified, use of it has and the purpose of it, so as to make it proper both under the statute and under the rules of the courts to make the writ a proper vehicle by which to inquire into the question of which of two persons shall have the right of custody of an individual. The Hamilton case in 66 Kansas [754] is quite enlightening, I think. The syllabus reads, you are all familiar with it but I am going to read it anyway. ‘In a proceeding in habeas corpus where a controversy arises over the custody of a child, the real issue is one between private parties contesting a question of private right, in which there arises no question of personal liberty.’ In that case is quoted with approval the case of State v. Bechdel [37 Minn. 360] . . . The syllabus in that case says: ‘Former adjudication on question of right to custody of infant child, brought up on habeas corpus, may be pleaded as res adjudícala, and is conclusive upon the same parties, upon the same state of facts. Such a case is really one of private parties contesting private rights under the form of proceedings on habeas corpus, and is distinguishable from one in which the writ is sued out on behalf of a-person unlawfully restrained of his liberty.’
“The principal claim of the respondent in this case is that the Oklahoma court had no jurisdiction by reason of the fact that the child was a resident and domiciled in Kansas. The child isn’t a chattel. The child doesn’t take on the character of real estate, as suggested in both the cases just cited and others, as far as that is concerned.
“The contest, if we are allowed to call it that, and I think we are, is one between two parties for a determination of that question by a court of competent jurisdiction. I think a solution of the situation is quoted in the 20 A. L. R. [815], which cites a Tennessee case [Kenner v. Kenner, 139 Tenn. 211, 700], which is reported in the L. R. A. 1918E, [587] ... In that case a woman was a resident of Tennessee. She took a child begot by her and her husband down in Alabama and stayed down there. Eventually she got a divorce from her husband. The service was by publication. Later she came back to Tennessee and brought the child with her. Her husband instituted habeas corpus proceedings in Tennessee to obtain the custody of the child, and it was denied him on the ground that he was precluded by an Alabama decree which had awarded the custody of the child to the mother. The court held that the Alabama court had jurisdiction to award custody of the child who was present with the mother in that state, even upon the assumption that the Tennessee domicile of the father remained that of the child. I haven’t read that opinion. This is an excerpt from it.
“Now, in this case, the Oklahoma, court had jurisdiction of everything before it. -By that I mean it had jurisdiction to determine any question which arose in regard to the custody of the child. One of the things which could have been raised in the Oklahoma court was the question of whether or not a child who was at the time in Kansas could be made the subject of a court so far as its custody was concerned in Oklahoma. If that question were controverted it was proper for litigation in that court — for determination in that court.
“I don’t believe that the presence of the child in Oklahoma was necessary to a determination of the question of its custody in that divorpe case. It is undoubtedly true, it is the law of this state and other states too, that the question of what is best for the child and who shall have the custody of it is a matter which is open at all times. That has its limitations, however, and that is when the matter is once inquired into by a court of competent jurisdiction, there will be no further inquiry unless there is a change of situation.
“You can readily see if people had four or five children, and had them in four or five jurisdictions, that what I say in regard to the power of each court to determine the custody of the child in that particular jurisdiction would lead to endless litigation.
“But the courts of the various states have power at any time to inquire as to who shall have the custody of the child.
“Now, I have recapitulated a little bit. I am satisfied that the court in Oklahoma had power to award the custody of this minor child; that it was awarded to Juanita Wear; that in the absence of any changed condition that there may be she would be entitled to the possession of that child by reason of that decree.
“The writ says she is an unsatisfactory person to have the child; that the court was without jurisdiction to inquire into the matter. I don’t know if there is any allegation that there is any changed condition since this decree was granted, but I think whether the answer or writ states that or not it is a proper matter to inquire into.
“I will leave the matter in this way for a moment at least, that if there is no claim of any changed condition since this decree was entered, then the writ should be allowed. Now if there is some claim of a changed condition, it is a matter that the court will inquire into at this time.
“I think the child came up here along in the spring, sometime at least before July 19, when the [divorce] action was filed.”
The journal entry recites that “the court . . . finds that the decree and order” of the Oklahoma court in the divorce action “is final and conclusive at this time and the controversy in this action is res judicata. Whereupon counsel for respondents, in open court, states that no change in circumstances has occurred since the date of the above-mentioned decree. Thereupon the court finds that said writ as prayed for should be allowed.” The court entered judgment allowing the writ and adjudged that the respondent Ralph L. Coleman have judgment for his costs and “go hence without day.”
The respondent Thomas O. Wear has appealed. His contention, broadly stated, is that the Oklahoma court had no jurisdiction to award the custody of the child to the plaintiff in that action, the child being in fact in Kansas, and, as appellant contends, domiciled in Kansas, and that the trial court in this case, with no evidence but the record of the Oklahoma court, had nothing upon which to base its order granting the writ.
The decision of the court below in the present case, as shown by the statement of the court at the time judgment was rendered, is predicated primarily upon the theory that a habeas corpus proceeding between parents for the custody of their children is in effect an action between those parties to determine their respective rights to such custody, citing In re Hamilton, 66 Kan. 754, 71 Pac. 817; Kenner v. Kenner, 139 Tenn. 211, 700, and allied cases collected in the notes 20 A. L. R. 815. One of the leading cases dealing with that phase of the question is People, ex rel. Allen, v. Allen, 40 Hun (N. Y.) 611. In that case the husband and wife and children had lived in Illinois, where the wife brought suit for divorce. The husband was personally served with summons, appeared by an attorney, and -answered. Later the husband was adjudged to be in contempt for failure to comply with an order requiring him to pay alimony and for taking and removing the children out of the state in violation of the terms of the previous order of the court. On the trial of the case plaintiff’s evidence was received, but evidence on behalf of defendant was excluded on the ground that he was in contempt. Judgment was rendered granting plaintiff a divorce, finding she was a proper person to have the custody of the children, and that defendant was unfit to have such custody, and giving the custody of the children to the plaintiff. The husband having removed the children to the state of New York, the wife went to that state and brought proceedings in habeas corpus for the custody of the children. It was held: That as between the husband and wife the question as to the fitness and competency of the mother to have the care and control of the children was conclusively established by the judgment of the court of Illinois and could not be again examined in the courts of this state. That the question was binding upon the children only for the time being, and that as soon as the circumstances of the custodian changed, or other circumstances arose which would make it for the best interests of the children that there should be a change, it would be the duty of the court in which the decree was originally made, or any other court having jurisdiction, to make such change. That upon the facts shown to exist in this case the report of the referee in awarding the custody and control of the children to the mother should be affirmed. In the opinion it was said:
“In the case under consideration, the question is narrowed to a contest between the father and the mother for the possession of the children. They are of that age that they cannot choose for themselves. The father was a party to the divorce action, duly served with summons, and had an opportunity to defend. Instead he had violated the decree of the court, was adjudged guilty of a contempt, and thereby forfeited his right to defend the action. The decree, nevertheless, is binding upon him, and had the same force and effect as if he had defended. It was adjudged upon the issues raised by the pleadings in the action that he is an unfit and improper person to have the custody and control of the children. That judgment is binding upon him, and full faith and credit must be given to it. He surreptitiously, and without the consent of the mother, removed the children from that state into this state. If the judgment of the Illinois court is not binding upon him, the judgment of this court would not be in any other state of the Union. If, therefore, he should again surreptitiously remove the children to another state, she might again be compelled to litigate the same question in any state to which he saw fit to remove them. Such a rule would be unreasonable and unjust, and we think ought not to prevail.” (p. 621.)
We note the court disapproved In re Bort, 25 Kan. 308, which we shall mention later. Other cases applying the same principle, each on its own facts, are, Power v. Power, 65 N. J. E. 93 (reversed on other grounds, 66 N. J. E. 320); State v. Rhoades, 29 Wash. 61; Stetson v. Stetson, 80 Me. 483; Hamilton v. Anderson, 176 Ark. 76.
But the cases and the text writers citing People, ex rel. Allen, v. Allen, supra, as a leading authority on the point above mentioned, appear to have overlooked the disposition of the appeal in that case by the New York court of appeals (People, ex rel. Allen, v. Allen, 105 N. Y. 628), which places the decision on an entirely different basis than that for which it is commonly used as an authority. The appeal was disposed of as follows:
“We dismiss this appeal for the reason that the courts below, upon a view of all the existing facts relating to the welfare and interest of the infants, exercised their discretion in awarding to the mother the custody of the children ; and, in so doing, gave to the Illinois decree not the force of an estoppel, or the conclusive effect sometimes due to a judgment, but simply regarded it as a fact or circumstance bearing upon the discretion to be exercised without dictating or controlling it.”
This view was followed in People, ex. rel. Pruyne, v. Walts, 122 N. Y. 238, where a testamentary guardian, by habeas corpus, sought the custody of a seven-year-old girl who, for reasons affecting her health and welfare, had been placed in the custody of persons by the child’s mother. Respecting the use of the writ in such cases it was said in the opinion:
“The common-law writ of habeas corpus was a writ in behalf of liberty, and its purpose was to deliver a prisoner from unjust imprisonment and illegal and improper restraint. It was not a proceeding calculated to try the rights of parents and guardians to the custody of infant children. It was of frequent use, however, when children were detained from their parents or guardians on the ground that absence from legal custody was equivalent to illegal restraint and imprisonment. In the case of children of the ago of discretion the object of the writ was usually accomplished by allowing the party restrained the exercise of his volition, but in the case of an infant of an age to be incapable of determining what was best for itself the court or officer made the determination for it, and, in so doing, the child’s welfare was the chief end in view. (Rex v. Delaval, 3 Burr. 1435; In re Waldron, 13 Johns. 418; People, ex rel. Barry, v. Mercein, 8 Paige 47, 25 Wend. 73; People, ex rel. Wilcox, v. Wilcox, 22 Barb. 178; Wilcox v. Wilcox, 14 N. Y. 575; People, ex rel. Whele, v. Weissenbach, 60 N. Y. 385; Hurd on Habeas Corpus, chap. 9.) The purpose of the writ as now regulated by the code is the same. (Code Civ. Pro. §§ 2015, 2031.) The court is bound to respect the legal rights of the parent or guardian, and their rights cannot be overthrown by the mere wishes of the child. But the jurisdiction to be exercised by the court or officer is equitable in its character, and the welfare of the child is the chief object to be attained, and must be the guide for the judgment of the court.” (p. 241.)
The holding of the New York court of appeals is in harmony with a long line of decisions in Massachusetts, beginning with Woodworth v. Spring, 4 Allen 321 (1862), including Glass v. Glass, 260 Mass. 562 (1927), and accords with In re Alderman, 157 N. C. 507, which cites In re Bort, 25 Kan. 308, as “a leading authority,” and also accords with Commonwealth v. Daven, 148 Atl. 524 (Pa.), decided January 6, 1930. In that case the husband and wife were residents of North Carolina. They had separated and he, being tubercular, was living in a sanitarium. Their two children, boys four and six years of age, were living with their mother. In the spring of 1927, at the instance of the father, the children were brought before the juvenile court on a charge that they were neglected and that the mother, by reason of immoral conduct, was unfit to have their custody. After several hearings, at which the mother appeared personally and by counsel, the judge of the juvenile court made a written order placing the children in a home where children are kept and cared for, “there to remain until the further orders of this court,” giving the parents the privilege of seeing the children on specified occasions. The order then recited that the court stated to the mother its reluctance to make any decision separating a mother from her children, and hoped that the status of the mother would be so changed in the future as to enable -a different disposition of the case. Disregarding the order of the juvenile court, the mother took the children and went to Philadelphia, where she had relatives, and with whom she and the children made their home. Some months later a representative of the juvenile court went to Philadelphia and brought habeas corpus in the municipal court for their custody, relying upon the decree of the North Carolina court, and obtained an order for their custody, which was appealed from. The court said:
“We think, however, the municipal court fell into error in refusing to hear evidence as to present conditions or pass upon the merits of the case when heard before it. Orders fixing the custody of children are temporary in their nature and always subject to modification to meet changed conditions. In the instant case it was expressly so made. . . . The controlling question is the welfare of the child at the time of the rehearing before the court and not at some former time. Here the real question before the municipal court was the proper custody of the children living in Philadelphia in 1928; on that question all relevant evidence was admissible.” (pp. 525, 526.)
After referring to the decision of the court in In re Alderman, supra, where the court refused to recognize a decree made in Florida for the custody of a child, and other authorities, it was further stated:
“In our opinion, the true view of the question is that, where the custody of a child has been passed upon by the proper court in one jurisdiction, who has heard the case and made an adjudication incorporating therein certain findings of fact, the facts so found should, as to the parties participating therein, be treated as established and not open to question in another jurisdiction. . . . Upon those facts and any others that may be presented, the court, where the matter is again brought up, must determine the ultimate question of the best interests of the child. Whether the same conclusion should be reached, even on the same facts, depends on the judgment of the court rehearing the case.” (p. 527.)
The judgment of the court below was reversed with directions to rehear the case upon its merits and make such disposition thereof as would promote the future welfare of the children in question.
Appellant stresses the question of the domicile of the child and argues that since he, the father of the child, was a resident of and domiciled in Kansas, and the child was with him in Kansas, that the Oklahoma court had no jurisdiction to make any valid order for the custody of the child. The American Law Institute, a body of jurists and legal scholars, in the restatement of the law of conflict of laws, gives the rule as follows (§ 124):
“A state can exercise through its courts jurisdiction to determine the custody of children or create the status of guardian of the person only if the domicile of the person placed under custody or guardianship is within the state.”
This statement may be illustrated by the following cases: In Lanning v. Gregory, 100 Tex. 310, a husband and wife resided in Texas. They had been married about six years and had a child, a boy, about four years old. Difficulties arose between them and they agreed to live separate and apart. The husband took the boy and went to the home of his sister in Louisiana. He had a parol agreement with his wife that she could see the boy when she wanted to, and when she wanted him he would bring the boy back to her. Thereafter the wife brought a suit in Texas for divorce. The service on her husband was by publication. He made no appearance in the case. She obtained a decree of divorce by default. In her petition she had asked for the custody of the child, but withdrew that request at the trial, and no order was made by the court as to the custody of the child. Later the wife married a second husband and moved to Kentucky. Some seven years later she and her second husband were visiting in Dallas, Tex., and learned that her son, with some of his Louisiana relatives, was visiting at Dallas. At the mother’s request the child was left with her overnight, to be returned the next morning. Instead of returning the child she and her husband started to take him away and were overtaken at Sulphur Springs, Tex., where the,child was taken from the mother by the child’s father, who had been notified. The mother then brought habeas corpus. The trial court gave the mother the custody of the child for twelve years. On appeal to the circuit court of appeals the court propounded three law questions to the supreme courta The first was whether the domicile of the child followed that of his father and was such domicile thereby changed from Texas to Louisiana. The supreme court answered that question in the affirmative and said that even the agreement between the father and the child did not have the effect of emancipating the child, and that its domicile was in law with the father. The second question was whether the order of the trial court awarding the custody of the child to the mother until he become twelve years of age changed the status of the child. The court answered that in the affirmative. The third question was, if the child’s domicile at the time of the bringing of the habeas corpus proceeding was in Louisiana, did the district court in Texas have jurisdiction to hear and determine between the father and mother which should have the custody of the child? As to that the court answered in the negative and held that the child, being in,the lawful custody of the father, its domicile was in Louisiana, and that the district court of Texas, in the habeas corpus proceeding, did not acquire jurisdiction of the child by reason of its temporary presence in the state of Texas, and that the court had no authority to adjudge a change of relation between the father and the child.
In Kline v. Kline, 57 Ia. 386, it was held:
“A decree of divorce rendered in the state of Wisconsin, on service by publication, so far as it attempted to fix the custody of the minor children who were then residents of the state of Iowa, is without jurisdiction and void.”
There the father and mother lived in Wisconsin. They separated and the wife moved to Iowa, taking with her the two children. Thereafter the husband procured a divorce in Wisconsin on service by publication. There was no notice to the wife. The decree in the divorce case awarded the custody of the children to the father. Some five years later the husband, still a resident of Wisconsin, brought habeas corpus proceedings in Iowa against the mother, who had remarried, for the custody of the children. There was a showing that the children were well provided for and had a good home with the mother. The husband argued that the domicile of the father was the domicile of the children, and therefore that the Wisconsin court had jurisdiction notwithstanding the fact that the children were with the mother in Iowa and that full faith and credit must be given to the divorce decree. But it was held that though this was the general rule it is subject to exceptions in proceedings for divorce where the law recognized the husband and wife as having separate domiciles, and that a valid divorce decree may be rendered in the state where only one of the parties resides. Suit for divorce in its nature makes the husband and wife opposing parties, and the legal fiction of the unity of person and of domicile by reason of the marriage is destroyed by the law which authorizes divorce; therefore the Wisconsin court had jurisdiction to declare the status of the parties and grant the divorce, but that the decree in excess of that was void for want of jurisdiction; and where the minors are nonresidents of the state where the divorce proceedings are had the court acquires no jurisdiction of their custody simply because the decree can have no extraterritorial force or effect, citing Woodworth v. Spring, 4 Allen, 321 (Mass.), in which it was held:
"Every sovereignty exercises the right of determining the status or condition of persons found within its jurisdiction. The laws of a foreign state cannot be permitted to intervene to affect the personal rights or privileges even of their own citizens, while they are residing on the territory and within the jurisdiction of an independent government. . . . The question whether a person within the jurisdiction of a state can be removed therefrom depends not on the laws of the place whence he came or in which he may have his legal domicile but on his rights and obligations as they are fixed and determined by the laws of the state or country in which he is found.” (p. 323.)
The opinion further proceeds :
"The authorities which we have cited even go farther than this and in effect hold that if there was jurisdiction to award the custody and control of the children of the marriage to one of the parties, by reason of the children being at the time within the jurisdiction of the court, yet that such decree is without force in a foreign jurisdiction to which the children may be afterwards removed.”
In Duryea v. Duryea, 46 Ida. 512, the husband and wife were living in Nevada. The husband took the children and went to Idaho. About four years later the wife learned where the children were, went to Idaho and attempted forcibly to remove them. The husband resisted these efforts and while the wife was there brought suit against her for divorce. Pending the action the court placed the custody of the children in a third party. Soon thereafter the wife, having returned to Nevada, caused a warrant to be issued for her husband’s arrest on the charge of wife desertion, and, over his opposition, he was extradited to Nevada. The criminal charge was later dismissed, but while the husband was confined in jail in Nevada he was served with process in an action for divorce and the custody of the children brought by the wife in that state. The husband resisted that action, setting forth that the children were not within the jurisdiction of the Nevada court and actually were in the custody of a court of Idaho. The Nevada court granted the wife a divorce and awarded her the custody of the children. The husband refused to surrender them. The wife then went to Idaho and brought habeas corpus for- their custody, relying on the Nevada decree. At the hearing of that proceeding the court received evidence bearing on the fitness of the respective parties to have the custody of the children, and permitted that evidence to extend over a wide range. At the conclusion of the hearing the husband was given the custody of the children, the order specifying as a condition that they be kept at the home of a third party and not removed from the jurisdiction of the court. The opinion noticed the fact that—
“Questions relating to the respect to be accorded, extraterritorially, to decrees awarding custody of children have arisen chiefly in two classes of cases. In most instances the parents, or at least one of them, and the children, "were before the court making the decree. In this class of cases some few courts have refused to be bound by a foreign decree, holding tha? as soon as the child comes within its jurisdiction the question of its status becomes one for the local court to determine in the best interests of the child. (In re Alderman, 157 N. C. 507, 73 S. E. 126, 39 L. R. A., n.s., 988.)
“The rule that may be denominated the majority rule, however, in this class of cases, recognizes the conclusiveness of the foreign decree and holds that it may be enforced extraterritorially, providing no change has taken place in the circumstances which would warrant a reopening of the matter. This rule affords exactly the same recognition to a decree of a foreign court that would be accorded to an adjudication within the forum, for it is well established that a decree awarding custody may be modified or changed by the court making it as the circumstances may warrant.
“The second class of cases involves facts similar to those in the case at bar, wherein an attempt has been made to decree the custody of children not •within the jurisdiction of the court. In this class of cases it is almost uniformly held that such a decree need be accorded no extraterritorial recognition.
“This holding is supported by principle as well as by authority. In all cases involving divorce and the custody of children, the court has before it for consideration a status, or more properly a double status. Minor, in his Conflict of Laws (1901), p. 208, says of a proceeding of this kind:
“ ‘Being nothing less than a determination of the guardianship of the children, it is a question of double status, relating no less to the status of the children than to that of the respective parents. The decree for the children’s custody therefore is as much a decree in rent as is the divorce itself, but with a more extended res.’
“To the same effect is 2 Bishop on Marriage and Divorce, sec. 1189 [p. 189].
“It is elementary that each state may determine the status of its own citizens. (Milner v. Gatlin, supra.) The law that governs the status of any individual is the law of his legal situs, that is, the law of his domicile. (Minor, supra, p. 131.) At least this jurisdictional fact — dominion over the legal situs— must be present before a court can presume to adjudicate a status, and in cases involving the custody of children it is usually essential that their actual situs as well be within the jurisdiction of the court before its decree will be accorded extraterritorial recognition. . . .
“But it may be urged that a decree in a foreign state, though not binding on nonresident children, is binding on the parents if they appear and subject themselves to its jurisdiction. Such a contention ignores the nature of status and particularly of status as applied to infant children. ‘The status of an individual, used in a legal sense, is the legal relation in which that individual stands to the rest of the community.’ ” (pp. 516, 521.)
The court further considered the question of domicile and held that was in Idaho with the father.
Other authorities on this point are: Weber v. Redding, 163 N. E. 269 (Ind.); Harris v. Harris, 115 N. C. 587; Rigney v. Rigney, 127 N. Y. 408; People v. Hickey, 8.6 Ill. App. 20; Vetterlein, Petitioner, 14 R. I. 378; Griffin v. Griffin, 95 Ore. 78; 2 Cooley’s Const. Lim. 8th ed., p. 856; Wharton on Conflict of Laws, 3d ed., § 239f.
Appellant stresses the domicile of the child being with him in Kansas more than the record of the case warrants. It is true, of course, that a child of tender years lacks capacity to establish a domicile of choice. When the members of the family are living together the husband and father determines and establishes the domicile of choice, not only for himself, but for his wife and children, neither of whom has a domicile apart from his; but when the wife, without fault on her part, is compelled to live separate and apart from her husband, she then has capacity to determine and establish a domicile of her own (American Law Institute, Conflict of Laws, § 30). For example, if a husband and wife are domiciled at a place X, and the husband deserts his wife and goes to a place Y, where he establishes his'domicile, and the wife continues to reside at X, that place remains her domicile. When the parents are living separate and apart from each other each has capacity to have a separate domicile. The domicile of a minor child of the parties is that of the one of them with whom it lives, or who, by a competent court, has been given its custody. In this case the appellant, his wife and child resided in Oklahoma City, which was their domicile. He took his personal belongings and left, not with the thought of changing the place of residence or domicile of his family, but with the obvious intent and purpose of separating from his wife. He left •the wife and child at their domicile in Oklahoma, with such home as he had furnished them, the household goods and their personal belongings. He took nothing with him but his own personal belongings. The result was that the domicile of his wife and child continued to be in Oklahoma City. Now if the child came, or was sent by its mother, to Kansas on a visit, that fact did not change the domicile of the child. A child does not lose his or her domicile by being sent on a visit by its parents, or the one of its parents in whose custody it rightfully is.
A matter, although not referred to in the briefs, should be considered as having bearing upon the force which should be given by the courts of this state to a decree of divorce rendered in another state. In 1906 the supreme court of the United States decided the case of Haddock v. Haddock, 201 U. S. 562, in which it was held, among other things, and under the facts stated, that the courts of one state were not, by virtue of the full faith and credit clause of the federal constitution, required to give full force and effect to a decree of divorce rendered in another state on constructive service only. At its first session after this decision our legislature enacted a statute (R. S. 60-1518) which reads as follows:
“Any judgment or decree of divorce rendered upon service by publication in any state of the United States in conformity with the law thereof shall be given full faith and credit in this state, and shall have the same force with regard to persons now or heretofore resident or hereafter to become a resident of the state as if said judgment had been rendered by a court of this state, and shall, as to the status of all persons, be treated and considered and given force the same as a judgment of the courts of this state of the date which' said judgment bears.”
The first case in this court involving this statute is McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546. There a husband had, by publication service, obtained a divorce in Missouri from his wife, who was in Kansas. Eater she brought an action in this state for alimony and to subject real property, the title of which was in the name of her husband, situated in Kansas, to its payment. The court referred to the federal decision and the statute above mentioned and in an exhaustive opinion reviewed the earlier cases in this court and held, among other things, that the Missouri court had jurisdiction to hear the case before it; that its decree was not open to collateral impeachment on the ground of fraud; that the legislature, by the act just mentioned, placed such decrees on the same basis as judgments of the courts of this state with respect to all persons, and the status of all persons affected, and that the facts embraced in the issues presented by the petition on which the decree rests are res adjudicaba; that the action in Missouri was open for the consideration of the subject of alimony, but no application for alimony was made in that case, and the judgment therein-was a bar to recovery of alimony in the suit later instituted in Kansas. The court specifically followed and approved Roe v. Roe, 52 Kan. 724, 35 Pac. 808, and distinguished the case of Rogers v. Rogers, 56 Kan. 483, 43 Pac. 779. The statute was again considered in Miller v. Miller, 89 Kan. 151, 130 Pac. 681. This was a suit for partition of land in Kansas and involved a decree of divorce rendered in Utah on publication service. The court held that by statute of this state any judgment or decree of divorce rendered upon publication service in any state of the United States in conformity to the laws thereof has the same force, and must be given the same force and credit as if rendered by a court of this state, and further held:
“It is a law of this state that whenever the jurisdiction of a court depends upon a fact properly litigated and determined in the action itself, the judgment rendered finding the fact is conclusive evidence of its existence and of the jurisdiction of the court until the judgment is vacated, reversed or annulled in a direct proceeding instituted for that purpose.” (Syl. ¶ 2.)
It was further held that under the laws of Utah it was necessary for plaintiff in an action for divorce to plead and prove residence there for one year, and that the judgment of the court of that state finding such residence cannot be collaterally impeached in this state on the ground that the plaintiff was in fact a resident of Kansas and not of Utah. These cases were followed in Kansas by Carter v. Carter, 89 Kan. 367, 131 Pac. 561; Littlefield v. Paynter, 111 Kan. 201, 206 Pac. 1114, and Noonan v. Noonan, 127 Kan. 287, 273 Pac. 409. It is true that this statute and these decisions pertain specifically to a decree of divorce rendered in another state on publication service only as against a citizen of this state. But no one would contend that a judgment and decree in an action for divorce in another state where the parties appear, file pleadings and try out all issues, should be given less faith and credit than should be given to the judgment and decree of the court of another state where the only service is by publication. The result is that in this state, and under our statutes as they now exist, a judgment and decree in an action for divorce rendered by the court of another state shall be given thé same force as if rendered by a court of this state, “and shall, as to .the status of all persons, be treated and considered and given force the same as a judgment of the courts of this state of the date which said judgment bears.”
However, the jurisdiction of the trial court in this proceeding to determine what disposition should be made of the child between the petitioner, on the one hand, and the respondent, on the other, did not depend on the domicile of the child, nor on the domicile of either of its parents. (Finlay v. Finlay, 240 N. Y. 429.) The disposition of a child in a case such as this should depend on the law of the place where the child is found rather than the law of the place from whence it came. In a habeas corpus proceeding between parents for the custody of the child the rights of the parents are to be considered, but the interest of the state, in its position as parens patries to all minors within its jurisdiction, is ever present. As between the parents themselves, they may be bound by a former adjudication (see Avery v. Avery, 33 Kan. 1, 6, 5 Pac. 418; In re Hamilton, 66 Kan. 754, 71 Pac. 817), but the state, in its relation of parens patries, looks to the welfare of the child at the time the inquiry is being made, and for that purpose former adjudications between parents is evidentiary only and not controlling. This is illustrated* by the case In re Bort, 25 Kan. 308, a habeas corpus proceeding brought by the father for the custody of the children. The husband and wife and children formerly resided in Wisconsin. There the wife brought a suit for divorce against her husband. He answered and filed a cross petition for divorce. While the action was pending the wife, bringing the children with her, came to the home of her parents in Kansas, and later dismissed her petition for divorce in Wisconsin. The divorce action proceeded to trial on the husband’s cross petition. He was granted a divorce, and a decree was entered giving him the custody of the children. He then came to Kansas and brought the habeas corpus suit for their possession, relying upon the decree, and invoked the clause of the federal constitution which provides that full faith and credit shall be given in each state to the judicial proceedings of other states, and contended that the decree of the Wisconsin court concluded the rights of the respective parents at its date, and unless some subsequent change in the relative position and fitness of the parties was shown the custody must be given to the father. In the opinion the court said:
“We shall concede that, as between the parents, that decision is a finality, . . . The decision only determines the rights of the parties inter sese."
But it was held that the question of the best interests of the children was controlling and under the evidence in the case that it was to the best interests of the children that they remain with the mother. The writ was denied.
In this case, while it was alleged in the return of Thomas O. Wear that the petitioner was not a proper person to have the custody of the child, and that it was for the best interests of the child that it remain with the respondents, or be placed in the custody of others who could better care for it, no evidence was offered in support of these allegations. We have heretofore set out all the evidence shown by the abstract, with slight abbreviations which did not change its meaning. The trial court correctly held that the contest as presented to the court was one between the father and the mother, and that as between them the matters adjudicated by the Oklahoma court in the divorce case were res judicata as to matters determined by the decree in that case, and as of the time it was rendered. The trial court specifically offered to hear evidence as to changed conditions which would authorize or justify a different order with respect to the custody of the child, but, as shown by the entry in the journal, counsel for respondents stated in open court they had no evidence of that character to offer.
From this it follows that the court made the only disposition of the child justified under the record, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the defendant in a criminal case, where he was convicted of being a persistent violator of the liquor law, and he assigns as errors the election of a judge pro tem. to try the case when the district judge had died before the election and the trying of the case before such judge pro tem. and the overruling of the motion for a new trial and the pronouncing of judgment and sentence upon him by a judge pro tem. elected after the appointment and qualification of a district judge to fill the vacancy.
The undisputed facts are that Hon. L. H. Finney, district judge of the twenty-fifth judicial district of Kansas, which includes the county of Sumner, where this case was pending and later tried, died August 31, 1929; that Hon. E. J. Taggart was elected judge pro tem. on September 3, 1929, and duly opened court in Sumner county that day, and duly adjourned court until October 7, 1929, when this case was tried and a verdict returned; that the governor appointed Hon. Wendell Ready as district judge to fill the vacancy on October 21, 1929, and he qualified the same day; that on October 28, 1929, Hon. E. J. Taggart was elected judge pro tem. to hear the motion for new trial after Judge Ready had entered his disqualification to sit by reason of having been consulted in a companion case; that the defendant by his counsel objected to Hon. E. J. Taggart sitting as judge pro tem., also to a trial of the case before him as judge pro tem. or de jacto judge, and to the introduction of any testimony, and moved the court to discharge the defendant, which objections and motions were overruled. That he objected on October 28 to the disqualification of Judge Ready and the election of a judge pro tem. and to the hearing of the motion for new trial before the judge pro tem. reelected at that time, who overruled the objections and heard and overruled the motion for new trial and pronounced sentence on defendant. This enumeration of objections and motions made is here noted to show that defendant did not waive any of his rights by silence or acquiescence, but from the very beginning of the case made timely objections to raise and preserve the points he is now presenting on review.
Appellant urges that R. S. -20-305 to 20-311 authorize and permit the election of a judge pro tem. only when the presiding judge is sick, absent or disqualified, and would not be applicable where he was deceased, and that in case of his death or resignation there is a vacancy which under the constitution (art. 3] § 11) must be filled by appointment to be made by the governor, citing Keys v. Keys, 83 Kan. 92, 109 Pac. 985, Golden v. Mitchell, 107 Kan. 1, 190 Pac. 785, and other authorities to sustain his contention. The judges pro tem. in both of these cases cited were elected as such while the presiding judges were living but absent on account of illness, which would bring the election within the provision of the statute, but in both cases the acts of the pro tem. judges, after the death or resignation of the respective judges and until the appointment of their successors, were approved and sustained because of their having been de facto judges.
It is suggested but not urged that in the case at bar the deceased judge might within the meaning of the statute be considered absent so as to authorize and justify the election of a judge pro tem., but such proposition does not merit discussion. (1 C. J. 344.)
The contention of the appellant may readily be conceded that the election of a judge pro tem. in this case was not within the provisions of the statute (R. S. 20-305), but whether properly and legally elected or not, he assumed the duties of the office, was accepted and reputed as being such officer, and was in possession of the office under a fair color or title thereto, which would make him a de facto officer regardless of the legality of his election.
“An officer de facto is one who has the reputation of being the officer he assumes to be, and yet'is not a good officer in point of law. A person will be held to be a de facto officer when, and only when, he is in possession, and is exercising the duties, of an office; his incumbency is illegal in some respect; he has at least a fair color of right or title to the office, or has acted as an officer for such a length of time, and under such circumstances of reputation or acquiescence by the public and public authorities, as to afford a presumption of appointment or election, and induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action . . (46 C. J. 1053.)
“The acts of an officer de facto- are as valid and effectual where they concern the public or the rights of third persons, until his title to the office is judged insufficient, as though he were an officer de jure, and the legality of the acts of such an officer cannot be collaterally attacked in a proceeding to which he is not a party.” (46 C. J. 1060, 1061.)
. In the case of Parvin v. Johnson, 110 Kan. 356, 203 Pac. 721, the judge fro tem. failed to take the oath required by statute (R. S. 20-308), and it was there said:
“One who exercises the powers and duties of judge pro tem. under an election by the bar of the district court and with the recognition and acquiescence of the other officials of the court, is a de jacto judge and his official acts are valid and binding notwithstanding his failure to take the oath of office as provided by statute.” (Syl. ¶ 1.)
In the case of Railway Co. v. Preston, 63 Kan. 819, 66 Pac. 1050, the judge fro tem. who was elected was already holding another office which under the constitution would not permit him to accept any other offifce of trust or profit, and it was there held:
“That the judge pro' tem., so called and chosen, was a de jacto judicial officer, and his authority cannot be questioned in this court in a proceeding in error brought to reverse the judgment rendered by him in the cause which he was selected to try.” (Syl. ¶ 1.)
In the case of State v. Miller, 71 Kan. 491, 80 Pac. 947, it was held:
“The judicial acts of one duly elected and acting as a justice of the peace are not open to collateral attack because he had prior to that time accepted the office of city attorney, and was also acting in that capacity.” (Syl. ¶ 1.)
The Keys case, sufra, cited by both parties, is strong in its conclusion as to the validity of the acts of a de facto judicial officer, it being the case where the judge pro tem. was elected while the judge was sick, but without authority continued to hold court after the death of the judge, and it was there held:
“That the judge pro tem. was a de facto judge, acting under color of authority; that none of his judgments or orders as such is void, or subject to collateral attack.” (Syl. ¶ 1.)
“Where a person lawfully held the office of justice of the peace and was thereafter elected probate judge, and later became ex officio judge of the county court, but notwithstanding his induction into these other offices continued to exercise the powers and duties of justice of the peace, such person was at least a de facta justice of the peace; and where a defendant was arrested, tried, and convicted of a crime before such justice and appealed to the district court, he cannot, by plea in abatement or by any other collateral procedure, be heard to question the right of the justice of the peace to hold his office; and until the title to his office is adjudicated in an action properly instituted by the state itself or by one on whom the state has conferred the office, all the official acts of such person holding the office of justice of the peace are valid and binding — assuming but not deciding that he was not de jure, but merely a de facto officer.” (State v. Billings, 120 Kan. 162, syl. ¶ 1, 242 Pac. 136. See, also, State v. Sweezer, 112 Kan. 818, 212 Pac. 661; In re Day, 129 Kan. 14, 281 Pac. 865.)
An earlier Kansas decision than any here cited was State v. Williams, 61 Kan. 739, 60 Pac. 1050, where a defendant charged with perjury raised the point that the oath had been administered by a de facto judge. The conviction was sustained, and the opinions contains the following interesting information:
“In this country the de facto doctrine applies to the fullest extent . . . As counsel for the state in their arguments say, ‘it might occur that an innocent man should be convicted and executed for a capital crime on perjured testimony in a de facto state (Texas v. White, 7 Wall, 700, 19 L. Ed. 227) under a law approved by a de facto governor (The State of Wisconsin, ex rel., v. Williams, 5 Wis. 308), before a jury drawn by a de facto jury commissioner (State v. Lee, 35 S. C. 192, 14 S. E. 395), in a court sitting in a de facto municipality (Steelman v. Vickers, 51 N. J. L. 180, 17 Atl. 153), and presided over by a de facto judge (State v. Carroll, 38 Conn. 449), upon an information filed by a de facto county attorney (In re Gilson, Petitioner, 34 Kan. 641, 9 Pac. 763), or an indictment presented by a de facto grand jury (The State v. Marsh, 13 id. 596).’ ” (p. 744.)
There can be no question but that the judge pro tem. in this -case was a de facto judge regardless of the right to hold an election at the time it was held, and his acts as such judge pro tem. cannot now be attacked collaterally, and that this attack is collateral. Some of the quotations above were made more at length to cover the question of a collateral attack as well as that of a de facto judge, and it may safely be concluded that no one but a representative of the people generally, as the attorney-general or the county attorney or one who claims the right to the office himself, can attack the validity of the acts of a de facto officer or his right to hold the office.
The appellant further contends that the election of a judge pro tem. to hear the motion for a new trial and pronounce sentence after the qualification of the newly appointed judge, was wholly illegal and conferred no authority upon him to act as such pro tem. judge, and insists that the Golden-Mitchell decision, supra, is conclusive upon that point, but in that case the judge pro tem. was not reelected after the appointment of the new judge; neither was there any showing in that case of a disqualification of the new judge to hear the motion for a new trial as there was in this case; besides, the bar was at that very time regularly proceeding to elect a judge pro tem. because of the absence of the newly appointed judge, so that the former judge pro tem. who was assuming to act was no longer reputed and recognized by the bar and officers of the court to be a judge pro tem., and consequently not a de facto judge. The same rule applies to this second point as to the .former, with reference to its being a collateral attack, and cannot be maintained by the appellant.
There is no complaint or showing of any erroneous or prejudicial rulings during the trial except those with reference to the right of the pro tem. judge to act as judge, and we find no error in- that regard.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant was convicted of violating the Sunday labor law on two counts under section 21-952 and on one count under section 21-955 of the Revised Statutes. He appeals. The first count of the information charged—
“That on the 29th day of September, 1929, on the first day of the week, commonly called Sunday, in said county of Jewell, in the state of Kansas, and within the jurisdiction of this court, one Sam Blair did then and there unlawfully and willfully labor and perform work other than the household offices of daily necessity or other work of necessity or charity, by then and there opening and keeping open for business, and superintending and managing, a public moving- and talking-picture show and theater, commonly known as Blair theater, in the city of Mankato, and by then and there selling to the public generally for valuable consideration tickets of admission thereto, and by then and there taking up such tickets of admission from the patrons admitted.”
The second count charged:
“That on the 29th day of September, 1929, on the first day of the week, commonly called Sunday, in said county of Jewell, in the state of Kansas, and within the jurisdiction of this court, one Sam Blair, as manager and owner of a public moving- and talking-picture show and theater, commonly known as Blair theater, in the city of Mankato, did then and there unlawfully and will fully compel his servants and employees under his charge and control, to wit: ticket seller, ticket takers, ushers and machine operator, to labor and to perform work, in and about the operation of said public show and theater, other than the household offices of daily necessity or other works of necessity or charity.”
And the third count charged—
“That on the 29th day of September, 1929, on the first day of the week, commonly called Sunday, in said county of Jewell, in the state of Kansas, and within the jurisdiction of this court, one Sam Blair did then and there unlawfully and willfully sell and expose to sale goods, wares and merchandise, by then and there selling to the public generally, for valuable consideration, tickets of admission to, and the privilege and right to attend, a public moving- and talking-picture show and theater, commonly known as Blair theater, in the city of Mankato, said show and theater at all times herein mentioned being owned and operated by him, the said Sam Blair.”
Motions to quash the information and in arrest of judgment were filed and overruled. Each motion urged that section 21-952 of the Revised Statutes is unconstitutional in that it violates rights guaranteed to the defendant by the constitution of the state of Kansas and by the constitution of the United States.
Section 21-952 of the Revised Statutes reads:
“Every person who shall either labor himself or compel his apprentice, servant or any other person under his charge or control to labor or perform any work other than the household offices of daily necessity, or other works of necessity or charity, on .the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding twenty-five dollars.”
The defendant relies on sections one and seven of the bill of rights of the constitution of this state and on the first amendment to the constitution of the United States.
Section one of the bill of rights of the constitution of this state reads:
“All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
Section seven of the bill of rights of the constitution of the state of Kansas, so far as material, is as follows:
“The right to worship God according to the dictates of conscience shall never be infriiiged; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship.”
The first amendment of the constitution of the United States reads:
“Congress shall 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The defendant argues that the statute violates these constitutional provisions in that the statute deprives him of his right to religious freedom and compels him to accept Sunday as a day of rest. The defendant did not claim any right under section 21-953, which provides that—
'fThe last section [sec. 21-952] shall not extend to any person who is a member of a religious society by whom any other than the first day of the week is observed as the Sabbath, so that he observes such Sabbath, nor to prohibit any ferryman from crossing passengers on any day in the week.”
The constitutionality of statutes similar to the one here under consideration has been before the courts of this country for consideration on a number of occasions and nearly always those statutes have been held to be constitutional and not to violate any right of religious freedom. (Hennington v. Georgia, 163 U. S. 299; Petit v. Minnesota, 177 U. S. 164; Note to Judefind v. State, 22 L. R. A. 721; 37 Cyc. 541; 25 R. C. L. 1417.)
We are not without decisions of this court which, although not directly in point, are persuasive that the statute under consideration does not violate any constitutional provision. (Topeka v. Crawford, 78 Kan. 583, 96 Pac. 862; State v. Weldy, 113 Kan. 734, 215 Pac. 1005; State v. O’Donnell, 116 Kan. 182, 225 Pac. 1078; State v. Kelly, 129 Kan. 849, 284 Pac. 363.) The constitutionality of this statute was not questioned in any of those cases, but the conclusions declared could not have been reached if the statute were unconstitutional.
The validity of the statute was questioned in State v. Nesbit, 8 Kan. App. 104, 54 Pac. 326, where the court of appeals said;
“It is within the constitutional power of the legislature to require a cessation of labor for one day in seven and to designate the day of rest. Section-298 of chapter 100, General Statutes of 1897 (Gen. Stat. 1889, ¶ 2395), is constitutional.”
The statute is not unconstitutional for any of the reasons urged, against it.
One ground of the motion to quash the information and of the motion to arrest judgment was that the facts stated in the third! count of the information did not constitute such a sale of “goods, wares or merchandise” as is contemplated by section 21-955 of the Revised Statutes, which reads:
"Every person who shall sell or expose to sale any goods, wares or merchandise, or shall keep open any grocery, on the first day of the week, commonly called Sunday, shall on conviction be adjudged guilty of a misdemeanor, and fined not exceeding fifty dollars.”
The defendant argues that the sale of tickets of admission to and the privilege and right to attend a picture show does not constitute the sale of goods, wares or merchandise. What is the purpose of this statute? Its purpose is to prohibit any person from selling or exposing for sale any kind of property except those articles mentioned in the succeeding section which includes drugs, medicines, provisions and other articles of immediate necessity. Theater tickets are personal property which can be sold. Their value is not in the ticket but is in the right that the ticket gives to the holder, the right to be entertained in the theater at the time and place specified in the ticket. The terms “goods, wares or merchandise” have been held to include lottery tickets. (Yohe v. Robertson, 2 Wharton’s Reports [Pa.] 155, 162.) For the purposes of this case, it is not advisable to attempt to define more specifically the words “goods, wares or merchandise,” nor to attempt to state all that is comprehended by them. All that is necessary is to determine whether or not tickets to “a public moving- and talking-picture show and theater” come within the expression “goods, wares or merchandise.” The majority of the court, after consideration of the matter, is of the opinion that the words used in the statute include, within their meaning, theater tickets such as are described in the third count of the information on which the defendant was tried.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for the balance claimed to be due on account for merchandise sold and delivered. Plaintiffs are merchants, dealing in builders’ hardware, heating plants, etc. Defendants are contractors, and for many of their contract jobs bought material from plaintiffs. The account as set out contained a statement of the sums claimed to be due on the separate jobs extending over a period of about three years. Payments had been made from time to time. Many of the items are small. The pleadings disclosed that there was no controversy between the parties as to the items claimed by plaintiffs except as to those claimed for five jobs. The trial court submitted to a jury, asked to answer special questions only, the controversies between the parties as to the sums claimed on these five jobs only. As to them the jury found for plaintiffs in the amount claimed as to two of the jobs and for defendants as to two of the jobs. Respecting these findings there is no substantial controversy presented in this court. The claim of the plaintiffs of $4,881.35 on what is known as the Christian church job is the only one over which there is any serious controversy in this court. It seems defendants had the contract for the construction of the Christian church and sublet installation of the heating system to plaintiffs. The plans shown by certain blue prints, and the specifications for the work, and the bid or proposal to do the work, constituted the contract between plaintiffs and defendants for the installation of the heating system. Attached to and forming part of the plans and specifications is the following:
"Guarantee: When the apparatus proposed to be furnished is completed in accordance with the condition, hereof, the heating contractor shall and must guarantee it to circulate steam throughout the system, and in every radiator, without noise, with the steam pressure in the mains not to exceed two pounds.
“If, after this apparatus is installed, accepted and paid for, any part constructed in strict accordance with the drawing and specifications, or the true intent thereof, shall fail to accomplish the guarantee herein, by reason of any defect developing within the period of one full heating season, due to faulty materials or workmanship, the heating contractor shall remedy such defect at his own. cost within a reasonable length of time after notice.
“The term ‘defect’ as above used shall not be construed as embracing such imperfections as would naturally follow improper treatment, accident, or the wear and tear of use, or the improper workings of the system, if the chimney is not of sufficient size to create a good draft.”
The installation of the heating plant was completed in May and was then tested and circulated steam throughout the system in every radiator, without noise, with the steam pressure in the mains not exceeding two pounds. The next winter, when the plant was being used to heat the church, there was difficulty about the steam circulating through the system, so much so that the building committee of the church declined to pay defendants in full, and defendants in turn declined to pay plaintiffs. Plaintiffs were notified of the defective working of the system, had their workmen endeavor to correct it, without success, and sued for the full amount of their contract price.
The real controversy between the parties is the construction of that portion of the contract previously quoted. As the trial court construed the contract, plaintiffs did not bind themselves to install a heating system that would heat the church, and as to this construction no fault can be found. The trial court further construed the contract as calling for the installation of certain specified materials for a heating system in accordance with the plans and specifications, and that if the system was installed with the materials, and as provided by the plans and specifications, and if when completed it complied with the guarantee in the respect that it circulated steam throughout the system and in every radiator, without noise, with the steam pressure in the mains not to exceed two pounds, that plaintiffs were entitled to recover. This interpretation of the contract was embodied in the instructions of the court, and the jury, in answer to special questions, found that at the time plaintiffs completed installation of the heating plant it did circulate steam throughout the system and in every radiator, without noise, with the steam pressure in the mains not to exceed two pounds. Appellants complain of that construction of the contract. We think it is erroneous. This construction omits to give force to the provision of the contract that if the system should fail to accomplish the guarantee by reason of any defects developing within the period of one full heating season, due to faulty materials or workmanship, the heating contractor should remedy such defects at his own cost within a reasonable length of time after notice. There was much evidence in the case that many times within the period of one full heating season the system would not circulate steam throughout the system, and in every radiator, without noise, with the steam pressure in the mains not to exceed two pounds, and that the trouble was in the pump, also in the valves. Witnesses, apparently qualified to testify, gave evidence as to the probable cost of correcting such defects.
The builders of the church wanted and contracted for something more than a heating plant with materials as called for and installed in accordance with the plans and specifications. They wanted one for the period of one full heating season at least that would function satisfactorily. Plaintiffs were bound by those provisions of the contract as much as by any other. In this respect the contract is similar to that involved in the case of the City of McPherson v. Stucker, 122 Kan. 595, 256 Pac. 963. This conclusion requires a reversal of the case.
One other question needs to be noted; that is, the allowance of interest. Plaintiffs, of course, are not entitled to interest on the sum claimed for the Christian church job until the amount due them is ascertained. With respect to the other items of the account on which interest was allowed by the court, the account appears to be simply a merchant’s mutual running account with a customer. No reason is suggested why the several items on it should bear, interest other than from the date of the last payment. (Williams v. Hersey, 17 Kan. 18; Trust Co. v. Robinson, 89 Kan. 842, 132 Pac. 979.) Payments more than enough to pay all items other than the sum claimed for the Christian church job had been made some time before action was brought. The result is, no interest should have been included in the judgment
The judgment of the court below is reversed for a new trial in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Jochems, J.:
Plaintiff sought to recover taxes paid under protest. Defendants filed an amended answer alleging grounds justifying the levy. Plaintiff filed a demurrer to this answer which was overruled, and from this order plaintiff appeals.
Plaintiff alleged that the defendant rural high-school district No. 5 of Jewell county could not lawfully levy more than the six-mill levy on taxable property within its district for- general purposes and that it disregarded this limitation and made a levy of eight mills for the year 1927. Plaintiff alleged further that an additional one and one-half-mill levy was made for interest and -sinking-fund purposes, but does not contest this additional levy of one and one-half mills and makes no point concerning it. Plaintiff paid its taxes under protest and brought this action to recover the amount of the two mills, alleged by plaintiff to have been unlawfully levied for general purposes. • - . - . -
In their answer defendants admitted the levy of eight mills'- for general purposes as alleged by plaintiff, but set up that the defendant district was acting under the provisions of R. S. 79-1937 and that in pursuance thereto proper notice had been given and a vote had upon the question of the increased levy at the annual meeting of the defendant school district. The defendant, district alleged full compliance with’the procedure indicated by that statute and that the levy of eight mills had been made in accordance therewith and with the provisions of chapter 237 of the Laws of 1925.
The appellant contends upon appeal that the amended answer of defendants showed upon its face that the levy was excessive and unlawful. and that its demurrer thereto should have been sustained because the answer' did not set forth facts showing a defense to plaintiff’s petition.
The appellant makes the contention that .authority for the establishment of defendant rural high-school district-, is' first found in chapter 311 of the Laws of 1915, which appears in R. S. 72-3501 to 72-3514, inclusive. R. S. 72-3506 states the limitation, on taxes and was later amended by chapter 237 of the Laws of 1925. The amendment added in 1925, however, simply added a proviso relative to counties having a population of less than 8,000, but it is conceded that Jewell county, in which the defendant district is situated, has a population of approximately 16,000 and the amendment therefore does not apply.
The appellant contends that the sole question involved is this: Does R. S. 79-1937. extend to R. S. 72-3506, and authorize an increase in rural high-school districts over the.six-mill levy-fixed as a maximum?
It is pointed out that R. S. 79-1937 was originally adopted in 1909 as section 27 of chapter 245 of the Laws of 1909, and that R. S. 72-3506 was not adopted until 1915. Further, that inasmuch as the statute of 1909 (now R. S. 79-1937) did not establish or recognize rural high-school districts and rural high-school districts were not created until the enactment of chapter 311 of the Laws of 1915 (now R. S. 72-3506) it is manifest that the provisions of the law passed in 1909 could not apply to a subdivision of the state not created until 1915. . .
The appellees, on the other hand, contend that when the legislature in 1923 enacted the Revised Statutes and included both the act of 1909 and the act of 1915 in the revision it closed the doors to tracing legislative history of the acts for the purpose of construing them, except where such acts may be in conflict and irreconcilable. They contend that the two acts were reenacted in 1923 in the same session of the legislature as part of the same general revision and are therefore to be considered as acts passed- at the same session of the legislature, and further, that the rule of construction, therefore, is that they may not be construed as inconsistent if they may fairly be read otherwise, citing McMaster v. Gould, 239 N. Y. 606, 147 N. E. 214, 40 A. L. R. 792. They contend further that regardless of whether the legislature had rural high-school districts in mind when it passed chapter 245 of the Laws of 1909, that when it enacted the Revised Statutes and incorporated therein both R.. S. 72-3506 and R. S. 79-1937, it then necessarily had in mind rural high-school districts, and that it was the evident intent of the legislature that both should stand together and that the method provided in R. S. 79-1937 for increasing the maximum levy should also apply to rural high-school districts.
On the other hand, the appellant cites Arkansas City v. Turner, 116 Kan. 407, 226 Pac. 1009, wherein the second syllabus reads:
“Where conflicting and irreconcilable provisions of prior legislative acts are included in a revision and codification of the General Statutes, the legislative history of the separate conflicting acts should be traced, and the later enactment is to be regarded as the existing law, and the older of the conflicting and repugnant provisions, although carried forward into a revision of the General Statutes which was adopted and approved by the legislature, is to be considered as repealed by implication.”
Is there anything conflicting and irreconcilable between the two acts? Can these sections be read together and consistently con strued to mean that the provisions of R. S. 79-1937, relating to the method by which a common-school district may increase its taxes beyond those limited by the act, be followed by a rural high-school district whose rate of tax is limited by R. S. 72-3506?
The fact that both sections appear in the 1923 revision is rather persuasive, but where, as in this case, the claimed authority does not clearly appear in the acts as reenacted in the revision we conclude that resort should be had to the history of the acts and to any other proper rules of construction to determine the true legislative intent.
Section 2 of article 6 of the Kansas constitution reads:
“The legislature shall encourage the promotion of the intellectual, moral, scientific and agricultural improvement by establishing a uniform system of common schools and schools of a higher grade embracing normal, preparatory, collegiate and university departments.”
Under this provision of our constitution the legislature has created and established our system of common schools, and from time to time created schools of higher grade. In creating common and high schools the legislature has placed their management and conduct under subdivisions of the state known as districts. Since the constitution places the responsibility for providing a system of education upon the legislature, it logically follows that a school district created by the legislature has no inherent power of taxation. It must look to the legislature for its right to raise funds by taxation, and has only such power to levy, assess and collect taxes as is clearly granted by the legislature.
A few comparisons of the statute relating to common schools and to the statute relating to rural high schools will throw some light upon how the legislature has treated the two taxing districts.
R. S. 72-401 fixes the date of the annual meeting of common-school districts as the second Friday in April of each year at 2 o’clock p. m.
R. S. 72-3506 fixes the annual meeting of rural high-school districts for the election of officers at 2 o’clock p. m. on the day before that fixed for common schools, except as amended by chapter 237 of the Laws of 1929.
R. S. 72-406 fixes the amount of the tax levy for the ensuing year to be voted upon and fixed by the qualified voters of a common-school district.
R. S. 72-1014 provides that the clerk of the district board shall certify the amount of the taxes voted by the annual meeting to the county clerk.
R. S. 72-3506 further provides that the amount of the levy shall be fixed by the rural high-school board at its annual meeting held on the third Monday in April at 2 o’clock p. m., and also fixes the limitation on the taxing power of rural high schools. The clerk of the district certifies the amount of the levy to the county clerk.
In examining R. S. 72-3501 to 72-3514, inclusive (the rural high-school law), we note the following:
R. S. 72-3506: . . and the county treasurer shall collect and pay over such taxes in the manner provided by law for school districts.”
R. S. 72-3507: “The rural high-school board . . . except as herein provided, shall have the powers prescribed by law for school-district boards. . . . Except as herein provided the laws relating to the issuing of school-district bonds shall apply to rural high-school districts formed in accordance with this act.”
R. S. 72-3509: “. . . and an appeal from the action of the county superintendent . . . may be taken in the manner provided by law for an appeal in the alteration of school-district boundaries; and the county superintendents of public instruction shall have the same general supervision over rural high schools as they have by law over district schools, and rural high-school districts shall be governed as provided by law for school districts except as provided in this act.”
These frequent references to the laws relating to common-school districts show clearly that in enacting the rural high-school law the legislature had in mind the laws relating to common-school districts. If, therefore, it had intended to grant the rural high-school districts the right to levy taxes in excess of those limited by R. S. 72-3506, as later amended by chapter 237 of the Laws of 1925 and chapter 237 of the Laws of 1929, would it not have inserted in that section a proviso somewhat as follows:
“Provided, That if, in the opinion of said board, the amount of taxes so limited by this act shall be insufficient for the needs of the district, then the question of an increased levy shall be determined in the same manner as by law provided for school districts.”
Or by some other similar, explicit provision?
It should be noted further that this identical section R. S. 72-3506 has been before our legislature at two different sessions since the revision of 1923 was adopted. In 1925 that statute was amended by chapter 237 of the Laws of 1925, by adding to the original section a proviso reading:
“Provided,, That if said district is in a county or counties having a population of less than eight thousand each, said board may levy for all purposes not to exceed eight mills on the dollar.”
That amendment had to do particularly with providing an increased levy in certain counties, but except as to that class of counties the legislature let the original limitation stand and did not provide any express method for increasing it. Again in 1929 the original section was amended by chapter 237 of the Laws of 1929. This amendment provided that the annual meeting might be held in the evening at 7:30 p. m. under certain conditions. The original section was otherwise reenacted as it appeared in the 1923 revision, but the provision relating to counties of less than 8,000 inhabitants, which was added in 1925, was omitted.
In addition to the two amendments in 1925 and 1929 the statute as originally enacted was amended by chapter 284 of the Laws of 1917 and chapter 52 of the Laws of 1920 so that since it was originally passed it has been hammered over four times by the legislature. Notwithstanding all this apparent care and solicitude over this law, it still stands with a fixed limitation on the amount of taxes a rural board may levy and no express method is provided by which this limitation may be thrown off and an increased tax levied. After all the working over this law has had at the hands of the legislature this court feels that it is without power to do any “judicial welding” and engraft on the law a clause which will enable rural high-school districts to throw off the express limitation of the statute. It is a question for the legislature and we propose to keep within the bounds indicated by our constitution. The legislature in its wisdom has seen fit to leave the limit at six mills. In 1925 an additional two-mill levy was permitted to rural high-school districts in counties of less than 8,000, so that it is manifest that the question of limitation of levy was then squarely before the legislature. It appears that the legislature has determined that it is the best public policy for rural high-school districts to let that limitation stand. We do not question its wisdom. Our citizens constantly lament “high taxes.” It is generally recognized that the cost of education is the primary cause pf increased taxes. This fact has doubtless been before the legislature on the numerous occasions when this section of the rural high-school law has been before it. Doubtless the legislature can and did advance very sound arguments why the limitation should stand. In the repeated considerations of this law, which we have noted above, the legislature has seen fit to leave it as we find it. We must do likewise.
This court, in Railway Co. v. Alexander, 63 Kan. 72, 64 Pac. 978, said:
“It is contended by the defendants in error that the law, conferring as it does upon the various members of the graded-school-district board all the powers of like officers of ordinary district boards, and creating a separate entity for the purposes of managing a separate" school, with authority to levy taxes, gives the power to such graded-school district to make within its bounds an additional levy not to exceed two per cent; that is, that it may levy as much as the original school district may, and this in addition to what the original district levies, and not that the total of both levies must be the limit fixed in section 6127, General Statutes of 1901, The court below took this view of the question. In this we do not agree.” (p. 73.)
Again, in the same case, at page 74, this court said:
“We may say that the question is not one entirely free from doubt, but we cannot believe that the legislature would have left it in that condition had its purpose been to confer the right so largely to increase the burden of taxation. The authority to levy taxes is an extraordinary one. This is never left to implication unless it be a necessary implication. Its warrant must be clearly found in the act of the legislature. Any other rule might lead to great wrong and oppression, and when there is a reasonable doubt as to its existence the right must be denied. Therefore, to say that the right is in doubt is to deny its existence.” (Citing authorities.)
The defendant school district did not have the right to levy more than the six mills for general purposes. Plaintiff is entitled to recover the excess levy to the amount of two mills. Plaintiff’s demurrer to defendants’ answer should have been sustained.
The cause is reversed with instructions to the trial court to sustain the demurrer to defendants’ answer and for further proceedings in accordance with this opinion.
Johnston, C. J., and Marshall, J., dissenting. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by Martha Wegner to recover on two $10,000 insurance policies which defendant had issued to her husband, the late Frank Henry Wegner, of Onaga.
The controlling facts were these: On September 16, 1926, defendant executed and delivered to Wegner a policy of life insurance, No. 10761, for $10,000, payable to this plaintiff in the event of his death, upon certain conditions stated in the contract. Wegner paid the first annual premium, $50.6.90, but did not pay the succeeding annual premium due September 16, 1927. On September 10, 1927, defendant notified Wegner that unless the premium was paid by October 17, 1927, the policy would be canceled. Wegner ignored this notice, and the matter remained in that situation until Wegner’s death, which occurred on March 21, 1929.
In the first count in this action plaintiff seeks to recover on the above-mentioned policy.
On October 7, 1926, about three weeks after getting the policy referred to above, Wegner obtained a second policy for $10,000, numbered 10804, similar to the first in tenor and conditions. He paid the first premium thereon, $506.90; and about a year later, October 27, 1927, he likewise paid the second annual premium, $506.90. On September 14, 1928, defendant notified Wegner that the third annual premium would be due on October 7, 1928. It also advised him that he had participation dividends amounting to $108.28, and that the balance due on the third year’s premium would be $398.62. In response thereto, on November 3, 1928, Wegner sent defendant his check for $126.72, which was received and credited to Wegner’s account on policy No. 10804. On January 14, 1929, at 4:30 p. m., defendant mailed to Wegner a letter dated a week earlier, which read:
“Exhibit C.
“January 7, 1929.
“Policy No. 10804. Premium $134.30 2dqr.
$7.58 bal. 1st qr.
$141.88 Total amt. due.
Due January 7, 1929.
“Mr. Frank H. Wegner: ... In accordance with the insurance laws of the state of Kansas, and the terms of your policy, above described, we wish to notify you that the policy will be canceled if settlement is not received on or before February 7, 1929.”
Wegner made no response to this letter, and this situation of the contracting parties did not change until Wegner’s death nine weeks later.
Defendant’s refusal to pay on this policy constitutes plaintiff’s second cause of action.
Certain provisions of the policy contract were stressed in the trial below which will require our consideration here. These read:
“Premiums. All premiums are due and payable annually in 'advance. . . . After the first year, premiums . . . may be paid annually, semiannually or quarteidy, ... as follows: Annual premium, $506.90; semiannual premium, $263.60; quarterly premium, $134.30. Except as herein provided, the payment of a premium or any installment thereof shall not maintain this policy in force beyond the date when the next premium or any installment thereof becomes due and payable, and if any premium be not paid when due, according to the terms of this contract, this policy shall cease and determine and all premiums previously paid shall be forfeited to the company, unless otherwise expressly provided herein. . . .
“Grace in Premium Payments. After the first annual premium shall have been paid, a grace of one month will be granted for the payment of every premium, during which time this policy shall continue in force, subject to deduction of the premium for the current policy year.
“Annual Dividends. At the end of the second policy year, provided the full annual premium for the third policy year shall have been paid, and annually thereafter, if the full annual premium to the end of the next policy year shall have been paid, this policy will be credited with such dividends as may be apportioned by the board of directors of the company. Dividends thus credited will be paid in cash, or, at the option of the insured, will be applied either in reduction of premiums, or upon the addition or accelerative endowment plan.
“Participation. The policies written in, and forming this class, collectively, shall be analyzed as to mortality savings in this class . . . ; and then the policies written in, and forming, this class shall be credited annually with a certain sum of money; . . . ; the basis of the calculations shall be as follows, to wit: The said fund shall be the equivalent of one dollar a thousand for each one thousand dollars of participating life insurance which shall have been written, and paid for in cash, during the previous year in the company’s ordinary department, . . . and there shall enter into these calculations the renewal of that business, written for the said period of ten years, . . . but no renewal shall count until, nor unless, the premiums on the policies so renewed shall have been paid in cash. The said fund thus created shall be derived from the premiums paid on policies in this class and not from premiums paid on policies in any other class nor from premiums paid on any other policies; the said fund shall be divided annually among the persistent premium-paying policyholders in this class, and accordingly, the said fund shall bo allocated, apportioned, and distributed to the policies in this class, individually, and the proportionate part of the said sum derived, as aforesaid, shall be credited to, and shall be deducted from the annual premium on this policy, so long as this policy shall continue in force by the payment of premiums thereon in cash; . . .”
The cause was submitted to the court upon the pleadings and on agreed statement of facts summarized as above and including the following:
“14. That on October 27, 1927, the date upon which Frank Henry Wegner paid the second annual premium on policy No. 10804, there was due him the sum of $54.82 as a participation dividend, which dividend was improved at 3% per cent interest, said interest amounting to $1.92 on October 7, 1928, which dividend and interest belonged to Frank Henry Wegner, and could have been used by him to pay the balance due on the first quarterly premium, and a part of the second quarterly premium, and said sums are due the plaintiff.
“15. If the insured was entitled to any participation dividend on policy No. 10751 on September 16, 1927, that dividend was $54.82.
“16. If the insured was entitled to any participation dividend on policy No. 10804 on October 7, 1928, that dividend was $51.54. This is a different dividend than that mentioned in No. 14.
“17. The defendant did not notify Frank Henry Wegner of the amount of the dividends as covered by these agreed statements of facts, other than letter dated October 7, 1928, a copy of which is as follows:
“‘$506.90
Participation div. Oct. 7, 1928...................................... 108.28
Balance due .................................................... $398.62
“ ‘Mr. Frank H. Wegner: . . . We wish to advise you that the premium on your policy, as above described, fell due to-day.
“ ‘Although there is a period of grace in which to pay it promptly on due date, otherwise the policy may lapse.’ ”
The trial court gave judgment for defendant on both counts, and plaintiff appeals.
The legal questions involved in the first count are simple and readily disposed of. Wegner had an insurance policy, No. 10751, for $10,000, for which he paid the first annual premium of $516.90. This insured his life for one year, and because of the leniency of the statute as well as by the grace period of the contract itself, defendant’s liability extended for thirty days in addition to the year for which he had paid. Wegner was notified by defendant on September 10, 1927, that unless he paid by October 17, 1927, his policy would be canceled. He did not pay. The statute in force at the time this policy was written (Laws 1925, ch. 184), as well as the later act which superseded it (Laws. 1927, ch. 231, §§ 40-410, 40-411), did not forbid the cancellation of an insurance policy with or without notice where the default in payment of premium has existed for over six months. What, then, is the basis for plaintiff’s claim on this policy? It rests on the theory that because defendant did not notify Wegner that he was entitled to a credit of $54.82 under the participation clause quoted above he owed nothing and was not bound to pay anything until he was so notified. The terms of the contract are not susceptible of such an interpretation. The participation clause is verbose and complicated in its text and meaning, but one feature of it which stands out clearly is that the money to be accumulated under this participation clause is only to be divided annually “among the persistent premium-paying policyholders” of the class of persons holding this particular kind of policy. One who pays a single premium and no more cannot be characterized as a “persistent premium-paying policyholder.” Defendant reads and construes the annual-dividend clause and the participation clause together and argues therefrom that the insured was not entitled to these credits until he had paid the third annual premium. Whether that contention is correct or not, this court cannot discern that plaintiff has any standing whatever to recover on the first cause of action.
The legal questions involved in the second cause of action are not so easily disposed of. The term “persistent paying policyholder” is novel, but manifestly it must mean a policyholder who persists in paying his insurance premiums, one who does not neglect to do so, who does not let his policy lapse for nonpayment. So far as concerns policy No. 10804, Wegner did persist in paying premiums due thereon. He paid the second annual premium somewhat belatedly, but it was accepted. To that extent he was a persistent premium payer. It was stipulated by the litigants that, having persisted in paying the second year, he was entitled to a credit of $54.82 on his first year’s premium payment under the participation, clause, which accumulated $1.92 as interest up to October 7, 1928, at which time the aggregate of that principal and interest, $56.74, could have been applied on the payment of the third annual premium. At that time, also, Wegner had a right to a second annual credit under the participation clause, agreed to be $51.54; and this sum also was available to reduce his third annual premium, if he had chosen to pay it. The total of these two credits is $108.28, but the contract does not intimate that the insured had a right to have them applied on a quarterly premium. On the contrary, the participation fund was to be “divided annually,” and “shall be credited to and shall be deducted from the annual premium.” Wegner chose not to pay the third annual premium in full, less the credits due him ($506.90 less $108.28 leaves $398.62), as notified by defendant in its letter of October 7 set out above. On November 3, 1928, he paid only $126.72, which was accepted and credited as-a partial payment on the first quarterly premium for the third year. Defendant wrote to Wegner to that effect on January 14, 1929 — - the letter marked “Exhibit C,” dated January 7. Wegner had the-privilege of paying any annual premium after the first in quarterly-installments. A quarterly installment was somewhat higher than, the precise one-fourth of the annual premium — not an unreasonable requirement. Wegner’s remittance of $126.72 on November 3, 1928, was obviously calculated on one-fourth of the annual premium, whereas by the terms of the policy, if he chose to pay in quarterly-installments, he should have remitted $134.30. Obviously Wegnerdid not regard himself as entitled to use the participation credits on a mere quarterly installment, or he would not have remitted as much as he did. He paid what he conceived to be one quarterly installment, and he acquiesced in that construction of his remittance-as stated in defendant’s letter to him dated January 7 and mailed. January 14, 1929.
In its answer defendant alleged—
“10. That said Frank Henry Wegner, or the plaintiff herein, or any other per-, son did not pay the sum of one hundred thirty-four and so/ioo dollars ($134.30), being the amount of the second quarterly premium due on said policy, and the amount of seven and §ioo dollars ($7.58), being the unpaid balance the first quarterly premium; and defendant canceled said policy of life insurance, No. 10804, on the 8th day of February, 1929, and that said policy was-: not in force and effect at any time subsequent thereto.”
When all the foregoing details are fully digested, the controlling question in this lawsuit is whether defendant had a right- to cancel policy No. 10804 on February 7, 1929, about six weeks before the death of the insured.
The statute governing cancellation and forfeiture of policies for nonpayment of premiums under which this policy was written was -chapter 184 of the Laws of 1925. Section 1 of that statute declares it to be unlawful, within six months after default in payment of any premium or installment of premium, to forfeit or cancel any life insurance policy (except certain policies not here concerned) without first giving notice in writing to the insured of its intention to do so. Section 2 reads:
“Before any such cancellation or forfeiture can be made for the nonpayment of any such premium the insurance company shall notify the [holder ofj insured under any such policy that the premium thereon, stating the amount thereof, is due and unpaid, and of its intention to forfeit or cancel the same, and such [policyholder] insured shall have the right at any time within thirty -days after such notice has been duly deposited in the post office, postage prepaid, and addressed to such [policyholder] insured to the address last known by such company [in which] to pay such premium: Provided, That in lieu of the notice hereinbefore provided in the case of policies providing for a period of grace of not less than thirty days or one month for the payment of premiums and containing any provision for cancellation or forfeiture in case of non-payment of premiums at the end of such period, the insurance company may, not more than thirty days prior to the date specified in such policy when any premium will become due and payable without grace, in like manner notify the insured under any such policy of the date when such premium will fall due, stating the amount thereof, and its intention to forfeit and cancel the same if such premium be not paid within the period of grace provided in the policy, .and any attempt on the part of such insurance company, within six months ■after default in the payment of any premium, to cancel or forfeit any such policy without the notice herein provided for shall be null and void. The affidavit of any responsible officer, clerk or agent of the corporation, authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy shall be prima facie evidence that such notice has been duly given.”
The italics in the text just quoted indicate the new matter included in the amended statute of 1925 which did not appear in the prior statute of 1913, R. S. 40-332, 40-333. A comparison of the act of 1925 with the prior statute is necessary because it must be -determined whether the interpretations of this court heretofore given to the earlier statute concerning notice of intention to cancel should be followed under the act of 1925 in dealing with such a policy as No. 10804 where a thirty-days’ grace period is one of its specific terms. Under the earlier statute, this court repeatedly held that a premature notice of intention to cancel a policy was ineffective. In Priest v. Life Association, 99 Kan. 295, 161 Pac. 631, it was held that a notice to forfeit a policy of life insurance given before the time had expired within which payment might rightfully be made did not satisfy the statute. In Cunningham v. Insurance Co., 106 Kan. 631, 189 Pac. 158, that statute was construed to “forbid a forfeiture on account of the nonpayment of a premium until a thirty-day notice thereof shall have been given after such default has occurred.” In Wolford, Administratrix, v. Insurance Co., 114 Kan. 411, 413, 219 Pac. 263, it was said:
“It has been determined that the statute mentioned to the effect that a ■cancellation notice given before the time in which payment may rightfully be made is not a valid statutory notice, and this forfeiture or termination of liability on the policy does not result from it. [Citations.]”
See, also, Swayze v. Mutual Life Ins. Co., 32 F. (2d) 784.
In the later case of Bank Savings Life Ins. Co. v. Baker, 120 Kan. 756, 244 Pac. 862, certain differences in the acts of 1913 and 1925 were discussed, but not the particular point of present concern. Since the policy now under consideration provided for a grace of one .month and for the payment of premiums and for cancellation or forfeiture at the end of such period for nonpayment, the proviso of section 2 of the act of 1925 quoted above becomes important. It provides that in policies like Wegner’s—
“The insurance company may, not more than thirty days prior to the date specified in such policy when any premium will become due and payable •without grace, in like manner notify the insured under any such policy, of the date when such premium will fall due, stating the amount thereof, and its intention to forfeit or cancel the same if such premium be not paid within the period of grace provided in the policy. . . .”
It thus appears that this statute disavows any legislative intention to add a statutory grace period of thirty days to the grace period of thirty days provided in the policy contract itself. It does not provide for a thirty-days’ notice to be given when the grace period had expired. It says the notice may be given “not more than thirty days prior to the date when the premium is due.” It does not prescribe a thirty-days’ notice nor forbid a notice of less time. Applied to this case Wegner’s second installment of the third year’s premium was due on January 7, 1929. The grace period provided by the policy would carry the time to February 7, 1929. Any time “not more than thirty days” prior to January 7, the notice might have been given. But the notice dated January 7, mailed January 14, after the due date and after a week of the grace period itself had begun to run, did not conform to the statute.
It should be noted that the statute (Laws 1925, ch. 184) provides, broadly speaking, that it shall be unlawful for an insurance company, “within six months after default in payment of any premium, or installment of premium,” to forfeit or cancel the policy on account of nonpayment of premium without first giving notice, in writing, of its intention to do so; and further provides, “and any. attempt on the part of such insurance company, within six months after default in the payment of any premium, to cancel or forfeit any such policy without the notice herein provided for shall be null and void.”
So the only way the insurance company could cancel the policy within six months after default in payment of premium was by giving a notice which conformed to the statute.
The statute provides for one of two notices. In the first part of section 2 it is provided that a notice may be given that the premium, stating the amount, “is due and unpaid,” and stating the intention of the company to cancel the policy. When that notice is given the insured has the right, within thirty days after the notice has been mailed to him, to pay the premium. Now this part of the statute is the same as the old statute (R. S. 40-333), except that the word “insured” is used instead of “policyholder,” which gets away from the question raised in Zeigler v. Kansas Life Ins. Co., 120 Kan. 252, 243 Pac. 272. Under this statute it was repeatedly held that the notice could not be given until the premium is in fact “due and unpaid.” (Priest v. Life Association, supra; Reynolds v. Insurance Co., 105 Kan. 669, 185 Pac. 1051; Cunningham v. Insurance Co., supra; Wolford v. Insurance Co., supra.) And it was held in those cases that where the policy fixed a date for the payment of premium and contained a provision by which the insured had a, thirty-day or one-month grace period for the payment of premium, the notice given before the end of the grace period was premature. Under this part of the statute, as construed by the decisions just, referred to, the notice given in this case, whether figured on the date January 7, when it was dated, or January 14, when it was mailed, was not a compliance with the statute, for the reason that the grace period did not end until February 7.
The other notice which may be given is provided for by the proviso in section 2 of the statute. This relates to policies containing a thirty-day or one-month grace period, and the policy in this case contained such a provision. With respect to such a policy the statute provided that in lieu of the notice provided for in the first part of the section, and which we have previously discussed, the insurance company may “not more than thirty days prior” to the premium-paying date provided in the policy, notify the insured .when the premium will be due, stating the amount, and of its intention to forfeit or cancel the same if the premium is not paid within the thirty-day grace period. In this case, if the insurance company wanted to give notice under this provision of the statute, the notice should have been mailed before January 7. It is barely possible that a notice mailed on January 7 would have been sufficient, but the insurance company here did not mail the notice until January 14, although it was dated the 7th. So the notice is not good under that provision of the policy.
The result is that the company did not comply with either of the provisions of the statute with respect to giving notice of forfeiture, and under the statute the attempted forfeiture at any time within six months of January 7, without giving such notice, was void. Hence the policy was in force at the time of the death of the insured.
It follows that on the first cause of action the judgment is affirmed and on the second cause of action the judgment is reversed with instructions to enter judgment for plaintiff.
Hutchison, J., dissents from so much of the opinion and decision as holds the defendant liable on the second cause of action. | [
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|
The opinion of the court was delivered by
Jochems, J.:
This suit was brought by the plaintiff as trustee in bankruptcy for the Alma Produce Company, a corporation of Alma, Neb., against the defendant for the conversion of property. The defendant prevailed, and plaintiff appeals.
The petition of plaintiff alleged that on April 14, 1926, a petition in bankruptcy was filed against the Alma Produce Company of Alma, Neb., which was a corporation organized under the laws of that state, and on May 7,1926, it was adjudged bankrupt; that until about April 6, 1926, the Alma Produce Company had been engaged in conducting a general produce business in Almena, Kan., under the name and style of the Almena Produce Company, and that the business so conducted was in fact owned and managed by and was a part of the assets of the Alma Produce Company of Alma, Neb.; that on or prior to April 13, 1926, the Alma Produce Company was the owner and in possession of, and entitled to the possession of, certain personal property located in Almena, Kan., which property consisted of poultry and eggs, alleged to be of the fair market value of $3,064.75. Plaintiff further alleged that the defendant, without the consent of the Alma Produce Company or anyone in authority to act for it, had wrongfully and illegally taken possession of the personal property described in the petition, sold the same and converted the proceeds thereof to its own use and benefit; that at the time the defendant so took possession of the property and sold it the Alma Produce Company was insolvent and had failed and discontinued its business, all of which was well known to the defendant; that the personal property had been converted to the use of defendant with full knowledge of the insolvency of the Alma Produce Company.
The defendant answered admitting the incorporation of the Alma Produce Company, the appointment of the trustee in bankruptcy and that on April 8, 1926, the Alma Produce Company was insolvent. Defendant further admitted that it sold the goods and chattels described in plaintiff’s petition for the sum of $2,903.89, and deposited the proceeds to the credit of the Almena Produce Company in defendant’s bank. It further alleged that on April 13, 1926, the Almena Produce Company was indebted to the defendant bank in the sum of $3,237.40 and that the proceeds derived from the sale of the personal property were set off against the matured debt of that company. It further alleged that the Almena Produce Company was in fact a partnership composed of George Doan and Verle Doan, his son, and that the name Almena Produce Company was the trade name of said Doans; that it was represented to the defendant that the Almena Produce Company was independent of the Alma Produce Company and that the two concerns were separate and distinct entities. Defendant alleged further that the Alma Produce Company, a corporation,, had no authority to carry on business under another or different name and had no authority to transact business in the state of Kansas, and that it never had carried an account with the defendant; that the Almena Produce Company did not hold itself out or transact business as a branch of the Alma Produce Company of Nebraska.
Upon these issues the case was tried to the court without a jury. The court made the following findings in the journal entry of judgment:
“1. The court finds that the allegations of the plaintiff’s petition are not true, and that the allegations of the defendant’s answer are true.
“2. That the personal property described in the petition of the plaintiff which it was alleged was the property of the Alma Produce Company and that the same was wrongfully converted to the use of the defendant, was not at any time the property of the said Alma Produce Company, but was at all times the property of the Almena Produce Company, a copartnership composed of Verle Doan and George Doan.
“3. That the said Verle Doan at all times represented to the defendant bank that he and his father, George Doan, were the owners of said personal property referred to in the petition; that said bank believed them to be the owners thereof and extended credit as alleged in the answer on the strength of their said claim of ownership of said property, all with the knowledge and consent of the said officers and directors of the said Alma Produce Company, and the said Alma Produce Company and its trustee are estopped to claim ownership to said property as against defendant bank.
“4. That the defendant received from the sale of the property described in the petition the sum of $3,188.74; that the defendant bank was entitled to set off as against said sum an overdraft held on the books of said bank against the Almena Produce Company in the sum of $3,021.72, leaving a balance due to Doan of $167.02, which is evidenced by an outstanding cashier’s check, which should be canceled unless Doan assigns same to trustee of Alma Produce Company.”
It appears from the evidence that in 1924 one George Doan and his son Verle, of Alma, Neb., were engaged in the management of the Alma Produce Company, of Alma, Neb., a corporation; that the father was director and general manager and the son assisted in the management; that some time in April of that year the two Doans established a business at Almena, Kan., under the name of the Almena Produce Company, which, according to the evidence, was advertised as “The Almena Produce Company, Not Incorporated.” To establish this business the father furnished the son money and the son came to Almena and became manager of the Almena Produce Company. At the time the business was started in Almena the son, Verle Doan, deposited $2,000 in the defendant bank— $1,000 on April 1, 1924, and $1,000 on April 7, 1924. The business at Almena continued under the management of Verle Doan until about April, 1926, during which time it did all of its banking with the defendant and frequently received credit from the defendant by reason of the bank honoring checks issued to purchasers in payment of produce. From time to time the bank permitted overdrafts in this manner to be incurred by the Almena Produce Company. On numerous occasions during his lifetime George Doan (who at the time of this litigation was deceased) came to Almena. He was introduced by the son to officers of the defendant bank. The business activities, however, were principally handled and managed by the son Verle. It appears from the testimony of officers of the defendant bank that at the time the Almena Produce Company was established, and at numerous times during the following two years, it was represented to the officers of the bank by Verle Doan that the company was a copartnership composed of himself and his father, George Doan; that the father had furnished the money and the son managed the business and that they were, equal partners; that sometime they intended to incorporate the company. It appears that at all times the defendant bank believed the Almena Produce Company to be a copartnership and extended credit on that basis. Further, that the Almena Produce Company established a branch at Phillipsburg, Kan., and operated it under the name of the Almena Produce Company. Its property was listed for taxation as the property of the Almena Produce Company. It made statements to the bank that it owned the property in its possession and put out a calendar printed and used for advertising purposes upon which its name appeared as “The Almena Produce Company, Not Incorporated.” The officers of the defendant bank testified that they had never heard, prior to the time the last overdraft was permitted, that the Alma Produce Company of Alma, Neb., claimed the Almena Produce Company as a branch or that it claimed ownership of the Almena company.
The indebtedness to the defendant bank grew out of the fact that the bank had permitted the Almena Produce Company to overdraw its account in the purchase of produce and poultry. The Almena Produce Company then drew drafts on the Alma Produce Company of Nebraska for $3,000 which were turned down when presented, due to the fact that when these drafts arrived the Alma Produce Company had become insolvent. It further appears from the evidence that Verle Doan was not in charge of the Almena Produce Company on April 12, 1926, the date the drafts were turned down, but the business was then in charge of one Jim Vculek. When the drafts were returned the officers of the bank asked Vculek whether or not it would be all right for them to take charge of the assets of the Almena Produce Company, sell the same and apply the proceeds to the overdraft. He replied that it would be all right with him, but that they should call Doan. One of the officers of the bank then called Doan at Alma, Neb., and asked him whether they could sell the merchandise and apply the proceeds. He answered that the bank could not do that because he had already sold the merchandise. Doan told him to talk to his attorney. The attorney stated to the officer of the bank: “I will neither give you permission nor deny you permission. You use your own judgment.”
The appellant strongly contends that the .testimony of the officers of the bank to the effect that the son, Verle Doan, had represented to them that the Almena Produce Company was a copartnership, was not sufficient, and that the finding of the court upon this issue cannot stand because upon the trial Verle Doan denied that he had made such a statement and denied that it was a copartnership, testifying that it was a branch of and its assets belonged to the Alma Produce Company, a corporation. The appellant contends that the fact that defendant was led to believe the property converted by it belonged to a third person or entity was no justification for converting it where in fact it belonged to the Alma Produce Company. It makes the further contention that the defendant had no consent from anyone .in authority connected with either the Alma company or the Almena company and that to permit the defendant to prevail in this case would be to permit it to gain a preference over the other creditors of the bankrupt corporation.
The court found the facts as above noted and we believe the evidence is sufficient to justify its findings.
The testimony of the officers of the bank substantiated the allegations of their answer. It should be noted that the only evidence offered by the plaintiff that the property was owned by and belonged to the Alma Produce Company was the testimony of Verle Doan, who stated that the Almena company was not a copartnership as claimed by the defendant; that it was a branch of and owned by the Alma Produce Company and that the property taken by the defendant bank was the property of the Alma Produce Company. In his testimony he admitted, however, on cross-examination that he had never listed any of the property for taxation as being the property of the Alma Produce Company, but that he had listed it as belonging to the Almena Produce Company. Of course, the burden of proof was upon the plaintiff to establish to the satisfaction of the trier of the facts that the property belonged to the Alma Produce Company. The court found against the claims of the plaintiff, and there being sufficient evidence upon which to base his findings the decision must stand.
It is to be noted that if the property of the Almena Produce Company ever did belong to the Alma Produce Company, a corporation, that there is nothing in the record to show any course of dealing between the two concerns to establish that contention. It would appear that if the Almena concern was a branch of the Alma company it would be manifest that from month to month there would be transactions between the companies which would appear on the books and records of the corporation. It would seem that from month to month, or at least annually, there should be some accounting from the Almena concern to the Alma company. Further, it is argued with great force by the appellee that if the property of the Almena company did belong to the corporation that the corporation never had any authority to operate in this state as a corporation, and also had no authority to operate under a name other and different from that under which it was originally incorporated, and that if it permitted some of its agents or employees to hold out the Almena company as a copartnership it and its creditors are estopped under the facts as shown in the record. We believe that this position is well sustained by authority.
Against the claims of the appellant the appellee summarizes the testimony thus:
That the same Verle Doan who testified on the trial that the Alma Produce Company owned the property taken by the defendant bank told every officer of that bank that the Almena Produce Company was a copartnership owned by his father, who furnished thé money, and by himself, who managed the Almena Produce Company until a few months prior to the conversion of the property; he advertised it in the name of the Almena Produce Company in the newspapers; he• distributed a calendar for advertising purposes in the name of “Almena Produce Company, Not Incorporated.” He established a branch office at Phillipsburg, not of the Alma Produce Company but of the Almena Produce Company; he deposited' money not in the name of the Alma Produce Company but of the Almena Produce Company. He listed no property for taxation in the name of the Alma corporation but in the name of the Almena company. He made' statements to the bank that the property was owned by the Almena Produce Company. He obtained credit' at the bank on the strength of representations as to ownership. Further, the Alma corporation had never obtained permission of the state of Kansas to do business therein. All of these things were permitted by the Doans, who were officers and one of whom was a director of the Alma Produce Company.
Under these conditions the trial court properly found that the plaintiff was estopped from claiming the property taken by the defendant. In 21 C. J. 1172, § 177, the text reads:
“Where the true owner of property holds out another, or allows him to appear as the owner of or' as having full power of disposition over the property, and innocent third persons are thus led into dealing with such apparent owner or person having such apparent power of disposition, they will be protected. However indisputable were the intentions of the owner not to surrender his ownership, when he has surrendered the possession and exhibited the person who has that possession to the world as one having the power to dispose of the property, he will not be heard against an honest buyer who has acted upon the confidence imprudently reposed by the owner.”
See, also, Luzadder v. Hale, 118 Kan. 85, 233 Pac. 1046; Chicago G. W. Rld. Co. v. Lowry, 119 Kan. 336, 239 Pac. 758.
The appellant discusses at some length the question which was raised in the pleadings of the defendant to the effect that inasmuch as the corporation had not been licensed to do business in Kansas the plaintiff as trustee in bankruptcy did not have authority to bring this action in Kansas. The appellee states that this point was abandoned on the trial, and at any rate it is not good. The evidence as to the fact that the corporation was never licensed in Kansas does, however,- have a strong bearing upon the question of estoppel.
The appellant further raises this question: Where a person has converted the property of an insolvent, for the purpose of acquiring preference, can he set off the indebtedness due him in an action by trustee in bankruptcy for such conversion of the property? Under this heading the appellant argues that inasmuch as after the drafts were turned down the officers of the bank then called Mr. Doan and the attorney of the Alma Produce Company, that the information thus given them, as hereinbefore set forth, was such that thereafter when the bank took charge of the property and converted it to the payment of the indebtedness of the Almena Produce Company it stood in the position of a creditor of the bankrupt who had received a preference within the four-months period, and that having so received payment of its claim within the four-months period it had no right to set off the proceeds so received against the indebtedness of the Almena Produce Company.
The trouble with this contention is that the court found, under the evidence, that the property did not belong to the corporation, but that it belonged to the copartnership. The substance of what was said to the officer of the bank who telephoned was that neither Doan nor the attorney could give the bank any authority to proceed to sell the assets. There was not in that conversation any absolute claim of ownership on behalf of the Alma Produce Company, and even if there had been their statements then, after the bank had already extended credit to the supposed partnership, would not have been binding upon the bank. At any rate that issue was tried out before the court and it found that the property belonged to the co-partnership and not to the corporation. So, regardless of any claim of Doan or his attorney in the telephone conversation, no preference ■to a creditor of the bankrupt was established.
The appellant further cites some authority on the proposition that in an action sounding in tort the defendant cannot plead by way of set-off an action on its part for the recovery of money. This was formerly the law in this state but is so no longer. R. S. 60-713 provides:
“A set-off can only be pleaded in an action in which a recovery of money is sought and must be a cause of action for the recovery of money.”
See, also, Deerfield State Bank v. Coerber, 113 Kan. 498, 215 Pac. 285.
Since no error appears in the record and the evidence is sufficient to uphold the finding of the trial court, the judgment must be affirmed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant was convicted of being a persistent violator of the prohibitory liquor law, and appeals.
His contention is that the evidence was not sufficient to support the conviction. He was convicted of having certain intoxicating liquors in his possession on the premises known as 423 Avenue A East, in the city of Hutchinson, in Reno county. There was evidence which tended to prove that he had been convicted óf violating the prohibitory liquor law before a justice of the peace in the city of Hutchinson; that immediately preceding his arrest on the charge on which he was tried, and from which this appeal has been taken, police officers of the city of Hutchinson went to the above-described place, a rooming house, and informed the defendant that they had come with a warrant to search the premises; that he went with them through the kitchen and into the pantry and said, “Well, you have got me,” handed one of the officers a bottle, and said, “This is all I have got”; that the officers found other bottles containing intoxicating liquor in the pantry; and that they then went to the garage on the premises where the defendant kept his car and there found a quantity of alcohol. That evidence was sufficient to justify the jury in finding that he had possession of the intoxicating liquor found in both the pantry and the garage. However, it is only fair to the defendant to say that the rooming house was operated by another person with whom the defendant had been living for a number of years, and that he denied handing the liquor to the officer in the pantry, denied that he had any knowledge of the alcohol being in the garage, and testified that none of the liquor was his. He testified that what he said to the officers in the pantry was, “Guess there it is; I guess that’s what you are looking for.” There was ample evidence to support the verdict of the jury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The question in this case is whether the commissioner of compensation may, on his own motion, and without regard to the authority conferred by section 28 of the workmen’s compensation act (Laws 1927, ch. 232), set aside an award duly made, approved and filed, and grant a rehearing of the claim, for compensation.
Walz, an employee of the railway company, sought compensation for an injury, and the matter was heard by an examiner in the city of Atchison on July 23, 1929. On August 1 the examiner made an award denying compensation on the ground written claim for compensation was not made within ninety days after the accident. On August 12 the award was approved and filed by the commissioner of compensation. On August 20 the commissioner made the following order:
"order op rehearing.
“Now on. this 20th day of August, 1929, the commissioner does on his own motion set aside his award filed on August 12, 1929, in the above-entitled matter, and does hereby order a rehearing of this claim for September 7, 1929, at 10:30 a. m., in the district court room at Atchison, Kansas.”
The employer appealed to the district court, the district court dismissed the appeal, and the employer appeals to this court.
One of the chief defects of the old workman’s compensation act was the method of administering it, and it turned out to be an act for the promotion of litigation. The act was revised in an effort to make it a simple administrative measure whereby compensation claims might be easily determined without delay, uncertainty and expense. Accomplishment of the purpose necessarily depended on nature of procedure, and the procedure was specified in detail.
The manner in which the act is to be interpreted with respect to procedure was fully considered in the case of Norman v. Consolidated Cement Co., 127 Kan. 643, 274,Pac. 233. The Norman case reached this court by appeal. The act made no provision for that procedural step, and the appeal was dismissed. In determining the specific question the entire act was considered, and in the opinion prepared by Chief Justice Johnston it was made as plain as clear and forceful English composition could make it that the legislature chose what procedure it would adopt, disregarded rules and methods of civil procedure, and substituted a system of its own, complete, explicit and exclusive. It is not necessary to discuss that subject again.
What the commissioner has done — speaking in terms of civil procedure — was to review a judgment, set it aside, and grant a new trial. The legislature was perfectly familiar with that kind of procedure when it framed the compensation act. The civil code contains an entire article relating to new trials and proceedings to revise judgments, and when the compensation act was framed everything squinting in that direction was left out. The commissioner was given power to approve or disapprove the examiner’s award. Beyond that the purpose manifestly was to avoid the confusion, uncertainty, delay and expense necessarily attending a practice looking to the reopening of closed cases.
It is not material that in this case compensation was denied because proper claim had not been made. The section of the statute relating to that subject is imperative:
“No proceedings for compensation, shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer . . . within ninety (90) days after the accident.” (Laws 1927, ch. 232, § 20.)
Unless the workman could show compliance with the statute, the examiner had no function to perform beyond making his report. Neither is it material that by acquiescence in the commissioner’s order the workman has now lost privilege to appeal from the adverse award. If the shoe were on the other foot, and by seeking to take advantage of a rehearing order the employer had lost privilege to appeal, the workman could readily appreciate that in the long run it is better to accept the law as the legislature made it.
The judgment of the district court is reversed, and the cause is remanded with direction to reinstate the award as originally made, approved and filed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This case involves a claim for compensation under the workmen’s compensation law. Samuel G. Kennedy was an employee of the Hull & Dillon Packing Company, and had been for about twenty-five years, and on June 20, 1928, suffered an injury which resulted in his death. The plaintiff, his widow, made a claim for compensation, and she was allowed compensation in the amount of $4,000, and the sum of $150 for funeral expenses. The Packing Company and the insurance carrier, the United States Fidelity and Guaranty Company, appealed from the award of the commission to the district court, where the findings and award of the commission were affirmed. The defendants appeal.
Samuel G. Kennedy was a traveling salesman and collector for the packing company located at Pittsburg, Crawford county, Kansas, and Kennedy was a resident of Pittsburg. His salary was $33 per week, and he was allowed not to exceed $22 per week for expenses. The packing company allotted him certain territory in which to solicit and collect. He was expected to call on the trade in the territory allotted to him, being the towns of Opolis, in Crawford county, Kansas; Columbus, Crestline, Galena and Lawton in Cherokee county, Kansas; Hoclcerville, Quapaw, Century, Picher, Carden and Commerce, in Ottawa county, Oklahoma; Waco, As-bury, Carl Junction and Smithfield, in Jasper county, Missouri. On the morning of June 20, 1928, he started on a trip from Pitts-burg, expecting to make his first call at Crestline, in Cherokee county, and when he reached a point eight and one-half miles south of Pittsburg, he ran into an electric wire which had been thrown across the road in a storm, and was killed.
The contention of the defendant is that his death did not arise out of and in the course of his employment, in that he was on his way to assume the duties of his employment but had not reached the first stopping place on the trip. The first town that he was to make that day was Crestline, which was about sixteen miles from Pittsburg. It is insisted that Pittsburg, his home, from which he was traveling, although in the county of Crawford, was not one of the towns he was to make, and that he was not required to live at Pittsburg, where the plant is located. The orders that were taken by him were reported to the packing company by telephone, and no direct evidence was produced as to his going to the office of the plant when he turned in the money collected and made settlements with the defendant packing company. It was shown that the pay roll closed on each Saturday and the workmen were paid the following Tuesday. The evidence is that at all times when traveling in his district he was under the supervision of his employer. Since he was a traveling salesman in a designated territory, the traveling was a part of his duty, and he was at liberty to select his course in going from one store to another within that territory. The commissioner found that such a salesman is a necessary part of the trade or business of the packing company, and is as necessary a part of selling meat products and collecting the price of them as an employee who works in the plant slaughtering animals. The defendants emphasize the fact that Kennedy was not required to live in Pittsburg, that he could have lived in any one of the towns where there were stores that he visited. He chose to live in Pitts-burg, where no calls were to be made on the trade and therefore could not be regarded as being in the course of his employment. It is also contended that the injury and death were caused by an act of God, that the storm which blew down the poles carrying the high-powered electric wires produced his death, was a common hazard, had no causal connection with his employment and should be regarded as an act of God, something that no human foresight could anticipate or prevent. On the other hand, it is said that the violent storm which blew down the poles carrying the wires had ceased and his death was caused by wires of high voltage thrown to and left on the highway, and in no sense was caused by the violence of nature; that the deceased lost his life through a human agency, namely the electric wires and the poles carrying them.
It is claimed that the defendant was operating under the workmen’s compensation law, and that Kennedy was one of its employees, who solicited orders for its products in an allotted territory and made collections from its customers. Being a traveling salesman, he was required to use the highways in calling on customers within the zone assigned to him. In that zone were the towns already mentioned in Crawford and Cherokee counties, Kansas, Ottawa county, Oklahoma, and Jasper county, Missouri, and he was traveling towards Crestline, in "Cherokee county, when he was injured and killed. Was he within the allotted zone of his operations and in the course of his employment so as to make the injury a compensable one? If his duties as traveling salesman re~ quired him to travel over the highway where he was killed, with its well-known hazards, one of which he encountered, the action should be regarded to be in his working place and in the course of his employment. (Tierney v. Telephone Co., 114 Kan. 706, 220 Pac. 190.) It is contended that he was not in the allotted territory until he reached Crestline, the first town he was to visit upon that day. It is claimed that he could choose his own place of residence, and that if he chose a residence out of his territory and was on his way to assume the duties of his employment at the time of the accident, the accident cannot be regarded as arising out of and in the course of his employment, any more than could a mechanic whc was injured while on his way to his shop, where he was employed to work, be regarded as entitled to compensation. The boundaries of Kennedy’s allotted territory were not definitely fixed, nor were the highways over which he was to travel in the performance of his duty prescribed. For some reason, whether for his own convenience or that of his employer, or that of both, he made his home in Pitts-burg, the place where defendant’s plant was located. An assistant to the president of defendant packing company,- and the manager, testified that he had allotted the territory to Kennedy and given him a route sheet, showing the town's- to be visited, and that the usual time for him to start on trips was about seven-thirty in the morning, and to return to Pittsburg from his work from five to seven in the evening, depending upon the progress of his work during the day. The salesmen were required to report to the defendant packing company while at work, phoning in orders taken, and the manager said, “we want to know where they are at all times of the day,” and that while traveling they are under the supervision of the company. He further stated that in the performance of his duties for the company Kennedy used the highway on which he was killed. He fiad seen Kennedy the Sunday before the accident, but couldn’t remember seeing him on Tuesday, pay day, which was the day preceding the accident. It is argued that as he was not required to call on customers in Pittsburg, that place was not within his territory, but it appears that he was expected to go from that place in the morning and return to it in the evening. He could and did phone to the plant orders when taken, but he could not phone in the money collected from customers. It may be assumed that he went to headquarters and made settlements with the defendant of the money received and of his expense account, which was not to exceed $22 per week, and receive his salary, $33 per week. There is no direct testimony as to the transactions of the parties in Pittsburg, but in the nature of the business that would be the place where consultations would be had, instructions given, where the money collected would be paid in and settlement made for expenses incurred and salaries due. The manager spoke of the fact that he had not happened to see Kennedy the last pay day, as if it was the custom for him to come there for payment. In her testimony Ken nedy’s daughter said that “he left Pittsburg on the morning of his death at seven-fifteen, and did not go to the plant that morning,” as if he had gone on other occasions. Under the circumstances of the case, we think Kennedy should be regarded as within his territory and in the course of his employment when the accident occurred. His employment differs from one employed in the factory who might have been injured on his way to the factory where his work was to be performed. In such a case the worker would not be entitled to compensation. Kennedy’s work required' that he travel from place to place in the allotted territory in an automobile, calling on regular customers and in seeking to procure new ones. It was left to him to determine the roads he would travel over in doing his work. He was expected to keep in touch with the plant in Pittsburg and to promptly phone in orders obtained. While out canvassing the territory he was under the supervision of the defendant and subject to its orders. The place of work was not the boundaries of towns where orders were solicited or collections made. All contemplated that travel was necessary for the performance of his duties, and that it would take him through the counties named. If he had lived in Opolis and started from there to Crest-line, he would certainly have been within his territory, and yet Opolis, where he was required to make a call, although not on a straight line, was between Pittsburg and Crestline, and Pittsburg is much nearer to Opolis than to Crestline. Instead of starting to Opolis on the fatal trip he intended to make his first stop at Crest-line and had gone out of Crawford county, which was part of his territory and about one-half way to Crestline, when he was accidentally killed. When that occurred he was in the territory allotted to him, was under the supervision and control of the defendant and was carrying on the business in the usual way — the way in which it had been carried on for years.
' We find no merit in the claim that the injury is not compensable on the theory that the death of Kennedy was caused by an act of God. There had been a storm the night before the accident, which had blown down poles and wires, but the storm had ceased and the poles and wires had not been removed from the highway. Kennedy was not killed during the storm or exclusively by the' violence of nature. He came to his death by coming in contact with' high-voltage wires, a human agency or rather an instrumentality of human agency. (Lewis v. Street Railway Co., 101 Kan. 673, 168 Pac. 856; Note in 13 A. L. R. 974.)
Although there is a contrary contention, it cannot be held that there was no causal connection between the employment of Kennedy and the injury. It is said that the hazard was one common to all persons using the highway. His work involved daily traveling over the highways in the performance of his duties and it became his place of work. His employment enjoined upon him traveling from place to place within his territory almost continuously in the discharge of his duties. He was using the highway in his employer’s service when he was injured and was much more exposed to its hazards than people generally. We think that the service and injury were clearly an incident of his employment. (Pegg v. Postal Telegraph-Cable Co., 129 Kan. 413, 283 Pac. 58, and cases cited; Capital Paper Co. v. Conner, 81 Ind. App. 545.)
Nor can we hold that Kennedy was engaged in interstate commerce or in commerce of any kind in his employment with defendant so as to be excluded from the benefits of the compensation act.
The judgment is affirmed.
Jochems, J., dissenting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Ida M. Allen was struck by a motor truck driven by an employee of J. W. Taylor, over the Golden Belt highway, and from the injury sustained she died almost instantly. Roy Y. Stotts, the administrator of her estate, brought this action against Taylor, charging that the injury to and death of Mrs. Allen was the result of the negligence of the defendant. Defendant denied the allegations of negligence on his part and alleged that the injury and death of the deceased were due to her own negligence. The verdict of the jury was in favor of plaintiff, in which damages to the amount of $5,000 were awarded against the defendant, and from the judgment rendered thereon defendant appeals.
Among the facts, about which there can be little controversy, it appears that Ida M. Allen was a widow about forty-two years of age, and left surviving her three children, one eighteen years old and married, another fifteen years old, and still another eight years old. She was employed at a cement plant about one mile from Bonner Springs, which was her home, and she walked back and forth daily from the plant to the town over the Golden Belt highway. On the evening of March 22, 1927, she left the plant with many others and started west towards her home, walking on the south edge of the pavement, which was eighteen feet wide. The truck of defendant was coming from the west tooting a horn with the cut-out open making much noise and, it being daylight, the truck was plainly visible. Her attention was called to the coming truck by Mrs. Morris, who was walking by her side on the dirt path along the side of the slab while the deceased walked on the edge of the slab. Mrs. Allen made no response to the suggestion of Mrs. Morris, but could not help but see and hear the approaching truck, which was traveling at a rate which some of the witnesses put as low as twenty-five miles an hour, and others at a rate of thirty-five miles an hour, over the highway on which many pedestrians were walking at the time from the plant to their homes in Bonner Springs. It appears that a Dodge automobile carrying relatives of the deceased was traveling from Kansas City towards Bonner Springs and as they came near to Mrs. Allen, the horn was sounded and the car stopped on the north side of the pavement opposite Mrs. Allen, with a view of picking her up and taking her home in the Dodge car. Here the testimony is in dispute. Some testimony is to the effect that she turned and looked towards the Dodge car on the other side of the pavement, but did not start towards it. Others testified that she turned and took a step or two across the pavement when the coming truck was close to her, and which struck and killed her. The case must turn largely upon this testimony and was necessarily a question of fact for the jury. The plaintiff urges that deceased was standing upon the edge of the slab occupying about a foot of it; that she did not move across the pavement; that there was a space of nine feet left between her position and that of the Dodge car, which had stopped to pick her up; that the driver of the truck, who admits that he saw the deceased, came on at an excessive rate of speed and in view of the great number of pedestrians traveling towards Bonner Springs, and the traffic on the road, with plenty of room to pass between Mrs. Allen and the Dodge car standing on the other side of the road, recklessly drove on and against her, while she was standing on the edge of the slab. The defendant contends that Mrs. Allen had been warned by her companion of the approach of the truck and gave no heed to the warning, that she did not step off the slab and thus care for her own safety, but on the other hand made a sudden turn and walked across the slab a few steps without looking up or down the road, stepping immediately in front of the truck when a collision was inescapable, and must therefore be held guilty of contributory negligence. The special findings on this proposition follow:
“1. Just before the accident were Mrs. Ida M. Allen, deceased, and Nora Morris, walking west in the path south of the slab highway? A. No.
“2. Did an automobile going west, stop and park on the slab highway nearly opposite Mrs. Ida M. Allen, deceased, and Nora Morris? A. Yes.
“3. At the place where this automobile was parked on the slab highway, did Mrs. Ida M. Allen, deceased, start toward the automobile that was parked on the highway? A. No.
“4. While Mrs. Ida M. Allen, deceased, was walking on the south side of the highway, was she in position, if she had looked, to see the truck eastward bound coming toward her? A. Yes.
“5. If Mrs. Ida M. Allen had looked, was there anything to obstruct her view from seeing the truck coming from the west, which struck her? A. No.
“6. If you answer the, above question in the affirmative, state what, if anything, obstructed her view from seeing the truck coming towards her from the west. A.-.
“7. Did Mrs. Nora Morris notify Mrs. Ida M. Allen, deceased, of the truck coming towards her, from the west, before she was struck? A. Yes.
“8. Did Mrs. Allen, deceased, pay any attention to Mrs. Morris’ warning of the approaching truck from the west? A. Yes.
“9. Was the accident to Mrs. Ida M. Allen caused by her turning and starting to go towards the automobile which was parked on the highway? A. No.”
Defendant insists that his demurrer to plaintiff’s evidence should have been sustained and that at the close of all the testimony the findings should have been set aside and judgment entered for defendant upon his motions.
There were allegations in the petition to the effect that the driver of the truck was inexperienced, that his eyesight was defective, and that the truck veered to the south of the slab just before it struck the deceased. No proof on these grounds was produced and the case was submitted upon the other grounds alleged. There appears to be evidence to support the findings and verdict of the jury, and conflicts in the evidence when settled by the triers of the -facts are conclusive here. The evidence presented at least a fair question of fact that the driver of the truck drove it over the crowded highway and against Mrs. Allen when there was opportunity to avoid the collision. If the evidence of the plaintiff is accepted, there was ample room between the point where Mrs. Allen stood and the Dodge car on the other side of the road to safely pass her. If she was standing still on the edge of the pavement and there was room for him to pass and avoid striking her, it would in the absence of other conditions be a plain case of negligence on the part of the driver. The testimony of plaintiff was accredited by the jury and its findings and verdict have been approved by the trial court. The principal contention of defendant is that Mrs. Allen walked in front of the truck, and if that was an established fact she would have been guilty of contributory negligence. It is argued that she had her senses of sight and hearing, had warnings from her companion that the truck was approaching and could not have helped seeing it, if she had looked, and yet that she left a place of safety on the edge of the pavement and suddenly stepped into the path of the truck.
It is not contended that it was her duty to turn out on the untraveled part of the road, as defendant says that she left a place of safety and walked into a place of danger. It is conceded that pedestrians and drivers of vehicles have equal rights on the highway but, of course, each must use reasonable care under existing circumstances and exercise his right with due regard to the rights of others using the highway. There may be cases where the pedestrian should step out. of the traveled part of the road for his own safety, but under the evidence of plaintiff the deceased was not obliged to leave it, as the pavement was wide enough to afford room for the truck to pass without touching her. In a case where a pedestrian was struck by an automobile, on a highway, it was said:
“And if the road (or the traveled portion) is so narrow that one or the other must get outside of it in order that the car may pass, doubtless this should be done by him who is on foot, because he can do it the more easily. But where the beaten track is wide enough for several vehicles to pass (as seems to have been the case here) there can be no hard and fast rule that pedestrians must get completely outside of the highway or of the traveled portion of it.” (Eames v. Clark, 104 Kan. 65, 71, 177 Pac. 540. See, also, note 51 L. R. A., n. s., 992.)
Upon the evidence, the matter in dispute whether deceased exercised due care in the situation and the existing conditions or was guilty of contributory negligence, was a fair question for the determination of the jury. (Wyatt v. Tanquary, 101 Kan. 581, 168 Pac. 858; Kelly v. Vucklich, 111 Kan. 199, 206 Pac. 894; Nicholas v. Wiles, 126 Kan. 687, 271 Pac. 307; O’Dowd v. Newnham, 13 Ga. App. 220; Towle v. Morse, 103 Me. 250; Stephenson v. Parton, 89 Wash. 653; Schock v. Cooling, 175 Mich. 313; Diamond v. Cowles, 174 Fed. 571.)
There is complaint of the conduct of counsel for plaintiff in his argument to the jury and although not emphatically urged, is said to have been prejudicial. In closing his argument counsel for plaintiff said to the jury:
“I just want to say one other thing in conclusion. The $10,000 we have asked in this case is a pitiful thing for these children; $10,000 will never restore that mother, nor can the defendant, to these poor children, because a mother is more important than you or me to the rearing of a family and the loss to them is incalculable.”
Objection was made by the defendant that the remarks are prejudicial where he says:
“A mother is more important to a family than the jury are or he is.”
Counsel for plaintiff responded:
“Did I put it that way. ... I say that the mother in the home of each of you men, and the mother in my home, is more important to the rearing of our children and to bringing them up as good citizens and good Christians, than any one of you or than me, and that every one of us could be missed from the home and would be glad to go from the home, if the mother could stay there to rear those children to manhood and womanhood.”
Another objection was urged and counsel responded:
“It is said for the purpose of laying before you a truth that every man here who has the heart of a citizen, and father, and the head of a family realizes is the truth.”
The objections were overruled.
It is only necessary to say that we do not regard the remarks to be so out of the line of common understanding as to have affected the judgment of jurors or prejudicially tainted their verdict.
Some objections were made to testimony received and to instructions, but upon an examination of them we find nothing approaching error.
The judgment is affirmed.
Jochems, J., dissenting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by a member of a fraternal insurance society alleging mismanagement, abuse and actions by the directors and officers of the society beyond the authority conferred upon them by law, or the charter, causing and calculated to result in serious injury to the society, and alleging that the board of directors and acting managers and officers were acting in their own interests in misappropriation of corporate funds. It was specifically charged that throughout the years from 1914 to July, 1925, certain officers and members of the advisory board were paid salaries, or per diem, without such salaries having been fixed by the governing body of the association, as provided by chapter 231 of the Laws of 1927, § 40-705. The plaintiff seeks an accounting of the money alleged to have been wrongfully and illegally paid to the individual defendants named and for judgment that they pay and return the same to the society. The trial court sustained a demurrer to plaintiff’s petition, and he has appealed.
Our statute relating to fraternal benefit societies (R. S. 40-716, as amended by chapter 231 of the Laws of 1927, § 40-713) provides, in substance, that when such a society, or its officers, shall exceed its powers, or conduct its business fraudulently, or fail to comply with any of the provisions of the statute relating to such society, and such acts come to the knowledge of the commissioner of insurance, he may investigate the society and exclude it from doing business in the state if defects found to exist are not corrected, and on his request an appropriate action shall be brought by the attorney-general, and that no injunction will be granted or receiver appointed by any court against such society except on application of the attorney-general at the request of the commissioner of insurance. The gist of plaintiff’s complaint is that the officers of the society exceeded their powers and failed to comply with the provisions of the statute relating to such society.
In previous actions in this court it has been held that a member of a fraternal beneficiary society cannot maintain an action such as this; that all power to maintain suits of this character is withdrawn from such members and placed in the commissioner of insurance and attorney-general. (Albach v. Fraternal Aid Union, 100 Kan. 511, 164 Pac. 1065; Cavlovic et al. v. Croatian Beneficiary Association, 117 Kan. 545, 232 Pac. 598; Cavlovic v. Baker et al., 118 Kan. 412, 234 Pac. 1009.) The holding of the federal court construing this statute is to the same effect. (Soptich v. St. Joseph Nat. Croatian Beneficiary Ass’n, 34 Fed. [2d] 566.)
Appellant cites Haynes v. Fraternal Aid Union, 34 Fed. (2d) 305, where in a similar action a motion to dismiss the bill was overruled in so far as it asked for an accounting; but on an answer being filed, alleging that the matters complained of had been approved by the insurance department of the state, and also authorized and approved by the supreme lodge of the society, the motion of defendant for judgment on the pleadings was sustained by an order of December 24, 1929.
Appellants cite and rely on Folts v. Globe Life Ins. Co., 117 Neb. 723. Without reviewing that case in detail it is sufficient to say that it involves an entirely different question. Moreover, the record disclosed that the procedure complained of in the action had been submitted to and approved by the insurance department and attorney-general of the state. In this case there is no allegation that any complaint had ever been made to the insurance department or attorney-general of this state of the alleged irregularities sought to be corrected by this action.
The trial court correctly held that the plaintiff had no capacity to maintain this action, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Jochbms, J.:
The defendant was convicted of the offense of unlawfully having intoxicating liquor in his possession, and appeals' to this court.
He sets forth two specifications of error. (1) That the verdict returned by the jury as to the first count was not sustained by sufficient evidence, and the judgment of the court was excessive. (2) That the verdict of the jury on the first count was contrary to the court’s instructions.
The evidence showed substantially the following: That on two different occasions the officers of Harper county went to the home of the defendant and searched the premises, the first time on August 30, 1929, and again on September 24, 1929; that on each trip some empty bottles were found on the premises; that on the first date the defendant and his family were away from home and the officers found three bottles of liquid commonly known and referred to as "home brew” in a little back room which was used by the defendant as a wash room. That at the same time they found a number of empty bottles and a large kettle, and in the weeds some distance from the house they found a rubber hose and a funnel. The rubber hose was of the size commonly used for a siphon. Some of the liquid found was sent to a chemist at Wichita, who testified at the trial that he made an analysis and that it showed nine per cent alcohol.
The defendant placed several witnesses on the stand to establish his good reputation in the community, and to refute this the state put on the sheriff of the county, who testified that the defendant’s reputation was bad; that “his reputation is that he peddles booze all the time.”
The defendant contends that the above evidence was insufficient to sustain a conviction of having liquor in his possession under the Kansas bone-dry law, and argues that it was not shown by the state that the possession, as detailed in the foregoing, was accompanied by an unlawful intent, within the meaning of the law, to appropriate, sell or dispose of the same, or that the defendant can be charged with a mentally unlawful.and illegal intent to barter, sell, appropriate or otherwise dispose of intoxicating liquor. As to this argument it is only necessary to say that the appellant was convicted on the possession count only. The home brew was found in the dwelling house of the defendant, which house was in his possession and under his control.
The defendant argues further that because he did not claim the three bottles of home brew, because he testified that he did not even know that they were on the premises and was away from home when the raid was made, there was no knowledge shown on his part that he was in actual possession of this liquor.
In State v. Carl, 124 Kan. 277, 259 Pac. 680, this court said:
“Extended argument concerning the sufficiency of the evidence to show that the defendant had possession of the jugs and that he knew what was in them cannot serve any good purpose. It was enough to warrant the jury in finding the defendant guilty of the possession of the intoxicating liquor. Any reasonable doubt concerning that matter was for the jury, not for this court.” (p. 278.)
The defendant argues strenuously that the penalty which the court assessed — a fine of $200, a jail sentence of sixty days and costs of the case amounting to $280.40 — was excessive and cannot be sustained under the evidence in the case.
R. S. 21-2101 provides what the sentence shall be for conviction of violation of the prohibitory liquor law as follows:
“Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be fined in any sum not less than one hundred dollars nor more than five hundred dollars and be imprisoned in the county jail not less than thirty days nor more than six months.”
It is to be observed that the statute makes the penalty to be imposed discretionary with the trial court, the discretion of the court being limited only by the minimum and maxiipum sentences provided by the statute.
The defendant cites numerous decisions of the state of Oklahoma in support of his contention that the sentence was excessive and should be modified, but these decisions do not appear to follow the general rule. We have been unable to find that the precise question involved here has ever been directly passed upon by this court. The general rule is laid down in 2 R. C. L. § 177, as follows:
“In many jurisdictions instead of the punishment in criminal cases being fixed by the jury it is left to the trial judge, and as a general rule the appellate court will not disturb the sentence as excessive, provided it is within the limits prescribed by law for the exercise by the trial judge of his discretion and is not the result of partiality, prejudice, oppression or corrupt motive.”
If the record showed no evidence other than the mere finding of the three’ bottles of home brew then it might be argued with some reasonable force that the sentence was excessive and more severe than is usually imposed in such.cases, but it must be remembered that in this case, in addition to the finding of the three bottles of home brew, there was the damaging testimony of the sheriff to the effect that the defendant was reputed to be a bootlegger. This presented a situation which was testified to in the presence of the trial judge. He conducted the trial, heard all the witnesses, saw them upon the stand and observed their demeanor, and in the absence of any showing of “partiality, prejudice, oppression or corrupt motive,” this court will not attempt to set up its judgment in place of that of the trial court by decreeing that the sentence was excessive.
We find no reversible error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to cancel an oil and gas lease and to quiet title to real estate. A demurrer to plaintiff’s evidence was sustained, and plaintiff appeals.
Omitting the formal parts, plaintiff Grace D. Baker, in her petition filed April 10, 1953, alleged she was the owner in fee simple of the real estate in question. In June, 1948, as lessor, she executed and delivered to defendants E. J. and C. J. Huffman, as lessees, an oil and gas lease covering the property in question. The portion of the lease set out in her petition reads as follows:
“. . . It is agreed that this lease shall remain in force for a term of 10 years from this date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee in paying quantities. . . . (Italics supplied.)
“If no well be commenced on said land on or before the 1st day of September, 1948, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor or to the lessor’s credit in the First National Bank at Chanute, Kansas, or its successors, which shall continue as the depository regardless of changes in the ownership of said land, the sum of Eighty and no/100 ($80.00) Dollars which shall operate as a rental and cover the privilege of deferring the commencement of a well for 12 months from said date. In like manner and upon like payment or tenders the commencement of a well may be further deferred for like period of the same number of months successively. And it is understood and agreed that the consideration first recited herein, the down payment, covers not only the privileges granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred.”
Plaintiff further alleged that defendants Huffman assigned their interests in the mentioned lease to defendants Leo C. Ellis, E. Melva Brown and Paul J. Brown; that defendants drilled one producing oil well on the lease, but they failed to produce or market any oil therefrom since April 4, 1951; that no other drilling had been done and no rentals had been paid since the drilling of the initial well, and by virtue of the terms and provisions of the lease as above set forth, the lease had expired by its own terms upon cessation of production, and that the lease had been null and void since April 4, 1951; that on May 20, 1952, plaintiff made written demand upon the defendants for a release of record of said lease, and that defendants failed to comply therewith. The petition closed with a prayer for cancellation of the oil and gas lease and the quieting of her title as against all claims of defendants in and to the real estate in question.
Defendants by way of answer admitted the execution of the oil and gas lease and the terms as set forth by plaintiff, the assignment to them by defendants Huffman, and otherwise denied generally the allegations of the petition. The action was subsequently dismissed as against defendants Huffman. The case proceeded to trial on the pleadings, stipulations of the parties, and oral testimony produced by the plaintiff. Defendants by their answer admitted the execution and delivery of the lease as set forth in the petition, and it was stipulated that the initial and only well drilled upon the leasehold was completed and equipped as a producer on July 28, 1950; that plaintiff received royalties from the oil produced from the well, to and including April, 1951. The evidence disclosed that a small amount of oil was produced from the well between April, 1951, and August, 1953, none of which was marketed, and plaintiff received no royalty. In August, 1953, defendants, in attempting to increase production, sandfracked the well by using approximately 125 barrels of oil in the process, with the production for the month being increased to 147 barrels, which was approximately 22 barrels in excess of the 125 barrels pumped into the well. The well was pumping at the time of the trial of this action, September 16, 1953. On this record, the court sustained defendants’ demurrer to plaintiff’s evidence, and it is from this ruling plaintiff appeals.
It was plaintiff’s contention that her evidence disclosed the lease had expired by its terms by reason of defendants’ failure to produce oil in paying quantities after April, 1951. Unless the lease in question had expired by its own terms, the trial court did not err. Plaintiff’s theory of her case was clearly shown in her petition and brief. This was not an action for forfeiture of an oil and gas lease, nor for damages for the breach of contract where excuses of nonperformance might be pleaded, nor was it an action for cancellation of an oil and gas lease based upon a breach of an implied covenant to develop. The action was one to cancel the lease which, as alleged, had expired by its own terms because of the lessees’ failure to produce oil and gas in paying quantities continuously during the primary term. Plaintiff argued that the purpose of making an oil and gas lease is for the exploration, development and production of oil and gas, and when the lessee elects to begin development and obtains oil and gas, then production must continue in paying quantities if the lease is to remain in force, irrespective of whether the primary term has expired. It is true that once the lessee of an oil and gas lease undertakes to develop the leased premises, the implied covenant to fully develop the leased premises with reasonable diligence applies even during the primary term. (Berry v. Wondra, 173 Kan. 273, 246 P. 2d 282.) Defendants recognize this well-established rule of law. However, plaintiff has neither alleged nor shown by her evidence that defendants have breached that covenant. In her action, plaintiff neither prayed for cancellation of the undeveloped portion of the lease nor for an order requiring lessees to develop the lease because of breach of the implied covenant to develop. Her contention was that the lease expired by its own terms, and the prayer was for complete cancellation of the lease on that theory. It was not contended nor does the evidence show any de mand on defendants for additional development during the primary term of the lease, nor is there any evidence defendants were unwilling or had refused to develop the lease fully.
Mineral deeds are to be construed in accordance with the intent and purpose of the parties as gathered from the examination of the entire instrument. (Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899.) With this rule of law in mind, we will examine the lease. Only a portion of it was set forth in the record, as hereinbefore related. It provided that it should remain in force for a period of ten years from its date, and as long thereafter as oil and gas, or either of them, were produced from said land by the lessee in paying quantities. The primary term of the lease ran from June, 1948, to June, 1958. During this term, lessees could either pay the delayed rentals as provided in the lease, or explore and develop the leased property in lieu thereof. The purpose of the “thereafter” clause in the lease was to prescribe conditions which must exist within or at the end of the exploratory period, upon which the lease may be continued beyond the primary term, and to prescribe conditions which must exist after the end of the exploratory period, upon which the lease may continue indefinitely. (2 Summers on Oil and Gas, Perm, ed., 126, § 293.) We find nothing in the contract providing for a forfeiture or cancellation of the lease for the failure of the lessees to produce oil and gas in paying quantities during the primary term of the lease. The failure of lessees to produce or failure, alone, of production in paying quantities during the primary term of the lease did not result in a defeasance ipso facto. To hold otherwise would be to read into the lease express provisions which did not exist, and this we cannot do. It cannot be said, in the instant case, that the trial court erred in sustaining defendants’ demurrer to the plaintiff’s evidence, and in holding that the lease had not expired by reason of its own terms upon the cessation of production of oil and gas in paying quantities during the primary term of the lease.
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The opinion of the court was delivered by
Parker, J.:
This is an action involving the disposition of taxes paid under protest in which the taxing district appeals from a judgment directing the return of the taxes paid by the protesting taxpayer.
There is no controversy respecting the preliminary events on which the disposition of the appeal depends. In a general way it may be stated that, as authorized by G. S. 1949, 79-2005, the plaintiff, Rural High School District No. 3, brought two actions in 1952 against the county treasurer of Pawnee county in the district court of that county to require her to disburse money, then in her hands as such official, which had been paid to her under protest as the result of a tax levied and assessed against certain real estate, belonging to one Jay T. Smith, for the year 1951 on the theory the taxing situs of such real estate for that year was within the district. Case No. 8046 was brought to require the disbursement of taxes so paid on such real estate for the first half of 1951 and case No. 8067 for the last half of that year.
Neither is there dispute about what took place after the commencement of the two actions, the pleadings of which, it should be pointed out, are identical in form and differ only as to statements respecting the nature and the amount of taxes involved. Following the filing of the petition the taxpayer moved for and obtained an order allowing him to intervene in the action as a party defendant. Subsequently he filed answers to which the plaintiff replied. So far as the record discloses the defendant county treasurer made no appearance in either action.
Nor would any useful purpose be served by detailed reference to the pleadings filed by the respective parties. It suffices to say they join issue on all questions essential to a determination of the question whether the impounded money in the hands of the county treasurer should be disbursed by her for taxing purposes or refunded to the intervening defendant on the ground his property had no taxing situs in the plaintiff’s district for the year 1951.
When the two actions were called for trial the district court, recognizing the issues raised by the .pleadings were identical, made an order consolidating them for all purposes essential to hearing, trial and judgment. Thereupon the parties announced they had entered into a stipulation as to the facts and requested that the consolidated cases be submitted on such stipulation and upon the written briefs and arguments to be supplied by the parties. When this request was "granted the cause was so submitted and judgment was ultimately rendered decreeing that the intervening defendant’s real estate had no taxing situs in District N°- 3 on March 1, 1951, and directing the defendant county treasurer to refund his protested taxes. This appeal followed.
Except for a decision of the State Superintendent of Public Instruction (attached to the petition) relating to a change in the boundaries of the involved district and a ruling by the State Commission of Revenue and Taxation in connection with the protested taxes paid by the appellee, referred to in the stipulation of facts, and two other matters to be presently mentioned, such stipulation completes the existing factual- picture, discloses all that was before the trial court at the time of the rendition of the judgment, and reveals all matters essential to a disposition of the appellate issues involved. For that reason it should be quoted at length. Omitting formal averments, and certain inconsequential portions thereof, it reads:
“1. Plaintiff is now and for many years has been organized as a Rural High School District in Pawnee County, Kansas, and operating a Rural High School at Zook;
“2. Defendant Anna Maye Baker is the duly elected, qualified and acting county treasurer of Pawnee County, Kansas and has no interest in the outcome of issues joined between plaintiff and the intervening defendant, Jay T. Smith, except to refund the protested tax money involved or to distribute it to plaintiff school district in accordance with the final judgment rendered herein;
“3. The defendant intervening herein, Jay T. Smith, is an owner of a part of four sections ol land in Pawnee County, which prior to October 2, 1950 were within the territory of Common School District No. 31 of Pawnee County, and within the territory of plaintiff, Rural High School District No. 3 of Pawnee County.
“4. On October 2, 1950 the State Superintendent of Public Instruction, having acquired jurisdiction by an appeal, ordered said- Coipmon School Distóct No. 31 annexed to the Macksville Common School District, Joint 7-R, Stafford and Pawnee Counties, which common school district maintains a high school;
“5. One result of the annexation of Common School District No. 31 to Macksville (Joint 7-R, Stafford and Pawnee Counties) was that the above mentioned four sections of land were thereby included in overlapping territories of a rural high school district, plaintiff herein, and a common school district maintaining a high school. This situation was noted and discussed at the time of the hearing on the appeal on October 2, 1950:
“6. The land overlapped, as above mentioned, is described as follows: ■ (description omitted.);
“7. On February 7, 1951, the intervening defendant, Jay T. Smith, and six other residents and householders or owners of said four sections of land made application to the County Superintendents of the Counties of Stafford and Pawnee to change the boundary of plaintiff rural high school district to exclude said real estate;
“8. Said application was heard at Larned on February 27, 1951, and denied, due to failure of the two county superintendents to agree on the requested change of boundary;
“9. An appeal from said denial was heard by the State Superintendent of Public Instruction at Kinsley, Kansas, on April 25, 1951, and an order was issued by said superintendent on May 15, 1951 granting tire application for change of boundary;
“10. Plaintiff rural high school district’s tax-levy of 6.80 mills against all property having a tax situs in the territory of plaintiff was levied against the above described four sections of land for 1951 taxes;
“11. The total school levy against the four sections of land for Macksville Joint 7-R and Zook Rural High as of March 1, 1951 was 16.01 mills. Other levies for a combination of common school and high school in Pawnee County were as follows: (Levies in districts not involved omitted.)
“12. Intervening defendant, Jay T. Smith, paid the first half of his 1951 taxes under protest, and the ruling of the State Commission of Revenue and Taxation in favor of protestant is attached to plaintiff’s petition in Case No. 8046 as ‘Exhibit B’;
“13. Intervening defendant, Jay T. Smith, paid the last half of his 1951 taxes under protest, and the ruling of the State Commission of Revenue and Taxation in favor of protestant is attached to plaintiff’s petition in Case No. 8067 as ‘Exhibit B’.”
With reference to matters referred to as not set forth in the foregoing stipulation it should be stated:
1. The appeal decision of the State Superintendent, mentioned in paragraph 9 of such stipulation, points out that the property attached to the Macksville district (described in paragraphs 3 and 4 of the stipulation), overlapped high school territory; that the date of the order resulting in such attachment precluded the application of tax levies for the current fiscal year against such property; that correction was suggested before the beginning of another tax year; that the present procedure was in fulfillment of that suggestion. It then states in substance that the petition of the taxpayer (for our purpose the present appellee), to change the boundaries of District No. 3 (appellant herein), by transferring the involved real estate to the Macksville high school district, filed with the county superintendents of Stafford and Pawnee counties on February 7, 1951,' and heard on February 27th of that year, should have been granted by the county superintendents and therefore it was granted by the State Superintendent of Public Instruction as presented with direction to the proper school authorities to record the necessary boundary changes in their respective offices.
2. The orders of the State Commission of Revenue and Taxation, referred to in paragraphs 12 and 13 of such stipulation, are in substance to the effect that the protesting taxpayer timely filed his application with the county superintendents to remove his property from District No. 3 and that inasmuch as his application was eventually approved by the State Superintendent his property had no tax situs in District No. 3 on March 1, 1951. They also direct the county treasurer to refund the protestant all taxes here in question.
3. The parties concede the appellee’s land was a part of the four sections involved in the appeal before the State Superintendent of Public Instruction and State Commission of Revenue and Taxation, that it was taxed for high school purposes in the Macksville school district for 1951, and that all taxes levied against it that year in such district for such purposes were paid by him without protest.
4. The notice of appeal from the failure of the two county superintendents to agree on what should be done with the application referred to in paragraphs 7 and 8 of the stipulation, which brought that matter to the State Superintendent of Public Instruction for appellate review, expressly requested that the application as filed be approved and that the decision with respect thereto be made retroactive to February 27, 1951, in order that unequal, unfair and unjust taxation of the involved property be avoided.
In a general way it may be said the burden of all arguments advanced by appellant as grounds for reversal of the judgment is that for taxation purposes the transfer of the involved real estate from its district to the Macksville joint district did not become effective until May 15, 1951, the date on which the State Superintendent of Public Instruction directed that action, hence such real estate remained a part of its territory for such purposes until the last day of February, 1952, which included the tax year of 1951, under and by virtue of the provisions of G. S. 1949, 79-1807, which read:
“Any alterations, additions to, or changes in, the boundaries of any school district, municipality, or body politic of the state of Kansas, made according to law, shall take effect for taxation purposes on the last day of February following: Provided, That the taxes due on November 1 next preceding the date said change takes effect shall be collected and distributed as before assessed and levied.”
The issues will be simplified and much time will be saved by stating, at the outset, that there is no dispute between the parties respecting the force and effect to be given the foregoing section of the statute. Each concedes, that under its terms, the tax situs of the real estate on March 1, 1951, is decisive of the lawsuit.
Specifically the first error assigned by appellant is to the effect that the State Commission of Revenue and Taxation in its orders, to which reference has heretofore been made, as well as the trial court, erroneously concluded that the appellee timely filed his application with the county superintendents to remove his property from the appellant district. In this connection appellant points out that appellee waited from October 2, 1950, until February 7, 1951, to file his application for a transfer of his land from the appellant’s district to the Macksville district, hence he did not file a timely application. Thus it appears this contention is actually founded upon the premise that in order to file a timely application for a transfer of territory appellee was required to do so under conditions which would permit an appeal to, and a decision by, the State Superintendent prior to the last day of February 1951. We are not called upon and therefore not disposed to labor questions pertaining to whose duty it was to initiate the transfer proceeding under the confronting facts and circumstances. It suffices to say that, as heretofore related, they are of such nature we have little difficulty in concluding the filing of his application was timely when it was presented in time to be heard by the two county superintendents, charged under the provisions of G. S. 1949, 72-3509 with the duty of giving it consideration, and that prior to that date any subsequent delay on appeal, occasioned by failure of such officials to render a proper decision as to the rights of the parties, does not make the petition vulnerable to the attack appellant now makes against it.
All remaining errors assigned by appellant as grounds for reversal of the judgment are predicated on the premise the trial court, which we pause to note was in conformity with the decision of the State Commission, of Revenue and Taxation, erred in holding that inasmuch as appellee’s application was eventually approved by the State Superintendent of Public Instruction the involved property had no tax situs in District No. 3 on March 1, 1951.
The first argument advanced on this point is that the State Superintendent’s decision on appeal is not to be construed as holding the order of that official was made effective as of February 27, 1951, the date on which the two county superintendents failed to agree and/or make any order on appellee’s request for the transfer of the involved real estate. The details of the findings made by such official in handing down that decision have been stated at length and need not be repeated. All that need be said respecting them is that when carefully analyzed, from the standpoint of this contention, we are convinced they not only warrant but compel a construction the decision was made effective as of that date.
Appellant’s next argument on this point is that even if the State Superintendent’s decision is construed as above indicated that official had no jurisdiction or authority to make an order retroactively removing property from the school district. Much could be said on the proposition that appeals from decisions of subordinate tribunals become effective as of the date of the decision from which the appeal is taken. But we need not labor or pass upon that question. Limited strictly to the situs of property for taxation purposes, following the alteration of school territory by the official vested with that final power and authority over such matters, we believe the answer to appellant’s contention on this point is to be found in our statute. Under the provisions of G. S. 1951 Supp. 72-838 (superseding G. S. 1949, 72-305, of similar import.),' applicable by virtue of G. S. 1949, 72-3509 to the disposition of appeals to the State Superintendent of Public Instruction from the failure of county superintendents to act on a petition to transfer territory from one rural high school to a joint school district maintaining a four-year accredited high school, the decision of such State Superintendent, when certified to the several county superintendents involved, becomes final and binding.
We are cited to and know of no decisions dealing directly with the point just determined. Nevertheless we believe our conclusion respecting it finds support in our decisions. See Rural High-School Joint Dist. v. Pope, 168 Kan. 45, 210 P. 2d 587, where we rejected a contention the attachment of school district territory is not complete until the appellate authority (herein involved) had rendered its decision. It would be strange indeed, if where — as here — no action is taken on a petition because of failure of two county superintendents to agree when they would have agreed, a different or inconsistent rule should prevail. In any event we refuse to subscribe to the theory, inherent in appellant’s position, that action on the part of a school district resulting in the failure of such officials to act on the involved application has the result of depriving the petitioning taxpayer of rights to which he was entitled on the date of the filing of his application.
In conclusion it should perhaps be stated we find nothing in the statutory provisions heretofore mentioned, or elsewhere in our statute, indicative of an intention on the part of the legislature to subject real estate to double taxation under the confronting facts and circumstances. In that situation we feel constrained to state this court is committed to the rule that unless expressly authorized by statute, because of peculiar circumstances and conditions war-ranting that action, the law of this state does not contemplate that real estate should be subjected to the payment of taxes by two separate and distinct taxing districts for the same purpose in any one year.
Other arguments advanced by appellant relating to error on the part of the district court in finding the appellee is entitled to have the protested tax money paid to him by the county treasurer of Pawnee County are all based upon the assumption the taxing situs of the involved real estate was within the appellant district on March 1, 1951. Since that issue has been determined adversely to its contentions such arguments require no further discussion or attention.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This appeal arises out of a judgment of final settlement of a decedent’s estate in the probate court.
The bondsman, a corporate surety, of the administrator, appealed in the dual capacity of principal and surety to the district court from a judgment of the probate court against the administrator. The guardian of three minors, beneficiaries in the will of their mother, Elsie R. Goddard, has appealed to this court from the judgment of the district court. We shall refer to the guardian as the appellant. Although the bonding company in its dual capacity is referred to in the briefs as appellees we- shall designate it as appellee.
The questions on appeal pertain to liabilities of the administrator and the consequential liability of his bondsman with respect to certain acts of the administrator and credits allowed to the latter for the support, maintenance and education of one of the minors, pursuant to the terms of his mother’s will. The administrator was the father of such child and the husband of Elsie R. Goddard, deceased. A property settlement had been entered into by and between the deceased and her husband approximately one month before her death. That settlement included real estate situated in the state of California.
The parties stipulated as follows:
“It is stipulated between all parties that the house in California was set over to Elsie Goddard in a property settlement with Donald R. Goddard who were then husband and wife, which was entered into previous to her death, that this California real estate was never listed in the inventory and appraisement or final accounting of Donald R. Goddard, but was sold shortly after Elsie Goddard’s death by Donald R. Goddard to a purchaser in California; that the record title in California was held in the names of Elsie R. Goddard and Donald R. God dard in joint tenancy with right of survivorship; that Donald R. Goddard, individually and in his individual capacity, subsequent to Elsie’s death, obtained a court decree from a California court, which decree terminated this joint tenancy and found that Donald R. Goddard was the owner of this real estate; then that Donald R. Goddard individually gave a deed to this property to a purchaser in California and received net proceeds in the amount of $8,654.03.” (Our italics.)
The parties also stipulated concerning the adjusted gross personal income of the administrator, other than in his official capacity, covering the years 1947 to 1952, inclusive.
The district court made findings of fact and conclusions of law which are appended hereto. They quite clearly reflect the facts out of which the controversies arose and the judgment rendered thereon.
The record presented discloses no direct attack by appellant on any finding of fact or conclusion of law or any indirect attack by motion requesting contrary findings of fact or conclusions of law. The motion for new trial makes no reference to the findings of fact. It raises only the question whether the judgment is supported by or is contrary to the evidence.
Appellee states no objection to any finding of fact was made in the district court and contends objections thereto made first on appellate review are not entitled to consideration. That is the rule. In this case the findings of fact and conclusions of law were made a part of the judgment. The appeal is from the judgment and the order overruling the motion for a new trial. If we could assume the instant motion for new trial challenged any of the specific findings of fact now complained of we would not be justified in disturbing them on the record presented which appellee insists is incomplete. Moreover, we cannot disturb them on the record presented if it be regarded as sufficiently complete.
Appellant filed no motion for judgment on the findings made by the district court. He does not now contend the findings made do not support the conclusions of law or that they require judgment in his favor. In any event we have no hesistancy in concluding they support the conclusions of law and the judgment rendered. Under the circumstances there is only one other subject which requires our further attention.
It is whether there is substantial merit in appellant’s contention appellee’s appeal to the district court was utterly void. As previously stated the instant appellee was the appellant in the district court. Appellee in that court filed a motion to dismiss the appeal on the grounds “no bond has been filed” and “that said bonding company had no legal right to appeal. . . .” The motion was overruled. Appellant in this court now argues only the first ground of the above motion.
The argument made is appellee, appellant in the district court, signed its own appeal bond as surety, which renders it void and the district court, therefore, did not acquire jurisdiction. The bond reads:
“Know All Men By These Presents:
“That we, American Bonding Company of Baltimore as principal and also as surety, are jointly and severally held and firmly bound unto the State of Kansas, in the 'amount of Five Hundred Dollars ($500.00), lawful money of the United States to tire payment of which well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns firmly by these presents.
[Here followed the ordinary provision which specified the condition of the obligation to be a prosecution of tire appeal without delay and liability for the judgment rendered against the administrator and for costs that might be adjudged.]
“In Witness Whereof, We have hereunto subscribed our names at Dodge City, Kansas, this 8 day of June, 1953.
“AMERICAN BONDING COMPANY OF BALTIMORE “BY /s/ Seymour Drehmer “Attorney in Fact “Principal and Surety”
The pertinent part of G. S. 1949, 59-2405, reads:
“The appellant, other than the state or municipality or a fiduciary appealing on behalf of the estate, shall file in the probate court a bond in such sum and with such sureties as may he fixed and approved by the probate court, conditioned that he will without unnecessary delay prosecute the appeal and pay all sums, damages, and costs that may be adjudged against him. (3) Whenever a party in good faith gives due notice of appeal and omits through mistake to do any other act necessary to perfect the appeal, the district court may permit an amendment on such terms as may be just.” (Our italics.)
Appellee informs us the sufficiency of the bond was fully discussed by the parties in the probate court, the court approved the bond and made an order to that effect. Neither the order nor the proceedings in the probate court on that subject is reflected in appellant’s abstract. Appellee also advises us the matter of the sufficiency of the bond was again fully discussed in the district court in connection with the instant appellant’s motion to dismiss the appeal in that court; that appellee offered to amend its bond by the addition of whatever surety or sureties might be desired if the district court deemed that necessary but that the court did not believe it was necessary under the circumstances of this case. Those proceedings are not disclosed by appellant’s abstract but appellant does not deny such proceedings were had in both courts.
Appellant concedes this court has held an appeal is not a complete nullity and may be amended where the appeal bond statute requires “good and sufficient security” even though the principal originally executed the bond alone, citing McClelland Bros. v. Allison, 34 Kan. 155, 8 Pac. 239; Ottawa v. Johnson, 73 Kan. 165, 84 Pac. 749; and Buxton v. Ford County Comm'rs, 170 Kan. 148, 223 P. 2d 734. Other cases to the same effect might be cited. He, however, argues that is not the rule where the statute requires a bond shall be signed by a “surety or sureties.” The contention is too broad. The appeal bond in the McClelland Bros, case, supra, required “at least one good and sufficient surety” (our emphasis) and was held to be amendable although only the principal had signed it. That decision was recognized in the Ottawa and Buxton cases, supra, although the bond required in those cases involved statutes requiring a bond “with good and sufficient security” in one case and “with sufficient security” in the other. In the Ottawa case the court said:
“It was held in McClelland Bros. v. Allison, 34 Kan. 155, 8 Pac. 239, that an appeal bond approved by a justice of the peace in a civil case, signed only by the parties against whom the judgment had been rendered, was not entirely void, and might be amended, although the statute (Gen. Stat. 1901, § 5354) required that it should be signed by ‘at least one good and sufficient surety.’ [p. 166.]
“It is said, and there appears to be no authority to the contrary, that ‘although the statute provides that recognizances shall be executed by two sureties, a recognizance is not invalid because executed by one only.’ (3 A. & E. Encycl. of L. 683. See, also, 2 Cyc. 922.) Upon the same principle it seems clear that a recognizance upon appeal, entered into by a defendant without any surety whatever, although it fails, to meet fully the requirements of the law, is not utterly void, but if approved and acted upon is effective to bind the signer and confer jurisdiction upon the appellate court.” (Our italics.) (p. 167.)
The foregoing statement was again quoted with approval in the recent Buxton case, supra, in which many of our former cases were carefully reviewed.
Appellant argues the general rule as stated in 11 C. J. S., Bonds, 401, § 9b, and in 9 C. J. 10, § 7, to which there is no exception, is that unless sureties are required by the statute authorizing its execution the fact that a bond is without a surety is immaterial, so long as the instrument comes under the legal definition of a bond.
Appellant directs attention to the fact the above rule was recognized in the Buxton case. It was recognized but we do not regal'd it as completely nullifying the appeal under our statute and facts of this particular case. Our decisions frequently have emphasized, as indicated in the foregoing and other cases, that appeals are favored and appeal statutes should be liberally construed in furtherance of justice wherever that reasonably may be done.
The instant corporate bondsman was the surety on the administrator’s bond which had been given and approved by the probate court when Goddard qualified as administrator c. t. a. Had the bonding company not appealed from the judgment rendered against the administrator in the probate court that judgment would have become a finality against the administrator and without doubt also would have been enforceable against his surety, appellee. Notwithstanding the fact the bonding company perfected the appeal to the district court that court had before it the question whether the judgment against the administrator should be affirmed. It is true the bonding company was the principal in the district court in the sense that it had perfected the appeal. That, however, did not alter the fact it also remained the surety on the administrator’s bond in the probate court. It, therefore, executed the bond not only as principal but also as surety. As previously indicated both the probate court and the district court had approved the appeal bond. Appellee nevertheless offered to furnish additional surety, or sureties, if that were deemed necessary.
In passing we may state there is not the slightest intimation the bond did not provide full protection for any judgment which properly might have been rendered against the administrator. In view of the provisions of the bond and all the other facts of this particular case we have no hesitancy in saying the district court acquired jurisdiction of the appeal and that it would constitute too technical an interpretation of the instant appeal bond statute to nullify the judgment of the district court on the ground that court was without jurisdiction to render it.
The judgment of the district court is affirmed.
“FINDINGS OF FACT
“The Court finds from the evidence:
“1. That a residence property located at 5417 Mullen Avenue in Los Angeles, California, was set over to Elsie R. Goddard in a property settlement agreement with Donald R. Goddard entered into previous to her death.
“2. That this real property was never listed in the inventory and appraisement or final accounting by Donald R. Goddard, administrator c. t. a. of this estate.
“3. That on the date of Elsie R. Goddard’s death in 1946, the record title to the above real property was held in the names of Elsie R. Goddard and Donald R. Goddard as joint tenants with right of survivorship.
“4. That subsequent to Elsie’s death, Donald R. Goddard as surviving joint tenant, obtained a Court decree from a California court terminating this joint tenancy and finding that Donald R. Goddard was the record owner of this real estate. That Donald R. Goddard then gave a deed to this property to a purchaser in California and received net proceeds from said property in the amount of $8654.03. [See, also, stipulation of parties.]
“5. That Donald R. Goddard as administrator c. t. a. did not rightfully receive the proceeds from the sale of the California real property. [Our italics.]
“6. The court further finds that Donald R. Goddard conducted all proceedings regarding the above California real property in his individual capacity and not in his capacity as administrator c. t. a. of the estate of Elsie R. Goddard, deceased. [Our italics.]
“7. The court further finds that neither the California real property nor the proceeds thereof are assets of the estate of Elsie R. Goddard, deceased, in Ford County, Kansas, and that therefore the said probate court had no jurisdiction of the California real property.
“8. The court further finds that the income of Donald R. Goddard, administrator c. t. a. and father of Timothy Goddard, minor heir of decedent, averaged approximately $1600.00 per year for the years 1947 through 1952.
“9. The court further finds that Timothy Goddard’s physical condition was such that he required nursing and medical care over and above that of a normal child.
“10. The court further finds that Donald R. Goddard spent ap proximately $7500.00 over the six-year period of 1947 through 1952 on the support, maintenance, education and medical expense for said Timothy Goddard, or an average of approximately $1250.00 per year.
“11. The court further finds that until the year 1952, Donald R. Goddard was not maintaining a home in which Timothy Goddard could live and that during this period of time, Timothy Goddard was in boarding schools and military schools for part of the years and at other times stayed with his grandmother and not with his father. That in July of 1952, Donald R. Goddard had established a home where he was able to have his minor son come and live and that after July, 1952, said Donald R. Goddard has made no charge for the support, maintenance, education or medical expenses of Timothy Goddard.
“12. The court further finds that although Donald R. Goddard as administrator c. t. a. took credit in his final accounting for almost $7500.00 support, maintenance, education and medical expenses for Timothy Goddard, only $3404.14 is properly chargeable against the estate of Elsie R. Goddard, deceased, under her last will and testament and that the amount of $3404.14 was a reasonable charge against said estate by reason of the father’s income and the separate estate of Timothy Goddard.
“13. The court further finds that Donald R. Goddard as administrator c. t. a., but without authority of the Ford County Probate Court, converted the ‘F’ bonds listed in the inventory and appraisement into cash and invested the proceeds, or the principal part thereof, in a retail store in California and that said funds have been lost and dissipated and no income received therefrom; that although Donald R. Goddard acted in good faith, this was an improper investment for which the administrator c. t. a. should be surcharged.
“14. That in order to pay the allowable and allowed expenses which were proper charges against the estate of Elsie R. Goddard, the administrator would have had to cash one bond in November of 1946 and another bond in June of 1950.
“15. That the administrator c. t. a. should be charged with interest upon the bonds according to their original terms for the bonds that were wrongfully cashed, and that the administrator should be charged in his accounts with the amount received for the bond cashed in November of 1946, being the amount of $3785.00 and with the value of .the second bond in June of 1950, being the amount of $3930.00, and further that said administrator should be charged with interest according to their original terms upon the remaining four bonds until said amount is paid.
“CONCLUSIONS OF LAW
“1. Donald R. Goddard is not liable as administrator c. t. a. to account to the Probate Court of Ford County, Kansas, for the proceeds from the sale of the real property in California.
“2. The American Bonding Company, surety on the bond of the administrator c. t. a., is not liable for the waste or misappropriation of the proceeds from the sale of the California property.
“3. The sum of $3404.14 is an equitable and proper charge against the estate of Elsie R. Goddard, deceased, for tibe support, maintenance and education of Timothy Goddard.” | [
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|
The opinion of the court was delivered by
Thiele, J.:
This was an action to recover on a note secured by a mortgage on real estate and for the foreclosure of the mortgage. Judgment was entered for the plaintiff and defendants appeal.
In his petition plaintiff alleged that he was the duly appointed and qualified executor of the last will of Thomas A. Reber, deceased; that on August 1,1946, defendants executed and delivered to Thomas A. Reber their promissory note due August 1, 1951, for the sum of $4,000; that plaintiff was the owner and holder of the note by operation of law and that there was due and owing thereon the sum of $4,480 and interest; that simultaneously with the execution of the note defendants executed and delivered to Reber a mortgage on described real estate to secure the above note; that the mortgage had been recorded and the registration fee paid; that the mortgage had become absolute and plaintiff was entitled to have it foreclosed and the real property sold in satisfaction of the debt, and he prayed for judgment on the note and for foreclosure of the mortgage. Copies of the note and mortgage were attached to the petition as parts thereof.
Defendants answered admitting execution of the note and mortgage, denying that plaintiff was the owner and holder thereof and entitled to have foreclosure and alleging that on or about February 4, 1952, Reber delivered as a gift inter vivos to defendant Eugene Parker the above note and did deliver to defendant Parker as a part of the gift the original mortgage, the transfer and delivery being accomplished by Reber physically handing the note and mortgage to Parker, and they prayed that plaintiff take nothing by his petition.
The trial resulted in a judgment for the plaintiff and the defendants appealed and that appeal bears number 39,405. Later the defendants’ motion for a new trial was denied and they appealed from that ruling and that appeal bears number 39,425. The appeals are presented together and appellants’ specifications of error cover the matters hereafter discussed. We shall refer to the parties as they appeared in the trial court.
As has been noted under the pleadings the execution of the note and mortgage was admitted, defendants did not allege the note had been paid nor that the mortgage had been satisfied or released, but did allege that Reber in his lifetime had given the note and mortgage to them. At the trial nothing seems to have been said that under the pleadings the burden of proof was on the defendants. The plaintiff offered in evidence the records of the register of deeds showing the mortgage to which the defendants objected on the ground the record was not the best evidence. Under G. S. 1949, 60-2854 and as that statute was construed in Wendell v. Heim, 87 Kan. 136, 123 Pac. 869, the objection was not good and the trial court did not err in admitting the record of the mortgage. From the testimony of defendants’ counsel, called as a witness by ’the plaintiff, it appeared that the defendant Eugene Parker had the note and mortgage in his possession and he was then called as a witness, asked his name and whether he had the note and mortgage in his hand and upon an affirmative answer being made, the plaintiff offered them in evidence. Defendants on cross examination of Parker sought to show the circumstances as to the consideration for and the execution of the note and mortgage, and as to how those documents came into the possession of Eugene Parker, to which questions plaintiff objected as calling for testimony by a person in his own behalf in respect to a transaction or communication had personally by him with a deceased person and not admissible in evidence under G. S. 1949, 60-2804. These objections were sustained.
Appellants contend the trial court erred in sustaining the objection and in not permitting them to inquire as to all matters concerning the execution of the note and mortgage and what subsequently occurred between them and Reber as to how they became possessed of the note and mortgage, and they direct our attention to and quote from Niccolls v. Esterly, 16 Kan. 32; Plowman v. Nicholson, 81 Kan. 210, 105 Pac. 691; Poole v. Poole, 96 Kan. 84, 150 Pac. 592; Bank v. Abbott, 104 Kan. 344, 179 Pac. 326; Robertson v. Wangler, 107 Kan. 45, 190 Pac. 788; and textbook authority, supporting the rule that where the plaintiff offers proof of facts respecting transactions or communications had by a witness with a person since deceased and under whom he claims, he waives incompetency of the witness to testify and opens the door to permit the defendants to cross examine further concerning the entire transaction or communication.
Without extended discussion it may be said that the rule contended for by the defendants is correct and is to be applied in a proper case. Was this such a case? On direct examination defendant Parker was asked his name, which he gave, and whether papers which he had in his hand were the note and mortgage, which he answered affirmatively. No other question was asked on direct examination. Answers to the two questions may not be said to prove any facts respecting transactions or communications had by the witness with the deceased Reber under whom the witness claims, and it may not be said that plaintiff waived the incompetency of the witness to testify as to transactions and communications had by him with Reber and thus opened the door so that on cross examination the witness could be interrogated as to such transactions and communications. In our opinion the trial court did not err in its ruling sustaining the objection to the questions asked on cross examination of the witness Parker.
Two other specifications of error are noted. One is that the trial court erred in ruling on a motion to make definite and certain. This specification is not argued and is considered as abandoned. The other is that the trial court erred in denying the defendants’ motion for a new trial. The motion is not included in the abstract, and there is no specific discussion of it. If it be assumed the ground was exclusion of evidence, what has been said suffices, and there was no error.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
Plaintiffs brought this action in the district court under the provisions of G. S. 1949, 60-3127 which provides that in cases of actual controversy courts of record within the scope of their respective jurisdictions shall have power to render judgments declaratory of the rights of interested parties. A demurrer to the petition by one defendant and a motion to dismiss by another, based on jurisdictional grounds, were sustained to the petition. The appeal is from those rulings.
The petition discloses the theory on which the plaintiffs base their right to the relief claimed and at the same time fully reveals the facts on which the rights of all parties depend on appellate review. Omitting formal averments, its prayer and allegations of no consequence to the jurisdictional issue, it reads:
“That the plaintiffs are minors and bring this action by their mother, guardian, and next friend, Ruth J. Hoard, and that the residence and post office address of plaintiffs and Ruth J. Hoard is 3401 Coleman Road, Kansas City, Missouri.
“That the plaintiffs are the natural bom children of the said Ruth J. Hoard and Wayne R. Hoard, deceased, husband and wife, at the time of plaintiffs’ birth.
“That the defendant, the Home State Bank of Russell, Kansas, is located in Russell, Kansas; that the defendant, W. S. Knox, executor of the said Wayne R. Hoard Estate, is a resident of Russell, Kansas; and that Max Horn, a resident of Russell, Kansas, is the duly authorized agent for the defendant, the Travelers Insurance Company.
“That for some years prior to his death on December 3, 1952, Wayne R. Hoard was engaged in the oil casing business at Russell, Kansas, and in the course of his business frequently and as a regular business practice borrowed money on a short time basis (approximately ninety [90] days) from the Home State Bank of Russell, Kansas; that as security for this indebtedness it was his regular business practice to assign all of his accounts receivable to said bank as the primary security therefor; that as a regular business practice he always paid off his indebtedness to said bank from his own personal funds; that between the dates of September 15, 1952, and November 26, 1952, the said Wayne R. Hoard borrowed from said bank the sum of approximately $5,722.00 and secured the same by assigning to said bank accounts receivable in the amount of at least $5,298.00 in addition to giving said bank a chattel mortgage on two automobiles, to-wit: one (1) 1951 Chevrolet Fordor Sedan and one (1) 1949 Chevrolet Fordor Sedan, which security he intended to be the primary source of money to pay off said loans; that said security for said loan was and is now sufficient to pay said loan in addition to the interest owing thereon, and the said accounts receivable so mortgaged and assigned have been collected in full and that the money is now held by the executor of the Wayne R. Hoard Estate, W. S. Knox of Russell, Kansas.
“That on February 24, 1949, the said Wayne R. Hoard took out a $5,000.00, double indemnity life insurance policy, policy number 2459696, with the Travelers Insurance Company of Hartford, Conn., with the said Ruth J. Hoard, designated as the beneficiary thereof; that on March 23, 1949, the said Wayne R. Hoard and Ruth J. Hoard joined in assigning the said insurance policy to the said Home State Bank of Russell, Kansas, as additional collateral, and secondary security for said loans to be used in payment of said loans only if the primary security was insufficient therefor; that on March 29, 1952, the said Wayne R. Hoard had the beneficiary of the insurance policy changed from Ruth J. Hoard to Wayne R. Hoard’s children, Nancy Jo Hoard, Barbara Ann Hoard and Mary Jane Hoard; that on December 3, 1952, the said Wayne R. Hoard met with accidental death causing the sum of $10,000.00 to be due and owing on said life insurance policy; that tire Travelers Insurance Company is now willing to pay the same to tire party entitled thereto; that the said bank is now claiming the right of payment thereof pursuant to the assignment: that plaintiffs claim the right of payment thereof.
“That up until the date of Iris death, Wayne R. Hoard had paid only three premiums on said insurance policy in the sum total of approximately $247.50; and that the cash surrender or loan value of said policy at' the time of death was so negligible as to amount to nothing.
“That under these facts above enumerated, the plaintiffs and defendants have disagreed, and are unable to agree as to their respective rights. Plaintiffs claim that under the said factual situation they, as beneficiaries of the said insurance policy, are in tire position of sureties for the debt owing from Wayne R. Hoard to the said bank and as such as a matter of right can require tire said bank to marshal the assets, i. e., to require the said bank to use the proceeds of the insurance policy to satisfy the said debt only after the bank has exhausted all other securities for said debt held by it against the said estate. The defendant, the Home State Bank of Russell, Kansas, denies tire plaintiffs’ right so asserted and claims that tire bank is not required to marshal the assets as aforesaid but claims that the said bank as a matter of right may elect the fund from which it wishes to satisfy the said debt, i. e., the fund as evidenced by the mortgaged assets of the Wayne R. Hoard Estate or tire fund as evidenced by the insurance proceeds. To emphasize the difference in claims, the said bank has affirmatively asserted that it will satisfy the said debt from the insurance proceeds, and denies the plaintiffs’ right even to subrogation of the said mortgaged assets of said estate.
“That in order to avoid a multiplicity of suits and to litigate and finally settle all rights incident to the principal issue above-stated, it is furthermore prayed that the following issue also be determined by the Court, if the principal issue above-stated is determined adversely to the plaintiffs: The plaintiffs claim that if they have no right to require the said bank to marshal the assets as aforesaid, then the plaintiffs as a matter of right are subrogated by law to all unused securities held by the bank as security for the said debt in order that the plaintiffs may reimburse themselves for that part of their money which would be used in payment of the said debt. The defendant, the Home State Bank of Russell, Kansas, likewise denied the plaintiffs’ right so asserted and claims that the plaintiffs stand as unsecured creditors of the said estate if creditors at all, and the said bank has refused to assign over to the plaintiff any of said securities.
“The executor of the Wayne R. Hoard estate also denies all of the plaintiffs’ rights above asserted and has stated that he will not recognize the right of either the said bank or plaintiffs to exhaust the mortgage assets of the said estate before the insurance proceeds.
“That unless an adjudication of the rights of the parties is made by the Court at this time, disastrous results and litigation of an extensive nature will result to the plaintiffs as well as to the defendants.”
In the interest of time and space, and because detailed reference to the grounds of the motion to dismiss, filed by the defendant bank, and the demurrer to the petition, filed by the defendant executor, would merely serve to further demonstrate the fact, it can be stated at the outset that the all decisive issue before this court on appellate review is whether the district court or, as such court held, the probate court, had jurisdiction of the cause of action set forth in the petition. In approaching that question two propositions, about which there can be no doubt under our statute, should be noted at this point. One, as we have heretofore indicated (See G. S. 1949, 60-3127), is that in cases of actual controversy courts of record within the scope of their respective jurisdictions shall have power to render declaratory judgments. The other is that under our probate code (G. S. 1949, 59-301) probate courts are courts of record. Thus, when the two sections of the statute above noted are read together and harmonized as our decisions require, it becomes obvious that where —as here — a proceeding to administer the estate of a deceased person is pending in probate court that tribunal has power and authority to render a judgment declaratory of the rights of the parties to participate in the assets of the involved estate.
Upon careful examination of the petition certain facts, existing prior to the commencement of the involved action on October 21, 1953, become crystal clear. Stated briefly they are:
1. That long prior to the death of Wayne R. Hoard and at a time when the appellants herein had no interest in the insurance policy in question, such decedent with the consent of the then beneficiary, Ruth J. Hoard, assigned and pledged benefits accruing under the terms of such policy, along with certain assets receivable and other personal property, to the appellee bank to secure the payment of an indebtedness then existing and now unpaid, thus making money accruing from such policy, in event of his death, a part of the assets of his estate in the event such proceeds were required to pay that indebtedness.
2. That following the death of such decedent, who died leaving a last will and testament, administration proceedings were commenced in connection with his estate; that pursuant to such will, and in conformity with its terms, the appellee W. S. Knox was appointed as the executor of the estate; that thereafter Knox, in his fiduciary capacity, took over all the assets receivable which were pledged to the bank to pay the decedent’s indebtedness and had them in his possession on the date of the filing of the involved petition.
3. That subsequent to the date of such action, and during the course of administration of the estate, a dispute arose between all parties to the involved action, except the insurance company which stands ready to pay the benefits of the policy to whomever is entitled thereto, as to whether the bank could collect the proceeds of such policy and apply them to the payment of its loan or was obliged to first exhaust the accounts receivable and other pledged personal property in payment of the amount due on its loan.
4. That, last but not least, the fundamental purpose of the action instituted by the appellants in district court was to marshal the assets of the decedent’s estate and obtain a declaratory judgment determining the rights of the contending parties thereto which would have the effect of directing the probate court how to apply and distribute the assets of such estate.
In the face of the foregoing facts sound precedent can be found for holding that the involved action is one over which the probate court had exclusive original jurisdiction under the powers conferred upon probate courts by G. S. 1949, 59-301, but we need not labor or pass upon that question here. It is certain that the action is one over which such court had concurrent jurisdiction and the conceded facts, based upon the allegations of the petition itself, are that it had assumed and was exercising that jurisdiction prior to the commencement of appellants’ action in district court. In such a situation our decisions are universal to the effect that the court which first acquires jurisdiction retains it to the exclusion of another court which is asked or seeks to assume it. See, e. g., Charvat v. Moore, 167 Kan. 336, 339, 205 P. 2d 980; Vilm v. Hudson, 167 Kan. 372, 375, 205 P. 2d 1021; Egnatic v. Wollard, 156 Kan. 843, 857, 137 P. 2d 188, and authorities there cited. For further illustration of the same principle see Walker v. McNutt, 165 Kan. 533, 196 P. 2d 163; Graves v. National Mutual Cas. Co., 164 Kan. 267, 188 P. 2d 945; Correll v. Vance, 127 Kan. 840, 275 Pac. 174, and numerous other cases of like import listed in Hatcher’s Kansas Digest, (Rev. Ed.), Courts, § 471; West’s Kansas Digest, Courts, § 475 (1), (2).
Based upon the foregoing decisions and what has been heretofore stated we are constrained to hold the probate court had assumed and was exercising jurisdiction over the matters appellants sought to have determined in the instant action and that therefore the district court’s action in sustaining the motion to dismiss and the demurrer to the petition, each of which challenged its right to hear and determine such action, was proper.
Allegations of the petition and arguments advanced by appellants’ astute and industrious counsel on the hearing of the cause, to the effect disastrous results and litigation of an extensive nature will result to them, as well as to the appellees and other future litigants, as the result of the conclusion just announced, are more theoretical than real. It denies a litigant no right based upon any theory, either legal or equitable, for it permits them to assert their rights respecting the marshaling, application and distribution of the assets of the estate of deceased persons in a proper proceeding in probate court and if dissatisfied with its decision, respecting such matters, gives them the right (See G. S. 1949, 59-2408) of appeal and trial de novo in the district court on any adverse phase of the probate court’s judgment.
What has been heretofore stated and held is limited strictly to the jurisdictional issue here involved and is in no sense to be construed as decisive of the merits of the cause or other questions raised by either party.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover on a policy of life insurance and from a judgment in favor of the plaintiffs the defendant appeals.
We note that the policy, the execution and delivery of which was admitted, was issued on March 16,1948, effective as of February 11, 1948, and provided that New York Life Insurance Company, hereafter called the defendant, would pay $2,000 to Esther R. Hawkins, the insured, on the anniversary of the policy on which her nearest birthday was sixty-five if she were then living, or to her beneficiaries Marjorie J. Williams and Alice L. Murray, her daughters, one-fourth to each, and to George W. Hawkins, her husband, two-fourths, upon proof of her death before the maturity date; or the sum of $4,000 in the same proportions if such death resulted before the maturity date from accidental means, as limited by the provisions of the policy. Other parts of the contract of insurance will be mentioned later.
In their discretion and as they had a right to do, the above named beneficiaries filed their petition in the district court of Crawford county, alleging issuance of the policy and that while it was in force and on January 25, 1949, the insured died from accidental bar.biturate intoxication without any intent on her part that death would result, the accident consisting of the fact she did not intend for the amount taken by her to cause any injury; that plaintiffs, as sole beneficaries named in the policy, had fully complied with all conditions precedent to establishing liability and had made demand upon the defendant company to carry out the contract, and it had failed to do so. Plaintiffs prayed judgment for the sum of $3,000.
The defendant’s answer admitted the issuance of the policy of insurance and alleged that the insured made various and fraudulent representations and warranties for the purpose of obtaining the policy of insurance and thereby defrauding the defendant company; that in her application she withheld information concerning her attendance by various doctors and physicians and failed to disclose information concerning such attendance by doctors and physicians which were material to the risk involved, setting forth details. Defendant further alleged that insured with intent to commit suicide took into her body excessive and large amounts of barbiturates and as a result entered into a coma condition and died, and by reason of the act of self-destruction by insured the beneficiaries are barred from recovery. Defendant alleged insured knew of her condition when she applied for insurance and neither divulged her condition nor set out in her application she had been attended by a physician within five years preceding her application and as a result of the fraud practiced the policy of insurance was void from its inception and of no effect; that tender of premiums paid was made and rejected by plaintiffs and was again made and paid to the clerk of the court for plaintiffs’ benefit subject to the further order of the court. By a further pleading denominated “counter claim” defendant sought to have the policy of insurance set aside and cancelled.
Plaintiffs’ reply to the answer and answer to the counter claim was a general denial.
A trial was had by a jury. At the conclusion of plaintiffs’ evidence defendant demurred, tire demurrer being overruled. At the conclusion of all the evidence, defendant moved the court for a directed verdict in its favor, which motion was denied. The court instructed the jury, defendant objecting to certain instructions later mentioned. After consideration the jury returned its general verdict in favor of the plaintiffs. In due time the defendant filed its motion for a new trial and its motion for judgment notwithstanding the verdict. After argument thereon, these motions were denied, and judgment in favor of plaintiffs was entered on the verdict.
Defendant perfected its appeal to this court specifying error as to masters hereafter discussed.
Appellant first contends, under one heading, that the trial court erred in its refusal to sustain its demurrer to the appellees’ evidence, in its refusal to direct a verdict in its favor, and in submitting tire case to the jury. Disposition of the contention requires a review of the evidence.
The application for the policy of insurance was attached to the policy and under G. S. 1949, 40-420 ( 2) the two constitute the contract between the parties. For present purposes it may be said' the controversy does not arise from the terms of the policy, but from certain answers returned to the medical examiner as a part of the application. In answer to Question 8 the applicant stated that she had never consulted a physician for any ailment of: (A) The brain or nervous system; (B) The heart, blood vessels, or lungs; (D) The skin, middle ear or eyes; but had for: (C) The stomach or intestines, liver, kidneys or bladder, naming the ailment or disease as paint poison in 1944, the duration as one week and the severity as moderate. No name of any physician is shown, although there was a blank provided therefor. The tenth question was: “Have you ever had, or ever consulted a physician or practitioner for, any ailment or disease not included in your above answers?” The answer was: “No. Only for ord. dis. of childhood.” The eleventh question was: “What physicians or practitioners, if any, not named above, have you consulted or been examined or treated by within the past five years?” The answer was: “None.” The next to the last paragraph read: “On behalf of myself and of every person who shall have or claim any interest in any insurance made hereunder, I declare that I have carefully read each and all of the above answers, that they are each written as made by me, and that each of them is full, complete and true, and agree that the Company believing them to be true shall rely and act upon them accordingly.”
For convenience we here note that under the last above mentioned statute it is provided:
“. . . that all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties . . .”
At the commencement of the trial it was stipulated that defendant’s chief medical officer, if present, would testify that he considered the application of the insured and relied on the answers therein and there was ño reason to doubt (believe?) that the answers were untrue, false or incomplete and if they had disclosed that on May 8, 1945, and again on December 17, 1945, June 17, 1946, January 17, 1947, and June 17, 1947, the applicant had been examined by Dr. Stanley E. Davis, the application would have been suspended until defendant had received full information from him, and if the Company had known the applicant had consulted Doctor Davis on those dates and his examination disclosed an ovarian cyst which was still present on June 17, 1947, the application would have been denied.
Extensive review of the oral testimony adduced by the plaintiffs is not necessary for present purposes. George W. Hawkins, who was the husband of the deceased insured, testified they moved to Columbus, Kansas, in 1945, and she worked in the Fashion Shop, which she purchased in November, 1948. The couple had four children, a son who died in military service prior to 1945 but whose death was not immediately known, two daughters, and another child which died in infancy. The mother grieved over the death of the son, but had not consulted a physician except for colds. She had been treated by Doctor Fuller in 1944. After moving to Columbus she went to Doctor Davis for a checkup and he found a cyst on one of her ovaries, and she returned to him every six months for a checkup. While consulting Doctor Davis, she was not sick, she was not sick or hospitalized until her death. She took an active part in civic and lodge activities and attended church occasionally. Between Christmas and New Years she moved her business location but nothing happened which caused her any unusual concern. She died January 25, 1949, but was not sick the week preceding her death except she could not sleep. On Thursday before her death the doctor gave her two pills but she didn’t take them. Mrs. Hawkins had secured medication during the fall before Christmas or immediately thereafter to enable her to rest. On Saturday preceding her death (the following Tuesday) she was about as usual. On Sunday she was up and had breakfast. He went out and when he returned about 1:00 p. m. she was asleep and slept on the rest of the day. He' called Doctor Davis and later was advised to take his wife to a hospital in Pittsburg; that was done and she died the following Tuesday morning. He further testified his wife went to see Doctor Davis on Thursday to get something to make her sleep. He knew she obtained medication but did not know the date. Other testimony as to consulting the doctor and that she obtained sleeping tablets; that she was in a coma and never regained consciousness need not be set forth. The certificate of death admitted in evidence showed the cause of death to be “Barbiturate intoxication” with an interval of 36 hours between onset and death and the date of death to be January 25, 1949. The testimony of the two daughters, amplifying that of the father as to the mother’s condition, medication and death need not be set forth. We here note there is no testimony in connection with the application for insurance that the insured gave truthful answers to all questions but that the medical examiner did not correctly note them.
The gist of appellant’s argument is that the insured knowingly stated she had not consulted or been treated by a physician within five years prior to her application as disclosed by appellees’ evidence, which likewise disclosed the statements were not true; that the appellant relied on the answers made by her; that had it known she had been examined by Doctor Davis and that the examination disclosed an ovarian cyst, her application would have been denied; that her failure to give positive answers to direct questions and the misrepresentations made by her were material to the risk and plaintiffs as her beneficiaries are barred from recovery as a matter of law; that such being the case the appellant’s demurred to plaintiffs’ evidence should have been sustained, or following introduction of evidence by the appellant which merely amplified the showing made by plaintiffs, appellant’s motion for a directed verdict should have been allowed.
Assuming that general rules of law with reference to fraud and consequent effects apply, and that under such rules the plaintiffs may not recover, we have to consider the effect of a statute first enacted as Laws 1907, ch. 226, sec. 1, which has never been amended and which now appears as G. S. 1949, 40-418. It reads as follows:
“No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable.”
In view of our conclusion later stated, we shall make a rather extensive review of our decisions wherein the above statute has been referred to or its principles applied, whether referred to in the briefs or not.
The first specific reference to the statute in our decisions was in Green v. Annuity Association, 90 Kan. 523, 531, 135 Pac. 586, where it was said that reference was made in the briefs to G. S. 1909, §4200 (Laws 1907, ch. 226, §*1) relating to misrepresentation in obtaining insurance but it was not necessary to the decision to determine the effect of the statute.
The second case where the statute was specifically referred to is Newton v. Insurance Co., 95 Kan. 427, 148 Pac. 619. There the jury found that the insured had given truthful answers to certain questions asked in the application and this court said the findings of the jury would not be disturbed. Referring specifically' to a finding about a question as to whether any company had examined him without issuing a policy, this court said:
“We can not bring our minds to the conclusion that the jury’s first finding of fact on that point should be overturned. We prefer to let it rest on the finding of the jury rather than to permit it to be governed by section 4200 of the General Statutes of 1909. Indeed we have grave doubt as to whether a misrepresentation of this sort would not be material in every application for an insurance policy. An insurance company has a right to be put on its guard by a frank and truthful answer to a question of this sort. We could not say as a matter of law that a misrepresentation of this sort is ever immaterial.” (1. c. 432.)
In addition, later statement is made that “The findings of fact made by the jury will not be disturbed.” (1. c. 433.) A reference is also made to the statute being incorporated in the instructions. The opinion contains no comment on the statute itself, but the holding of this court, reflected by syllabus ¶ 1, was:
“The withholding or misrepresentation of facts in an application for life insurance will not defeat the insurance policy unless those facts, thus withheld or misrepresented, pertain in some degree to the malady which occasions the death of the assured, following section 4200 of tire General Statutes of 1909.”
In Sharrer v. Insurance Co., 102 Kan. 650, 171 Pac. 622, the above statute was mentioned and partially quoted but there was no comment as to its force and effect. The decision of this court affirming a judgment for the plaintiff was, in effeGt, that testimony showed that plaintiff answered questions in good faith and the jury had fair grounds for finding claims of fraudulent statements were not sustained.
The above statute was held to have no application in actions on fraternal benefit insurance policies in Glasgow v. Woodmen of the World, 107 Kan. 354, 191 Pac. 470, and Hiatt v. Woodmen of the World, 107 Kan. 359, 191 Pac. 472, a rule followed in Steele v. Woodmen of the World, 115 Kan. 159, 222 Pac. 76, nor for recovery of health benefits under a combined health and accident insurance policy in Russell v. United Casualty, Co., 123 Kan. 282, 255 Pac. 65. Compare, however, Elliff v. Inter-State Business Mens Acc. Co., infra.
In Becker v. Surety Co., 105 Kan. 99, 181 Pac. 549, decided in 1919, the action was by the beneficiary to recover for the death of her husband under an accident and health insurance policy. The action was tried on an agreed statement of facts from which the trial court decided that certain answers in the application were untrue and would have had the effect of avoiding the policy except for the provisions of the above statute. In considering the statute and its effect this court, Chief Justice Johnston dissenting, said:
“The representations having been made and being untrue, the question arises: Are they rendered innocuous by the statute quoted? Under it the misrepresentations are immaterial unless the matter misrepresented actually contributed to the accidental death of the insured. It is the view of the court that false representations as to a physical condition which was in no way related to the death of the insured, do come within the exemption of the statute, and would not defeat the policy. . . . The court holds that a different rule applies where the facts misrepresented or fraudulently concealed are such as increase the moral risk, and which, if known by the insurer, would probably have prevented the issuance of the policy. Misrepresentations of this character, although they do not directly contribute to the contingency of death, are deemed not to be within the purpose of the statute. Such misrepresentations never can contribute to the contingency insured against, and therefore it is held that the statute does not apply to or render them harmless.” (1. c. 102.)
And the court held:
“False representations by the insured which affect the moral risk, such as that he had not applied for or taken out other insurance of the same kind, or that he had never received indemnity for accident or illness, while they cannot be regarded as having directly contributed to the accidental death of the insured, are not within the scope or purpose of the statute mentioned, and are not rendered immaterial by the statute.” (Syl. ¶ 3.)
We note the next two cases only to show the course of decision.
In Klein v. Farmers & Bankers Life Ins. Co., 132 Kan. 748, 297 Pac. 730, the insured stated to a medical examiner that he had not consulted a physician within the past ten years; that he believed he was in good health; that no medical examiner had expressed any unfavorable opinion as to his health or insurability and that he had never had any disease or injury. The policy was never delivered as he was sick when it was ready for delivery. Klein died of pernicious anemia and his beneficiary brought an action on the policy. She was denied recovery. Reference is made to the opinion for details as to false answers. Although it may be said the opinion held that the policy was not delivered because the insured was not in good health to receive it, there is a further holding that the subject matter of inquiries made was material, the answers were false and necessarily operated to defeat the contract of insurance. No specific reference is made to the statute quoted above.
In Scott v. National Reserve Life Ins. Co., 143 Kan. 678, 56 P. 2d 76, the insured had answered in the negative a question whether a life insurance company had examined him for insurance, without delivering a policy. It was stated the question was a material one and a false answer would change the attitude of the company as to the risk, and that it was error for the trial court to direct a verdict for plaintiff. Reference is made to the opinion for a complete statement of the facts. The judgment was reversed and the cause remanded for a new trial. However, a rehearing was allowed as a result of which the cause was remanded with instructions to render judgment for the defendant. See 144 Kan. 224, 58 P. 2d 1131. It is observed that in neither of the two opinions was there any discussion of the above quoted statute.
We have not overlooked Day v. National Reserve Life Ins. Co., 144 Kan. 619, 62 P. 2d 925, to which both appellant and appellee refer. It was decided on the question of good faith, the statute was not mentioned and it is not decisive here.
In DePee v. National Life & Accident Ins. Co., 144 Kan. 751, 62 P. 2d 923, decided in 1936, the insured in his application for the policy stated that his occupation was that of a plasterer and that he had followed that occupation for fourteen years and he had been his own employer. Actually he had been an inmate of a penitentiary and applied for the insurance while out on parole. He was killed while resisting arrest while engaged in the commission of a crime. As a result of a trial his beneficiary recovered judgment and the defendant appealed to this court. In disposing of the appeal this court, without dissent, said:
“It is a matter of common knowledge that there is or may be a moral risk involved in the character of an applicant for life insurance. A man who has adopted a career of crime, and especially crime of violence, such as robbery, rum-running and the like, is not as safe a risk as a man who follows tire honorable and useful occupation of a plasterer. DePee’s predilection to a career of crime was involved in the very circumstances which culminated in his violent death, and the matters misrepresented in his application were material under the statute R. S. 1933 Supp. 40-418. (Russell v. United Casualty Co., 123 Kan. 282, syl. ¶ 1, 255 Pac. 65; Lodge v. Order of United Commercial Travelers, 125 Kan. 26, 262 Pac. 598; Klein v. Farmers & Bankers Life Ins. Co., 132 Kan. 748, 297 Pac. 730.)”
“This court holds that the misrepresentation in DePee’s application touching the nature of his employment was material to the risk and rendered the policy void from its inception. The judgment is therefore reversed and the cause remanded with instructions to enter judgment for the defendant.” (1. c. 754.)
National Reserve Life Ins. Co. v. Humphreys, 145 Kan. 373, 65 P. 2d 296, was an action to cancel a policy of insurance. The petition alleged that the insured had procured a policy of insurance for $2,500 on July 2, 1925; that at a later date he procured another policy of $1,000 on the strength of his representation set out in full in the opinion; that the company had paid the first policy; that the recitals in the application to obtain the second policy and to obtain a reinstatement and relied on by the company were false. The trial court sustained the defendant’s demurrer to the petition and wrote a memorandum opinion stating that in any event the matter was controlled by the above quoted statute. This court in its opinion noted absence of an allegation that the concealment of a surgical operation had anything to do with the cause of death and held the above quoted statute controlled, later saying in part:
“The diligence of counsel for the litigants has directed our attention to interesting decisions in more or less analogous cases — especially to Hurt v. New York Life Ins. Co., 51 F. 2d 936; id. 53 F. 2d 453, where the circuit court of appeals for the tenth circuit characterized false statements in an application for insurance as conditions precedent which prevented the insurance contract from coming into existence in the first instance, and not mere misrepresentations which might defeat the policy. Whatever that eminent court says is always instructive and usually helpful. Here, however, in plaintiff’s petition the alleged false statements in the insured’s health certificate and application are alleged to be misrepresentations, not conditions precedent. Moreover, our statute so precisely covers the point that whether the allegedly false statements be characterized as conditions precedent or as misrepresentations, they could not affect the result in this case. (Newton v. Insurance Co., 95 Kan. 427, 148 Pac. 619; Galloway v. Insurance Co., 112 Kan. 720, 725, 212 Pac. 887; Hayslip v. Insurance Co., 112 Kan. 189, 210 Pac. 188. See, also, 32 C. J. 1281-1284.)” (1. c. 376.)
In Brown v. Metropolitan Life Ins. Co., 146 Kan. 300, 69 P. 2d 1110, we considered reinstatement of a lapsed policy, the reinstatement being procured on a written application stating that insured had not consulted a physician since issue of the policy. As shown by the opinion the answer was false. In an action on the policy, and on the appeal, the beneficiary sought to rely on the above statute. This court held it inapplicable. A review was made of authorities dealing with materiality of answers made in an application for insurance and of fraud in connection therewith. It was held the undisputed evidence showed false answers as to material matters and the judgment of the trial court for plaintiff was reversed and the cause remanded with instructions to render judgment for the defendant.
National Reserve Life Ins. Co. v. Jeffries, 147 Kan. 16, 75 P. 2d 302, was an action to cancel a policy. Reference is made to that opinion for a full statement of the facts and a review of authorities. Rriefly stated the insured obtained a policy from the company in 1921. In June, 1933, he obtained a second policy by virtue of a certificate in which he stated he had not undergone any medical or surgical treatment since a previous date. The proof showed the answer was false and that he had received treatment for hemophagia, chronic constipation and hypertension, and that he died of a hemorrhage. In its opinion this court stated the issuance of the policy without medical examination depended solely upon the representation as to good health, and had the representation as to good health not have been made a medical examination would have been made which would have disclosed the identical ailment of which insured died; that the matter misrepresented contributed to the event on which the policy became due, was material and rendered the policy void, citing the above statute and the Humphreys case noted above.
In Jackson v. National Life and Acc. Ins. Co., 150 Kan. 86, 90 P. 2d 1097, the company defended an action for recovery on a policy of insurance on the ground that false answers were knowingly made in the application therefor, that defendant did not know the answers were false and would not have issued the policy if it had been informed. The questions and answers are set forth in the opinion. Insured had consulted a chiropractor for acute gastritis, a matter concealed by an answer made by her. She died of myocarditis. Attention was directed to the above quoted statute, and shortly stated, it was held there was no connection between the concealed matter and the cause of death, and the only question was whether the insured made answers fraudulently. This court held the answer was not a warranty and that good faith in making the answer was sufficient even though it was incorrect as a matter of fact. The judgment of the trial court allowing recovery was sustained.
Our attention is also directed to Elliff v. Inter-State Business Mens Acc. Co., 153 Kan. 177, 109 P. 2d 92. The case involved an accident and health policy and the action was for recovery for disability resulting from accident. The application did not disclose the insured had consulted a physician during a named period. The proof showed that he had and the jury so found. Attention was directed to the quoted statute, and it was said there was no causal connection between the illness for which the insured had consulted the physician and the injury for which he sought recovery. It was further stated that although it was pleaded the answer affected the risk assumed, there was no proof thereon. The judgment of the trial court allowing recovery was affirmed.
Appellant directs our attention to United States v. Depew, 100 F. 2d 725. In April, 1931, the insured while a soldier in the army applied to the United States for a policy of insurance stating he was then in good health and that he had never been treated for any disease of brain or nerves, throat or lungs, stomach, liver, intestines and other specified parts of the body. A policy was issued effective as of May 1, 1931. In February, 1933, the director of insurance canceled the policy for fraud in the answers contained in the application. Omitting reference to intervening matter, plaintiff filed an amended petition seeking recovery on the policy. The United States answered that the policy was obtained by fraud on the part of the insured in making false answers in his application. Trial was had by the court and at the close of the evidence the United States moved for judgment. The court found for plaintiff and appeal followed. As shown in the opinion there was undisputed evidence the insured had been hospitalized on a number of occasions for difficulties connected with his lungs and hemorrhaged frequently until his death. We need not follow out the decision fully, leading to a conclusion that the untrue representations knowingly made were material as a matter of law. Under the circumstances the cause was remanded for a new trial. We note that the policy in question arose under the statutes of the United States; that no statute similar to ours as quoted above was involved, and that the case is not decisive here.
Appellant also directs attention to New York Life Ins. Co. v. McCurdy, 106 F. 2d 181, an action commenced in a district court of this state and removed to the federal court for trial which resulted in a judgment for plaintiff from which the company appealed. The opinion is long and cannot be reviewed at length. In his application for insurance the insured who was a doctor of medicine gave a negative answer as to whether he had ever consulted a physician or practitioner for any ailment or disease not included in his above answers. These previous questions and answers called for no answer that he was suffering from pain, tenderness and swelling of his right testicle. A policy was issued to him on April 2, 1937, and the uncontroverted evidence showed he died on December 15, 1937, of a cancer which had its origin in that testicle. Without detail it may be said the proof showed the falsity of the answer as to consulting a physician and that prior to making the above application the insured had been treated on a number of occasions by various doctors for the trouble in the testicle. In the course of the opinion the appellate court referred to many of our decisions and stated that when fraud is established in obtaining a policy of insurance there can be no recovery notwithstanding the above quoted statute. In support the court cites a number of our decisions, and decisions from other jurisdictions, including Hurt v. New York Life Ins. Co., referred to in National Reserve Life Ins. Co. v. Humphreys, supra. We shall not pause to review our decisions cited to determine whether or not they support the rather broad statement made by the court, for we have no doubt that under the evidence the misrepresentation was material and actually contributed to the event on which the policy became due and payable, and that under the circumstances the beneficiary could not rely on the above quoted statute.
The gist of appellant’s argument that its demurrer to appellees’ evidence should have been sustained and that the trial court erred in not directing a verdict in its favor is that the appellees’ proof established that the insured returned false answers to questions as to whether she had consulted a physician for any other disease not included in her answers which did not refer to her reproductive organs, and as to whether she had consulted or been examined by or treated by a physician or practitioner within the past five years, and that had the company known of the cyst on her ovary, concerning which she consulted a physician, as stated in our review of the evidence, the company would not have issued the policy; that the matter was material 'to the issuance of the policy, and under our decisions dealing with “moral risk” it was not liable under the policy except for return of premiums, which it had tendered into court. In support it cites many of the cases reviewed above.
Answering the contention appellees direct attention to the fact that there was no evidence that the ovarian cyst or any other minor conditions from which the insured may have suffered and for which she had been examined or treated prior to her making application for the insurance contributed to her death which was caused by barbiturate intoxication, and they submit that as the defense of fraud raised by the appellant did not pertain to a misrepresentation actually contributing to the contingency or event on which the policy became due and payable, it was not material under the above statute, and that their evidence made a prima facie case entitling them to recover.
A review of the evidence makes it clear that there is no question but that when the insured, in her application, answered that she had not consulted or been examined or treated by a physician or practitioner, she knew the answer was false. It is equally clear, however, that the matter which was misrepresented and concealed. i. e., that she had an ovarian cyst, did not actually contribute to the event on which the policy became due, for the evidence clearly disclosed her death resulted from barbiturate poisoning.
The statute above quoted is clear in its terms that no misrepresentation in the application for insurance shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the event on which the policy becomes due. It is true that this court in Becker v. Surety Co., supra, did make an exception as to “moral risk” as set forth in syllabus ¶ 3 of that opinion which rule was followed in DePee v. National Life & Accident Ins. Co., supra, and recognized at least indirectly in other cases. Upon a reconsideration this court has concluded that in view of the clear and explicit language of the statute, it was unwarranted in engrafting on that statute an exception the legislature did not see fit to include, and that it should follow the statute as written and hold, without engrafting an exception thereon, that the only misrepresentation made in obtaining a policy of life insurance which shall be deemed material is one which actually contributed to the event on which the policy becomes due, and that the Becker and DePee cases last referred to, insofar as they make “moral risk” an exception to the statute, should be repudiated and overruled, and that anything savoring of approval of “moral risk” as an exception to the statute in any other case should be disapproved.
We conclude the trial court did not err in ruling on appellant’s demurrer to appellees’ evidence, nor in refusing to direct a verdict in appellant’s favor.
Appellant, directing attention to the fact the policy provided for double indemnity in the event of accidental death, contends there was no evidence of accidental death within the meaning of the policy. To arrive at that conclusion appellant is driven to contend that evidence, which it offered, was hearsay and should not be considered. We need not decide whether that may be done. We do not overlook that in appellant’s answer it was alleged that the insured died as the result of taking excessive amounts of barbiturates. Other ■ evidence included the statutory certificate of death showing insured died of barbiturate poisoning. This was competent evidence of the cause of death under Jaques v. Commercial Travelers, 104 Kan. 612, 617, 180 Pac. 200, and Porter v. Metropolitan Life Ins. Co., 155 Kan. 521, 524, 127 P. 2d 444. In addition there was testimony of attending physicians that she had an overdose of barbiturates, became in a coma and died. It is here noted that appellant concedes that it failed in its effort to prove the insured committed suicide by taking an overdose of barbiturates.
There is no evidence that the insured was aware of what amount of the drug would produce death. Without repeating all the evidence as to dosages taken by the insured, we think it such the jury could properly infer that insured was in ignorance that the amount she took was a lethal dose and that her death was by accidental means. (Spence v. Equitable Life Assurance Soc., 146 Kan. 216, 69 P. 2d 713.)
Under the evidence the overdose of the drug was taken either with suicidal intent or accidentally. Under the circumstances here the assumption would be unwarranted, but if it be assumed the evidence as to whether the taking of the drug was accidental or suicidal was so nearly balanced as to leave the answer in doubt, the presumption would be in favor of accident. (Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765, 44 Pac. 996, 35 L. R. A. 258; O’Brien v. Insurance Co., 109 Kan. 138, 144, 197 Pac. 1100; and Muzenich v. Grand Carniolian Slovenian Catholic Union, 154 Kan. 537, 119 P. 2d 504, 138 A. L. R. 818.)
Appellant’s contention the appellees’ proof did not establish death by accident cannot be sustained. .
Appellant also contends that certain instructions to the jury were erroneous. With one exception the objections are predicated on its contention it could rely on “moral risk.” In view of what has been said on that phase of the case, it becomes unnecessary to discuss the contentions made. Appellant also contends an instruction as to what constitutes an “accident” should not have been given “since there was no evidence of accidental death or a suicide.” The pleadings made an issue thereon, there was evidence, and the objection is not good.
In view of what has been said, it follows that the judgment.must be and it is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action by plaintiff against her former husband for a balance alleged to be due upon an oral contract pertaining to their property rights at the time of a former divorce. The trial court sustained defendant’s motion for judgment upon the pleadings and the opening statement of counsel for plaintiff. Plaintiff has appealed.
The petition alleged that both parties are residents of Kansas City, Wyandotte county; that on June 23, 1951, a divorce action was pending between the parties in which the plaintiff here was plaintiff and the defendant here was defendant, said action came on for trial; that plaintiff and defendant in that action entered into an oral agreement whereby defendant was to give plaintiff his promissory note in the sum of $1,000 in full settlement of temporary and permanent alimony and rights in property possessed and owned by plaintiff and defendant; that the settlement was duly approved by the court and the divorce granted to defendant as shown by the decree of the court; that defendant failed to give to plaintiff the promissory note of $1,000 but that since the rendition of the decree of divorce he had paid plaintiff $110.00 on account of said indebtedness of $1,000. The prayer was for judgment on the balance due of $890.00. Attached to the petition was a copy of the findings of the court in the divorce case, the pertinent portions of which we are told read as follows:
“Finding 8: That there has been no accumulation of real property by the plaintiff and defendant during their marital relationship but that there are various and sundry household goods, furnishings and effects which are now in the defendant’s possession at 1018 North 37th Street Terrace, Kansas City, Kansas, and that in addition thereto, the defendant now owns a 1948 Chevrolet automobile which is in his possession and is encumbered.
“Finding 9: That defendant has made his promissory note to the plaintiff in the amount of $1,000.00 in consideration of temporary and permanent alimony and rights in property and attorney’s fees and when said note is paid in full it shall act as full and complete settlement of any and all future claims by the plaintiff against the defendant for her support and maintenance and to the personal property set forth in the preceding paragraph.”
“It is therefore considered, ordered, adjudged and decreed that said defendant be divorced from said plaintiff, and that the bonds of matrimony heretofore existing between said parties, be dissolved, set aside and held for naught, and said parties released from all obligations thereunder. And it is further ordered and adjudged that this decree of divorce shall not become absolute and take effect until the expiration of six months from date.
“It is further adjudged that the plaintiff be and she hereby is awarded her costs in this action, and that the defendant be and'he hereby is awarded personal property set out and described in paragraph 8.”
This journal entry was approved by the then attorney for defendant and also approved by the judge of the trial court and does not appear to have been presented to the attorney for the plaintiff. To this petition defendant filed an answer in which he denied that he entered into the agreement to pay plaintiff $1,000 in settlement of temporary and permanent alimony and rights in property possessed by plaintiff and defendant; denied that any settlement was approved by the trial court, and pleaded the judgment of the court was res judicata. Plaintiff’s reply was a general denial.
When this action came on for trial counsel for plaintiff made an opening statement which, in substance, was the restatement of his petition and introduced 'the decree in the divorce case and further stated that Mr. Tudor Nellor represented plaintiff and Mr. Willard G. Widder represented the defendant in the divorce case; that this action was based on finding No. 9 of the decree, and that after making the agreement recited in that finding plaintiff dropped the divorce case and defendant got the divorce.
Whereupon Mr. Everett Fritz, counsel for defendant in this action, moved for judgment on the pleadings and opening statement. His argument was presented in his answer and particularly on his claim of res judicata for the reason that finding No. 9 of the divorce decree , was not made a part of the judgment of the court. The court took the matter under advisement and on October 2, 1953, sustained defendant’s motion for judgment on the pleadings and the opening statement of plaintiff. Plaintiff filed a motion for a new trial which was overruled. This appeal followed.
We think the basic error here is considering this case as a suit upon a judgment. It is not. It is a suit upon the agreement. Defendant’s denial that he made the agreement is of no consequence inasmuch as the trial court in the divorce case found that he did make it. The record also shows that the court approved the decree containing that finding. The defendant also approved it by his attorney. It seems clear also that the finding was one of the matters upon which the trial court based its judgment even though it was not recited in the judgment part of the decree. More than that, the defendant himself recognized the agreement when he paid $110.00 on it.
We have examined all of the cases cited by counsel for appellant and appellee but think it is necessary to cite none of them here except the late case of In re Estate of Shideler, 172 Kan. 695, 242 P. 2d 1057, which cites earlier cases. This case makes it clear that an agreement between the parties in a divorce case may be sued upon separately and apart from the judgment of the decree. Since both parties rested on defendant’s motion for. judgment and made it clear to the court they had no other evidence to offer, the judgment of the trial court must be reversed with directions to enter judgment for plaintiff. It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This was a declaratory judgment action in which the plaintiff asked the court below to determine whether the City of Topeka or the plaintiff, the developer of a new addition in the city, was responsible for the extension of water mains into that addition.
For convenience, the appellant Jayhawk Construction Company, Inc., will be referred to as plaintiff, and appellees City of Topeka and the Roard of Commissioners of the City, will be referred to as City.
The pleadings and agreed statement of facts, insofar as pertinent here, may be summarized as follows: The defendant is a city of the first class and owns and operates the water system of the city under the provisions of chapter 13, article 24, G. S. 1949.
The plaintiff is a Kansas corporation with its principal place of business in Topeka, and was the owner and developer of a forty-acre subdivision known as Westview Heights Manor, for residential purposes, all within the boundaries of the city, and had under construction 120 houses, none of which were available for sale or occupancy unless water was supplied. The city, since it took over the waterworks many years ago, had extended the water mains into new additions within its boundaries without requiring the cost of such extension to be paid by the developer of the subdivision concerned. From the time the city had controlled the waterworks it had extended water mains within the city limits without charging the cost thereof directly to the consumer. The city had extended its water mains to Twenty-fifth Street which was immediately adjacent to plaintiff’s new addition. Plaintiff orally negotiated with the city for an extension of water mains into its new addition. The city refused to give plaintiff any consideration on the basis of the city’s past practices. The city officials informed plaintiff that if water mains were extended into the new addition they would have to be paid for by plaintiff. Plaintiff had submitted a plat to the city which had been approved, and construction of 120 houses had been started. Most of them were under contract for sale, and water was necessary before they could be occupied. A controversy arose between the city and plaintiff in regard to whether the extension of the mains should be at the expense of the plaintiff or the city. Before commencing this action, plaintiff more or less in the form of a demand filed an application with the city for extension of the water mains, which reads as follows:
“Comes now the Jayhawk Construction Company and makes application to the Board of Commissioners of the City of Topeka for extension of water mains into Westview Heights Manor,- a sub-division of Lot 3 in the Southeast one-fourth of Section 10, Township 12 South, Range 15 East, Shawnee County, Kansas. A plat of such sub-division is attached hereto and made a part hereof.
“The applicant is delivering herewith, a good and sufficient cash bond in the amount of Five Thousand Dollars ($5000) by which applicant guarantees the use of a sufficient quantity of water for a period of two years to insure the City of Topeka an additional income therefrom, equivalent to a profit of ten percent per annum on the estimated cost of such extension. All in accordance with G. S. 1949, 13-2409 and City Ordinances, Chap. 27, Art. I, 27-102.
“Respectfully submitted,
“JAYHAWK CONSTRUCTION COMPANY, INC.
“By /s/ Kenneth L. Murrow
“Secretap^-Treasurer”
Accompanying the application was plaintiff’s certified check payable to the city in the amount of $5,000. The city returned the cash deposit to the plaintiff with the suggestion that the water mains could not be extended unless plaintiff agreed to pay therefor. In order to get water service, plaintiff entered into a contract with the city whereby the city agreed to extend the water mains into the subdivision upon plaintiff’s paying the cost thereof. The contract contained a proviso that such payment by the plaintiff to the city for the extension of the mains should be without prejudice to the right of plaintiff to have determined in a court of law the liability and responsibility of the city to construct the water mains and, if successful, to recover its payment made for such extension.
Plaintiff contended it was the responsibility of the city to construct the water mains into the subdivision without cost to the plaintiff, as had been the practice and custom of the city in the past.
It was the city’s contention that plaintiff’s application for extension of water mains and its tender of a certified check in the amount of $5,000 failed to meet the requirements of G. S. 1949, 13-2409, in that plaintiff was a corporation and that its place of business was not within the boundaries of the subdivision, and it was not a bona fide resident property owner along the line of the proposed extension within the meaning of the statute, and that no bond as contemplated by the statute was tendered the city.
On the pleadings and stipulations of fact, the trial court made conclusions of law, some of which will be hereinafter referred to, and entered judgment for the defendant for costs, from which judgment plaintiff appeals. Plaintiff’s principal contention here is that it was the duty of the city to extend the water mains into the new addition as had been the practice and custom of the city for many years, and that a repudiation of such policy now amounts to discrimination as to this plaintiff.
G. S. 1949, 13-2409, in pertinent part, provides:
“The board of commissioners in cities of the first class shall make no extensions of water mains until fifty percent of the persons, firms or corporations, who are bona fide resident property owners along the line of the proposed extension, shall have first executed and delivered to such city a sufficient number of written contracts, the performance of which is secured by a cash deposit or a good and sufficient bond stipulating for a supply of water for a period of two years, to insure such city an additional income therefrom equivalent to a profit of ten percent per annum on the cost of such extension. Should said contracts for such extension be duly executed and such extension of water main be made, then the ten percent per year for the period of two years shall be prorated equally against all properties along said line of extension: Provided, That the board of commissioners shall have the right to extend a lateral water main connecting the ends of two or more parrallel lines to establish a circulation of water, and twenty percent of the cost of this extension shall be prorated against all properties along said line of extension, to be paid for as follows: fifty percent the second year, as provided for in the extension of water mains: . . . Provided further, That the department of waterworks of any city shall not make any such extension, as herein provided for, until it shall have first prepared its plans and specifications therefor and the same shall have been approved by the board of commissioners of such city.” (Italics supplied.)
The above statute is clear and unambiguous. It is a part of chapter 13, article 24, G. S. 1949, pertaining to city-owned waterworks systems, and the powers and duties of the boards of commissioners, and cities in connection therewith. It is noted this statute is not a grant but a limitation of power to cities to extend water mains. It provides certain requirements be met before cities may exercise the power of extending water mains. An elementary rule of law is that municipal corporations are creations of law and may exercise only such powers as are conferred by the legislature and are bound by the limitations imposed upon them by that body. The trial court correctly concluded as a matter of law that the mentioned statute was a limitation of power upon the City of Topeka to extend its water mains, and that it was without authority to incur any liability or place itself under any obligation to extend such mains into plaintiff’s subdivision until the provisions of the statute had been met.
Does plaintiff’s application for extension of the city water mains meet the requirements of the mentioned statute? The answer is no. The application was nothing more than a request by the developer for installation of water mains into the subdivision. The applicant is under no obligation to purchase water, only that a certain quantity of water will be used. The application was not signed by fifty percent of the persons, firms or corporations, who were bona fide resident property owners along the line of the proposed extension, as the statute required. It would seem apparent that the legislature intended the city would be assured of a permanent development of an addition before installation of water mains. Such development contemplates people living in the community along the line of the proposed extension, and was to protect the city against purely promotional projects. A developer who is the owner of an entire addition is not a bona fide resident property owner within the meaning of the mentioned statute. The term “bona fide resident property owners along the line of the proposed extension” as used in the mentioned statute means as the trial court concluded, property owners who have established a residence along the line of the proposed water main extension, fifty percent of whom shall contract with the city to use a supply of water for a period of two years.
The bond that the plaintiff tendered to the city appeared on its face to be inadequate, in that there was no contract between the parties. Therefore, the bond secured nothing. The bond contemplated by the statute is for the performance of a contract to purchase water, and must be in such an amount as would insure adequate security for the amount of water to be purchased for a period of two years, and must otherwise comply with the statute.
Plaintiff stressed the fact that the city on all previous occasions had not enforced the provisions of the statute requiring developers of additions to the city to install water mains into their additions, or to supply the statutory bond in lieu thereof, and to now require plaintiff to comply with the statute is a discrimination against it. It is a well-settled rule that the failure of proper officials to see that a statute or ordinance is enforced and complied with does not make such statute or ordinance inoperative for that reason. (Leigh v. City of Wichita, 148 Kan. 607, 613, 83 P. 2d 644, 119 A. L. R. 1503, see anno. p. 1509.) Estoppel based upon unauthorized acts of officials of governmental agencies for failure to comply with a mandate of the legislature cannot be successfully invoked against a municipality. (Sedgwick County Comm'rs v. Conners, 121 Kan. 105, 245 Pac. 1030.) A statute which has remained unenforced for a long period does not become inoperative for that reason. (Kelly v. Washington, 302 U. S. 1, 58 S. Ct. 87, 82 L. ed. 3.)
Considerable argument was presented in the briefs of counsel for the respective parties relative to certain rules and regulations passed by the city planning commission as to whether they were adopted, amended or repealed by the city governing body. We are of the opinion they are immaterial to the questions involved in this action. The aforementioned statute is controlling, and any attempt on the part of the planning commission or the governing body of the city to waive or alter the direct mandate of the legislature would be ineffectual and a nullity. Our authorities all hold that the only powers possessed by a city, or a political subdivision thereof, are those granted it by the legislature. It follows that the judgment of the trial court is affirmed.
It is so ordered.
Price, J., not participating. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action in which the plaintiff sought to have his interest in an oil and gas lease determined. The defendant Cooperative Refinery Association, later referred to as C. R. A., and its co-defendants Grant demurred to plaintiff’s petition and that demurrer being overruled, an appeal to this court was perfected by them.
The following facts are disclosed by the allegations of the petition and the exhibits attached to it. All of the real estate hereafter mentioned lies in Township 18 South, in Range 26 West, in Ness County. Prior to September 9,1947, Howell owned oil and gas leases on three tracts in sections 14, 23 and 24 containing a total of 400 acres, the leases providing for a one-eighth interest to the lessors and a seven-eighths interest to the lessee, and at that time he was negotiating with the owners thereof for oil and gas leases on other tracts in sections 13 and 14 containing 240 acres and abutting the above 400 acres. On the above date Howell entered into a contract with C. R. A. in which Howell agreed to obtain the lease on the 240 acres and assign all of the leases to C. R. A. reserving and retaining to himself an overriding royalty of one-sixteenth of the lessee’s interest and .C. R. A. agreed to drill an oil and gas well at a designated location under conditions not of present importance. The present controversy arises out of the tenth paragraph of the above contract, which recites as follows:
“Tenth: It is further understood that the parties hereto will attempt to secure an oil and gas lease covering the
West Half (WK) of Section 23, Township 18 South, Range 26 West of the 6th P. M., Ness County, Kansas;
which if obtained is to be for a consideration not to exceed $2.00 per acre, unless otherwise authorized by C. R. A., and said lease is to be taken in the name of Howell, C. R. A. to pay for said lease if obtained, and Howell to assign tire entire lessee’s interest to C. R. A., retaining unto himself an overriding royalty of l/32nd of %ths working interest, free and clear of any and all cost of development and operating expense, except as to taxes that may be levied and assessed against said reserved interest; it being specifically understood thai it is not mandatory upon Howell to secure the said lease.”
It is noted here that the lands last described abut the block of lands in the leases first mentioned on the south and west sides, and the whole constitutes a block of 960 acres. After the above contract was executed leases were taken in the name of Howell on the lands described in paragraph ten, dated September 9, 1947, and for a primary term of three years and as long as oil or gas was produced, and under date of October 16, 1947, Howell assigned the leases to C. R. A. reserving an undivided interest in all oil, gas and casing-head gas produced and saved “from the above described oil and gas leasehold estate, or any. extension or renewal thereof, . . . The provisions hereof shall be construed as covenants running with the lands and the leasehold estate conveyed hereby, and shall be binding upon the successors in interest of the Assignor and Assignee herein.” C. R. A. did nothing to perpetuate this lease prior to September 9, 1950, and on October 16, 1950, released the same of record. Later and under date of October 24, 1951, C. R. A. obtained a new oil and gas lease on the same lands from the owners thereof for a primary term of one year and as long thereafter as oil and gas was produced.
W. A. Grant and Elaine Grant have some interest in the lease on the west half of section 23, but generally they will not be separately referred to in our review of the pleadings.
On November 16, 1953, plaintiff commenced the instant action. In his petition Howell alleged the status of the defendants and that he was a geologist experienced in the development of lands for oil and gas purposes and prior to September 9, 1947, was the owner of leases on the 400 acres above mentioned and was negotiating for leases on the 240 acres above mentioned, and in connection with such leases he had prepared valuable and confidential geological maps and information and submitted them to C. R. A. with a proposal that C. R. A. purchase the leases and drill a test well under an arrangement that Howell was to retain an overriding royalty as part of the consideration, and that on September 9, 1947, C. R. A. accepted his offer and the contract was reduced to writing; that he fully performed the contract and in accordance with paragraph 10, quoted above, obtained leases which he assigned to C. R. A. reserving an overriding royalty to himself, and by reason of the filing and recording of the same all parties in interest claiming under C. R. A. had notice of his rights. He further alleged that about November 1, 1947, C. R. A. commenced the drilling of a test well on a location in section 24 which was cpmpleted as a commercial producer of oil on January 27, 1948, and thereafter and prior to September 9, 1950, C. R. A. drilled and completed three commercial producers and one dry hole at various locations on the northeast quarter of section 23; that for some reason unknown to Howell, C. R. A. failed and refused to drill a well on the west hálf of section 23 and thereby perpetuate the lease by production prior to September 9, 1950, and on October 16, 1950, C. R. A. released the lease; that prior to the expiration of the leases on the west half of section 23, Howell called attention of C. R. A. to the fact the leases were about to expire and would have to be renewed and from that time until the leases were eventually renewed he continued to work with C. R. A. to assist in their renewal and the development of the block of acreage, and during the time from the expiration of the first leases until their renewal C. R. A. made repeated efforts to obtain renewals; in September, 1951, C. R. A., at the insistence and suggestion of Howell, made contact with one Levan, who was acquainted with the owners of the land, to obtain additional geological information and to secure a renewal lease, and on October 24, 1951, Levan obtained an oil and gas lease, heretofore mentioned; that the lease so obtained was in fact a renewal of the leases assigned by Howell to C. R. A., and that under the terms of his contract with C. R. A. and of his assign ment of the leases from Howell to C. R. A. reserving an overriding royalty to him, he was the owner of an overriding royalty in the lands covered by the renewal leases; that for a reasonable time after the acquisition and recording of the renewal lease, Howell, not being informed to the contrary, believed the C. R. A. intended to and would in due course, deliver to him an assignment of his overriding royalty interest in the lease; that about the time the first test well was commenced on the west half of section 23 by C. R. A., Howell made inquiry and demand on C. R. A. for an assignment which C. R. A. refused. After alleging the respective interests of C. R. A. and the Grants, it was further alleged that with full knowledge of Howell’s rights, they drilled and completed two producing wells on the west half of section 23. Allegations of the interest of Wichita Bank for Cooperatives need not be noticed. Howell further alleged he was owner of an overriding royalty from the lease on the west half of section 23, and entitled to a conveyance thereof and for an accounting and he prayed accordingly.
The C. R. A. and the Grants demurred to the petition on the grounds that several causes of action were improperly joined and. that the petition did not state facts sufficient to constitute a cause of action. This demurrer was overruled and an appeal to this court followed, the only specification of error being that the trial court erred in overruling the demutrer.
We first note that in this court no contention is made there was any misjoinder of causes of action, and that phase of the demurrer will not be discussed.
A summary statement of appellants’ contention is: 1. That no cause of action exists unless the second lease of October 24, 1951, is a renewal of the first leases of September 9, 1947, assigned to C. R. A. on October 16, 1947; 2. That the second lease was not an extension or renewal of the first leases; and 3. That the provisions of the assignment of October 16, 1947, ■ violated the rule against perpetuities.
Taking up the first contention appellants contend that no fiduciary relation existed between them and appellee (citing Robinson v. Eagle-Picher Lead Co., 132 Kan. 860, 297 Pac. 697); that they were under no obligation to drill a well or renew the lease (citing Matthews v. Ramsey-Lloyd Oil Co., 121 Kan. 75, 245 Pac. 1064), and that an overriding royalty interest under one lease does not attach under a subsequent lease (citing Gordon v. Empire Gas & Fuel Co., 63 F. 2d 487; Goocey v. Hopkins, 206 Ky. 176, 266 S. W. 1087; Wier v. Glassell, 216 La. 828, 44 So. 2d 882).
Appellee answers contending that none of the cases relied on by appellants involve a situation where the assignment of the lease covered renewals or extensions of the lease,- and directs attention to Probst v. Hughes, 143 Okla. 11, 286 Pac. 875, 69 A. L. R. 929, involving a situation similar to that now presented, and where it was held that a fiduciary relation between assignor and assignee did exist. He relies also on Lonabaugh v. Midwest Refining Co., 285 Fed. 63; Kennedy v. Seaboard Oil Co. of Delaware, 99 F. Supp. 730; Oldland v. Gray, 179 F. 2d 408, and Hivick v. Urschel, 171 Okla. 17, 40 P. 2d 1077. By way of a reply brief, appellants say that the cases cited by the appellee are not in point or are to be distinguished.
While in a broad sense and as pertinent here “confidential relation” may be defined as meaning a relationship between business associates that would lead an ordinarily prudent person in the management of his business to repose that degree of confidence in another which results in the substitution of the other’s will and judgment for his in material matters involved, it has been defined in the law as any relation existing between the parties to a transaction wherein one party is bound to act with utmost good faith for the benefit of the other party, 15 C. J. S. 821.
We think it unnecessary to take up each case cited by the opposing parties, to analyze it and to point out wherein it supports a particular contention, or may possibly be distinguishable insofar as the factual situation is concerned. The cases have been examined, and in our opinion the proper conclusion to be drawn from them is fairly stated in 24 Am. Jur. 590, where it is said:
“§ 82. Relationship Arising from Transfers. — While the transfer of a lease does not ordinarily create any confidential relationship between the parties, this is not, of course, always the case. The terms of the conveyance may be such as to impose upon the assignee or sublessee the duty of protecting the interests of the assignor or sublessor; and, whenever they are of such character, he must comply with the general rules that govern the conduct of persons occupying a trust status, and any effort on his part to procure from the lessor rights antagonistic to those of the assignor will be defeated. Thus, when an assignment expressly provides that any extension or renewal of the lease shall be subject to the overriding royalty therein agreed upon, the courts will regard a new lease procured by the assignee as an extension or renewal of the old one and charge it with the royalty so reserved, even though it was not granted until production under the former lease had come to an end.”
The question whether a confidential relation existed between Howell and C. R. A. may be said to extend back to and have its origin in the contract of September 9, 1947, where under the tenth paragraph it was stated:
“It is further understood that the parties hereto will attempt to secure an oil and gas lease . . . to be taken in the name of Howell, C. R. A. to pay for said lease if obtained, and Howell to assign the entire lessee’s interest to C. R. A., retaining unto himself an overriding royalty . . .”
This language is easily susceptible of interpretation as providing for at least a form of joint interest and joint ownership, for as stated' the parties are to attempt to secure the lease, and if it is secured what is to be done. As alleged in the petition Howell did get the lease and he did assign it to C. R. A., the assignment reserving to him the agreed overriding royalty “from the above described oil and gas leasehold estate, or any extension or renewal thereof,” and the assignment was accepted by C. R. A. In our opinion the allegations of the petition are sufficient to charge a confidential relation between C. R. A. and Howell, and, under the facts pleaded, C. R. A. was under obligation to keep the lease in force by development, or if it did not do so and the lease was renewed or extended, Howell’s right to the overriding royalty continued.
Appellants contend that the lease of October 24, 1951, to C. R. A. on the west half of section 23 was not a renewal of the leases of September 9,1947, assigned to C. R. A. by Howell and our attention is directed to the fact that Howell had one lease on the north half of the tract and another on the south half thereof, while the C. R. A. lease was a single lease on the whole tract; that the original leases had a primary term of three years, while the last lease had a primary term of only one year; that the first leases expired September 9,1950, and the second lease was not made until October 24, 1951, or over thirteen months after expiration of the first leases. Appellants state they have found no case very closely in point, but after citing definitions of the words “renewal” and “extension” they argue that by reason of the differences in the leases as above noted, the second lease may not be said to be either renewal or extension of the leases assigned to them by Howell. Appellants denominate Howell’s allegation that he continued to work with C. R. A. to assist in the renewal of the leases as a conclusion rather than an allegation of fact; that he was under no obligation to do anything and if he volunteered his assistance C. R. A. did not incur any new or independant liability by accepting his assistance. We note that appellants did not motion the petition and the rule of strict construction has no application. Further, it is not proper to say that Howell’s allegation lie assisted in procuring a renewal is a conclusion not admitted by the demurrer for the whole allegation is broader and includes that he called attention of C. R. A. to the fact the original leases were about to expire; that he suggested and insisted that Levan be employed to obtain additional geological information and to secure new leases, and that that was done. The confidential relation between C. R. A. and Howell was not a one-sided one. Each owed the other mutual duties. Nor do we place any undue weight on the length of time elapsing between expiration of the first leases and execution of the last lease, for under the allegations of the petition before the first leases had expired C. R. A. had made repeated efforts to obtain a new lease and had negotiated for a new lease, and after acting on the suggestion of Howell that Levan be employed to secure additional geological information and a new lease, Levan was employed and the new lease was procured. We do not know just what the evidence on a trial may disclose, but at least so far as the allegations of the petition are concerned we think it must be said that the second lease is to be construed as a renewal or extension of the former leases on the involved tract.
Appellants also direct attention to that part of Howell’s assignment of the leases to C. R. A. reserving an overriding royalty from the leasehold estate and especially to the phrase “or any extension or renewal thereof” and to the sentence that the provisions of the assignment shall be construed as covenants running with the lands and leasehold estate, and shall be binding upon the successors in interest of the parties, and make an extended argument that the rule against perpetuities was violated; that the provision as to any extension or renewal, coupled with the provision as to a covenant running with the land, provided a possible contingency for an estate which might but would not necessarily become vested within a period of twenty-one years, and that in such case the provision is unenforcible. We have examined but shall not review the cases cited by appellants for as we analyze and construe the above provisions the interest of Howell in the extended lease was not one that would arise in the future and it would not be contingent. Howell’s rights under the leases or the extended lease were vested in him when the assignment was made and accepted, and in such case the rule against perpetuities has no application, McEwen v. Enoch 167 Kan. 119, 204 P. 2d 736.
The order of the trial court in ruling on the appellants’ demurrer to the appellee’s petition is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
The probate court admitted a will to probate. Respondents, opponents of the will, appealed to the district court which on a trial de novo rendered the same judgment. Respondents have appealed. We shall refer to the parties as proponents and opponents.
The district court made findings of fact and conclusions of law which are appended hereto and made a part of this opinion.
The question presented is whether the will was revoked. Paragraph two thereof, as originally executed, read:
“Second. I give, devise, and bequeath all of my personal and real property of whatsoever nature and kind and wherever situated, to my nephews, Vernon Marhofer, Jr. and Basil Marhofer, equally.”
Heavy penciled markings were later made over the names of the designated beneficiaries but the names remained discernible through the markings. The original and carbon copy of the will were each executed with all the required legal formalities. The will was ordered admitted to probate as originally typewritten.
The opponents filed a motion to strike certain findings of fact and conclusions of law three and four. Opponents state they are now complaining only of finding No. 11. They also appéal from the order overruling their demurrer to proponents’ evidence, the orders excluding evidence they offered and to the order overruling their motion for a new trial. We shall first consider the order overruling their demurrer. The ground thereof stressed here is:
“Proponents have failed to prove, or overcome the presumption of revocation, which presumption is raised by the reason of the mutilations on the instrument which they have offered herein for probate.”
The material portion of proponents’ evidence, in substance, further disclosed:
The wills were executed in 1948; Fred Amstutz, cashier of the Ransom State Bank, was the scrivener; he and Mildred Clark, assistant cashier of that bank, witnessed the signature of the testatrix; the testatrix had a third nephew called Wayne or Duane; he is a son of Orris Marhofer, brother of the testatrix; the testatrix left one will in a locked box in the Ransom bank and took the other will with her; no names of beneficiaries were marked out at that time; in the fall of 1951 testatrix returned to the same bank and asked for her bank box, which Amstutz delivered to her; he saw her remove the will from the box; he testified there were no markings on the will at that time although he did not say he opened and inspected it; Amstutz testified testatrix told him:
. . she wanted to get the will because she wasn’t satisfied with it; she wanted to destroy it, and maybe sometime malee a new one.”
Proponents’ evidence further, in substance, discloses:
Testatrix left for Arizona in February, 1952, where she remained until her death on March 26, 1952; before leaving for Arizona she left some keys with Mrs. Ivy Sweasy, a friend of long standing; a short time after her death her friend gave the keys to Orris Marhofer; after her death Vernon J. Marhofer, Jr., one of the nephews named in the will, went to decedent’s home with Ray and Olin Marhofer, brothers of the decedent; Ray had a key to the house; they found a locked trunk which they could not open; about a week later the same parties and Orris, the other brother of the decedent, returned to the house; Orris produced a key and unlocked the trunk and they examined its contents; it contained numerous keepsakes such as old linens, silverware and some papers; among them they found an envelope which contained both the wills; that was about two weeks after her death; they all looked at the wills; the wills were handed to Vernon, the nephew; he took them to Basil, the other nephew, and they delivered them to the probate court.
The opponents stress the statement Amstutz said decedent made to him when she got the will from her safety deposit box. They insist it indicated an intention to revoke the entire will and the mutilations disclose such intent was consummated. We agree the changes made indicate dissatisfaction with the will as originally executed. Whether what the testatrix did resulted in a legal revocation of the will is the question to be determined. The markings did not constitute a physical destruction of the will and she did not otherwise destroy it. Had she intended to destroy the entire will she easily might have burned, torn it or otherwise mutilated the instrument in its entirety, including her signature. She did not do any of these things. On the contrary she carefully struck out only the names of the two designated nephews in both wills. She did that in a manner indicating an intention to make the markings precisely the same on each will. She did not strike out the entire paragraph so as to indicate she intended not to leave her property to nephews. The will as changed indicates she intended to leave the property not to two of her nephews but to all three of them equally. As changed it reads:
“to my nephews, and equally.”
Instead of destroying the instruments she preserved them. She placed them together in a single envelope. She put them into her locked trunk with other papers and valuable keepsakes. It is true she also said, according to Amstutz, that she might sometime make a new will. . From the markings on the wills and the fact she preserved them it appears that, in all probability, is precisely what she erroneously believed she had effectively accomplished. Had she not thought so she probably would have had an attorney or some other scrivener draw a new will. Manifestly she was not too ill to go to an attorney for that purpose. She was able to go and did go to Arizona, leaving the instruments as indicated. These were all proper considerations in determining intent.
One of the most common mistakes of laymen is their belief that a will may be altered by striking out some provision therein or by substituting another to meet their changed desires. It is not so much the nature and extent of markings of cancellation or obliteration that govern as it is the present intention of a testator in making them that determines whether there has been a revocation of the will. (In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103.) So in the instant case we think, in view of all the circumstances, the district court was justified in concluding it was not decedent’s intention to destroy or otherwise revoke her entire will. Under our statutes there cannot be a partial revocation of a will. (In re Estate of Johannes, 170 Kan. 407, 227 P. 2d 148.)
In view of what has been said the will was not legally revoked. G. S. 1949, 59-610 provides:
“If after making a will the testator marries and has a child, by birth or adoption, the will is thereby revoked. If after making a will the testator is divorced, all provisions in such will in favor of the testator’s spouse so divorced are thereby revoked.”
G. S. 1949, 59-611 reads:
“Except as provided in section 46 [59-610], no will in writing shall be revoked or altered otherwise than by some other will in writing; or by some other writing of the testator declaring such revocation or alteration and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, tom, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or by another person in his presence by his direction.”
Statutory provisions for revocation of wills are mandatory. They must be strictly construed. A will can be revoked only in the manner provided by statute. (In re Estate of Grattan, 157 Kan. 116, 138 P. 2d 497; In re Estate of Kemper, supra; In re Estate of Rinker, 158 Kan. 406, 147 P. 2d 740; In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544; In re Estate of Johannes, supra.) The trial court found that instead of destruction there was reconstruction; instead of revocation there was alteration.
Having concluded the will was not revoked what was the legal effect of the alterations? The instrument as altered was not the will the testatrix executed. Not having been executed in compliance with legal requirements the altered instruments could not be admitted to probate as a last will and testament.
Did the testatrix die intestate? We do not think so. In 1 Bartlett’s Kansas Probate Law and Practice, rev. ed., § 430, dealing with changes such as the instant one the rule is stated as follows:
“It follows in such cases that the failure of the testator to execute his purpose in the manner prescribed by the statute prevents it from going into effect as a testamentary disposition; and, as it is apparent that he had no intent to revoke except by way of alteration, if the word or words erased have not been so obliterated as to be illegible, there is no revocation, and the will remains intact as before.” (p. 505.)
In our recent case of In re Estate of Johannes, supra, the principle here involved was fully discussed. We held:
“When partial revocation by burning, tearing, cancelling, obliterating or destroying a part or parts of a will is attempted, such revocation is innocuous and the will should be probated in its original form if the provisions as originally existing, but attempted to be revoked, can be determined from an inspection of the will itself or can be ascertained by extrinsic proof.
“Where a will otherwise executed according to law, but showing one paragraph thereof to have been obliterated, is offered for probate, probate should be allowed in its original form if the content of the obliterated paragraph can be determined by extrinsic proof.” (Syl. ¶ 5, 6.)
In the instant case the names over which pencil markings were made were determinable through the markings. No extrinsic evidence was required to make them legible.
For the purpose of the demurrer the testimony, oral and written, and all reasonable inferences to be drawn therefrom are admitted. That, of course, includes the testimony of the proponents that decedent had a third nephew. The latter fact was testified to by one of her nephews, Vernon J. Marhofer, Jr., as follows:
“Q. Did Lona Grisell have any other nephews, other than you and Basil? A. Yes.
“Q. Who? A. Wayne or Duane; I am not sure.
“Q. Whose son was he? A. Orris.
“Q. And Orris was a brother of the decedent, Lona Grisell? A. Yes.”
Opponents contend this evidence was insufficient to show when decedent had such a nephew or that she had such a nephew when she made the markings on the will. It seems to us that is a strained construction of the testimony when challenged by demurrer. It must be remembered the testatrix was dead at the time of the trial. Manifestly, the proper question to the witness at that time would not have been, “Does Lona Grisell have any other nephew?” Whether there were three nephews was a vital point in the lawsuit. The witness was not cross-examined relative to a third nephew. The fact there was a third nephew does not appear to have been questioned, much less disputed, in the proponents’ case in chief.
Moreover, we also have noted that Orris M. Marhofer, one of the opponents of the will, is the father of the third nephew. Orris Marhofer testified in opposition to the probate of the will. He did not even remotely intimate he did not presently have a son by the name of Wayne or Duane. He possessed that important information and surely would have denied that testimony had it not been true. Under such circumstances it is presumed his testimony on the subject would have been unfavorable to his position as an opponent of the will. Failure of a party to throw light upon an issue peculiarly within his own knowledge or reach raises a presumption open to explanation, of course, that the concealed information is unfavorable to him. (Donley v. Amerada Petroleum Corp., 152 Kan. 518, 106 P. 2d 652; Henks v. Panning, 175 Kan. 424, 430-431, 264 P. 2d 483.) Momentarily, however, we are concerned only with opponents’ demurrer. Reasonable inferences to be drawn from the testimony of the proponents is that decedent had a third nephew.
The burden of proof to show revocation of a will is on the party asserting revocation. (In re Estate of Rinker, supra.)
Opponents contend there was no conflict in the oral testimony on behalf of the proponents and that this court therefore has the duty to pass upon that evidence as well as the trial court. Assuming that to be true the evidence was sufficient to convince the trial court and this court that decedent did not intend to revoke her entire will. The demurrer, therefore, was properly overruled.
We come now to the findings of fact. Opponents criticize only finding No. 11 on which they claim conclusion of law No. 3 is based. They contend that finding is based on. a series of conjectures among which they include the testimony, previously discussed, that the decedent had a third nephew. We shall not repeat what was previously said concerning a third nephew. That fact was not a mere presumption. The changes made in the will tend to indicate without further testimony that decedent desired to include all three of her nephews as beneficiaries. That fact is a reasonable inference to be drawn from all the circumstances and the testimony. It is not a bare presumption based on conjecture. Moreover, conclusion of law No. 3 finds support in the findings of fact other than finding No. 11. Furthermore, the alterations in the will of necessity indicate the testatrix deliberated and considered the changes she desired to make or she would not have made them.
We come now to opponents’ contention evidence they offered was improperly excluded. The vice-president of the Arnold State Bank, another bank in which the testatrix did considerable business and in which she had an unlocked box, testified over proponents’ objection concerning a conversation he had with the testatrix before she left on a trip to Arizona. That testimony was:
“She said, ‘I should have a will. I must make one’; I said, ‘That is fine. If I were you, I would go and see an attorney and have him make one for you.’ She told me at that time that as soon as she got feeling better that that is what she would do, but she wasn’t too well.”
The court struck the last part of the statement that “she wasn’t too well” on the ground it was not responsive to the question. The witness first stated the conversation occurred about ten days before testatrix left for Arizona but later testified it occurred sometime within sixty days before she left.
Another witness, who at times advised the testatrix relative to certain investments, testified concerning a conversation he had with the testatrix in December, 1951, before she left for Arizona, which was about the middle of February, 1952. That testimony was:
“In December, I asked if she had a will made out. She said, ‘No.’ I said, ‘You better get busy and make one.’ She said, T will. I should.’ I said, ‘To do that, you have to have a lawyer. I know nothing of wills.’ ”
The court admitted the statements of both witnesses over proponents’ objections and a motion to strike the testimony but reserved its final ruling thereon. The testimony of both witnesses was later excluded. .
Opponents contend the testimony was competent as disclosing an intention of the testatrix to revoke her will. It will be observed there was no testimony these conversations occurred after the testatrix had made her own alterations in the will. The conversations, therefore, may have occurred before she had made the alterations. She erroneously may have concluded, as previously indicated herein, the alterations she made were, legally sufficient without executing another will with the formalities required by law. Notwithstanding the testimony of these witnesses the court was confronted with the fact the testatrix had actually altered her will before' she left for Arizona in the middle of February, 1952. The court also knew she had altered both wills in the same identical manner in order to make certain her intentions were clear. There were other important facts before the court. The court knew she had put both wills in one envelope, in their altered, form, and had locked the trunk' in which she placed them. Manifestly, she intended to preserve both instruments in their altered form. ‘ These facts indicate she may have concluded the will, as altered, was legally sufficient or they may indicate deliberative intent to have a new will drawn on her return pursuant to the alterations indicated therein. If the latter were her intention she failed to accomplish it as she died before her return. Under these circumstances, as already indicated, there was ample room to conclude the testatrix did not intend destruction but reconstruction of her will; that she intended alteration rather than revocation of the entire will. Therefore, only the will as originally executed could be admitted to probate. Of course, ordinarily proper testimony disclosing an intention to. revoke a will is admissible. Assuming the testimony of the witnesses was competent we fail to see how its exclusion constitutes reversible error in this case. Opponents argue there was no conflict in the testimony and this court may pass upon its effect in the same manner as the trial court. Viewing the record in its entirety we think we' would not be justified in reversing the decision of the trial court even if we considered the evidence of the witnesses as competent. In passing we also may say this testimony was cumulative in its character as the court had admitted similar testimony in the cross-examination of one of proponents’ witnesses over objections of proponents’ counsel. Proponents have not cross-appealed from that ruling and we shall not pursue the matter.
It frankly should be conceded there is respectable authority in some jurisdictions to support a contrary decision. Able counsel for opponents have forcibly directed our attention thereto. We do not deem it necessary to review the cited cases. The principal questions involved received extended consideration in the Johannes case, supra. We have re-examined that decision and adhere to it.
The judgment of the district court is affirmed.
“FINDINGS OF FACT.
“1. LONA B. GRISELL, a resident of Ness County, Kansas, died at the age of 71 years, on the 26th day of March, 1952, at Tempe, Arizona. She was a widow; had no children, and her sole and surviving heirs at law were her brothers, Orris W. Marhofer, Ray N. Marhofer and Olin J. Marhofer; and Vernon J. Marhofer, a nephew, and Doris M. Kraus, a niece, children of Vernon Marhofer, who died in July, 1951. In addition to Vernon J. Marhofer she left two other nephews, Basil C. Marhofer, son of Olin J. Marhofer, and Wayne or Duane Marhofer, son of Orris W. Marhofer.
“2. The inventory of her estate shows real estate of the value of about $140,000.00; stocks and bonds and other personal property of the value of about $30,000.00. Commencing with the year 1936, Lona B. Grisell purchased at different times stocks and bonds for the benefit of her different brothers. These stocks and bonds were taken in the name of Lona B. Grisell as trustee for her different brothers. About February 15th, 1952, she purchased United States Savings Bonds in the amount of $2,250.00; $750.00 in the name of Lona B. Grisell or O. J. Marhofer; $750.00 in the name of Lona B. Grisell or R. N. Marhofer; and $750.00 in the name of Lona B. Grisell or John Marhofer. (Her nephew.)
“3. Lona B. Grisell was a well educated person; school teacher and pharmacist. During her married life she resided at Ransom, Kansas. After she became a widow she moved to Johnson, Kansas, at which place she operated a drug store for a number of years. She was a successful business woman, and the greater part of her estate was accumulated by her after she became a widow. That at all times Lona B. Grisell was of sound mind and disposing memory, and entirely competent to make or revoke a will. The last few years of her life she resided on one of her farms between Ransom, Kansas, and Arnold, Kansas. This farm was located about two miles southeast of Arnold. Her business was carried on through the bank at Johnson, Kansas; the First State Bank at Ransom, Kansas, and the Arnold State Bank. In the last two named banks, during the later years of her life, she kept a strong box, or safety deposit box.
“The deposit box in the Ransom State Bank was a locked box. The deposit box at the Arnold State Bank was not a locked box. In February 1952, Lona B. Grisell purchased some bonds. These were ordered by Mr. Leslie Fry and upon their arrival were placed by him in the deposit box, in the absence of Lona B. Grisell.
“4. That on the 19th day of July, 1948, Lona B. Grisell went to the First State Bank of Ransom, Kansas. She requested Fred Amstutz, a cashier of the bank, to draw a will for her and told him the terms of the will. Two copies of the will were made. Each copy was executed by Lona B. Grisell and each copy was witnessed. One of the copies of the will she left in her safety deposit box in the Ransom State Bank, and the other copy she took with her. Under the second paragraph of her will she devised her entire estate to my nephews, Basil C. Marhofer and Vernon J. Marhofer, Jr., equally.’ In the third paragraph she appointed Vernon J. Marhofer, Sr., as her sole executor. Vernon Marhofer, Sr., died in July, 1951.
“5. In the fall of 1951 Lona B. Grisell went to the First State Bank at Ransom, Kansas, and asked for her safety deposit box. She took from the safety deposit box her will, and at that time stated that she wanted to get the will because she wasn’t satisfied with it; she wanted to destroy it, and might make another one. She took the will with her at that time.
“6. In February of 1952 Lona B. Grisell went to the Arnold State Bank and stated she was not in good health and intended to go to Arizona for her health. She was advised to gather up her valuable papers and leave them at the Arnold State Bank, some of the papers at that time being in Johnson, Kansas. A few days thereafter she appeared with some jewelry and papers and placed them in her safety deposit box. This box was later found to contain her stocks and bonds. Also some deeds to real estate, oil leases, abstracts, deposit slips, some jewelry and other items.
“7. About the middle of February, she gave to Ivy Sweasy, a close friend of hers, some keys and then went to Tempe, Arizona. Her brother Orris Marhofer taking her to Liberal, from which point she took the train. Later, in response to a call, Orris Marhofer went to Tempe, Arizona, and he was there at the time of her death. Her belongings were delivered to him, which included her bag, or purse.
“After the funeral Orris Marhofer went to Ivy Sweasy and obtained from her the keys which Lona B. Grisell left there. He took Lona B. Grisell’s purse and left them in her house. Then he went to Tribune, Kansas. A few days thereafter the parties interested met at the residence of Lona B. Grisell. Orris Marhofer, from his person, produced keys to unlock a trunk and cedar chest which had been left locked by Lona B. Grisell. The keys to the cedar chest and trunk, having been obtained by Orris Marhofer. either from her purse, or from Ivy Sweasy. The keys were then kept by Orris Marhofer, until the trunk was unlocked.
“8. The above mentioned trunk was in a second floor bedroom. It contained a removable tray. In this tray, on top, were articles, largely of a sentimental value, such as jewelry, linens, silverware, and other odds and ends. Underneath these articles, but in tire tray, was found an envelope which contained the two copies of the will hereinbefore described. An examination showed the names of Basil C. Marhofer and Vernon J. Marhofer, Jr., had been marked through several times with pencil.
“The cedar chest contained goods; dress goods; an old quilt, which she valued as a keepsake; some dolls; her parents’ marriage license; and other articles.
“The pencil markings on each copy covered practically all of both names. They were almost identical on each copy as though one was made and then the other made with an intent to make exactly the same markings on the other copy. The names were however, readily distinguishable through such markings on both copies of the will.
“9. There was some evidence offered that these markings were not on the copy of the will at the time it was taken from the bank by Lona B. Grisell in the fall of 1951. The witness however did not testify that he made an examination of the will at that time. He stated he saw the will. A will left in a safety deposit box is usually folded. There was no testimony of the witness that he unfolded the will and examined it; no testimony of the witness that after he handed the will to Lona B. Grisell she unfolded the will and showed it to him; no evidence of an examination of the will that would justify the conclusion drawn by the witness that there were no pencil markings on the will. The court is unable therefore to determine whether or not the pencil markings were on the will at the time it was taken from the bank and there is no other evidence to show as to when the pencil markings were made on the different copies of the will.
“10. The copies of the will were found in a locked trunk in the home of Lona B. Grisell and the Court presumes the markings were made (at some time unknown) by Lona B. Grisell.
“11. At the time Lona B. Grisell made the pencil cross marks and lines through the names of Basil C. Marhofer and Vernon J. Marhofer, Jr.,-on the two copies of the wills, she was deliberating upon, and considering, the matter of altering or changing said paragraph merely for the purpose of reallocating among her nephews the property therein described; but it was not her intention to revoke the wills, or any part of the same, and no intention or act manifesting such intention to revoke was ever consummated.
“CONCLUSIONS OF LAW.
“1. The parties agree that at all times Lona B. Grisell was mentally competent to make or revoke a will and that the two copies of the will were executed and witnessed as required by law.
“2. Lona'B. Grisell made the pencil markings on the copies of the will. Two copies of the will were made in 1948. One copy was left in her deposit box in the First State Bank of Ransom, Kansas and the other copy she took with her. In the fall of 1951 she obtained the copy at the bank. After her death in March, 1952, the two copies of the will were found in a locked trunk in her home. Under these circumstances, the presumption is that the pencil markings across the names were made by Lona B. Grisell. Sellareis vs. Kirby, 82 Kans. 291 at 298. The evidence offered as to Orris Marhofer obtaining and keeping the key to the trunk is insufficient to overcome the above-described presumption.
"3. The pencil marks across- the names on the copies of the will were not made by testatrix with an intent to cancel, revoke or destroy said will or any part thereof.
“4. The will offered is the Last Will and Testament of Lona B. Grisell and should be admitted to probate as originally typewritten.” | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by Standard Steel Works, a corporation, against Crutcher-Rolfs-Cummings, Incorporated, a foreign corporation, to recover a money judgment for alleged breach of two sales contracts.
The petition was framed in two counts. Service was sought on the principal defendant by publication. The action was filed in McPherson county in which service was had on one garnishee defendant and on another garnishee defendant in Butler county.
The defendant appeared specially by motion to quash the publication service. That motion and defendant’s demurrer to both causes of action were overruled. The appeal is from those two orders.
Before treating the appeal on its merits we' shall consider appellee’s contention the appeal from the order overruling the motion to quash the publication service must be dismissed. Appellee, in substance, contends:
Under G. S. 1949, 60-3309 appeals from judgments and appealable orders may be taken only within two months from their date; the order overruling the motion to quash the service of summons does not determine the action or prevent a judgment; the ruling on the motion is neither a judgment nor a final and appealable order within the meaning of G. S. 1949, 60-3302, 60-3303; more than five months elapsed after the ruling on the motion before the appeal therefrom was perfected and the appeal from that ruling must be dismissed.
Appellee cites numerous decisions of this court which support its contention. Appellee, however, overlooks the interpretation recently placed by a majority of this court on a later 1951 enactment. It is G. S. 1953 Supp. 60-3314a, which reads:
“When an appeal or cross-appeal has been timely perfected the fact that some ruling of which the appealing or cross-appealing party complains was made more than two months before he perfected his appeal shall not prevent a review of the ruling.”
An order sustaining or overruling a demurrer is an appealable order. (G. S. 1949, 60-3302, Second.) Here the appeal from the order overruling the motion and the demurrer were filed on the same date, which was within two months after the ruling on the demurrer. It is true the order overruling the motion to quash the service did not determine the action or prevent a judgment as would an order which sustained such a motion. It is also true no separate or independent appeal would lie at any time from this ruling on the motion. The contention presently made by appellee was quite fully treated in Western Shale Products Co. v. City of Fort Scott, 175 Kan. 643, 266 P. 2d 327. The court held:
“G. S. 1951 Supp. 60-3314a, examined, considered and held: It was intended when an appeal has been properly perfected, although prior to final judgment, from an appealable order, that the party appealing, or cross-appealing, should have a right of review of any ruling complained of which was made more than two months before the appeal was perfected, although no separate appeal was taken therefrom or the ruling is one from which an independent appeal does not he such as, in the instant case, orders overruling plaintiff’s separate motions to make one of the city’s answers definite and certain and to strike portions thereof.” (Syl. f 8.)
That decision is controlling. It follows the order overruling the motion to quash the service is reviewable.
Was the ruling erroneous? The action was filed in McPherson county on December 9, 1952. On that date appellee filed two affidavits. One was for publication service on the nonresident defendant, appellant. The other was for garnishment summons on M. E. White, doing business as M. E. White Construction Company in McPherson county and on Roy L. Smith and Sons, Incorporated, in Butler county. The first mentioned garnishment summons was served on the same day. The second was served in Butler county the next day. The notice of suit against appellant was first published in a McPherson county newspaper on December 12, 1952. In addition to notifying appellant of the money judgment sought against it the notice stated:
“. . . and you are further notified that your money, property, credits and effects in the possession or under the control of M. E. White doing business as M. E. White Pipe Line Construction Company, and your money, property, credits and effects in the possession or under the control of R. L. Smith & Son, Inc., has been garnisheed herein and you are hereby required to plead to said petition on or before January 23, 1953, in said Court in said city of McPherson, state of Kansas. Should you fail therein judgment and decree will be entered in due course upon said petition and said money, property, credits and effects garnisheed herein will be applied upon such judgment.”
The garnishee defendants filed answers on January 13 and January 15,1953, respectively, in which each admitted being indebted to appellant. Neither of the defendant garnishees is a party to this appeal.
Appellant appeared specially and moved to quash the publication service on grounds which will be considered under its present contentions.
Appellant first contends the legislature did not intend to vest a district court in which an action is filed with jurisdiction over property or credits of a defendant irrespective of the county in which they might be located. The specific contention is the district court of McPherson county could not reach the funds in the hands of the Butler county garnishee. It seems to us that question has become moot. That garnishee entered his general appearance by filing an answer admitting his indebtedness to appellant. However, we believe the publication service was good as to the defendant garnishee in Butler county.
An action against a nonresident defendant may be brought in any county in which there may be property of, or debts owing to, such defendant. (G. S. 1949, 60-507.) The venue of this action, therefore, was properly laid in McPherson county as one garnishee was served in that county on the day the action was filed. The district court, therefore, acquired jurisdiction over that fund in McPherson county.
Was a valid garnishee summons issued to Butler county? Any number of garnishees may be embraced in the same affidavit and summons. (G. S. 1949, 60-941.)
The pertinent part of G. S. 1949, 60-943, pertaining to summons for garnishment, provides:
“Upon the filing of such affidavit a garnishee summons shall be issued by the clerk and served upon the defendant or his attorney of record, and each of the garnishees, in the manner provided for service of summons, and shall be returned with proof of service in five days.” (Our italics.)
From the language in the foregoing statute it is clear personal service on the defendant in McPherson county was not required. It is observed the statute provides summons may be served on the defendant in the manner provided for service of summons. Service by publication is one of them.
G. S. 1949, 60-944 provides:
“The plaintiff may in like manner subsequently proceed within the period limited against other garnishees, or against the same garnishees after they shall have once been discharged, upon a new affidavit, if he shall have reason to believe they have subsequently become liable; and he may proceed against garnishees resident in other counties than that in which the action is pending; but if an issue for trial shall be joined between the plaintiff and such garnishee the court may on motion change the place of trial of such issue to the county of the garnishee’s residence.” (Our italics.)
Garnishment is simply a form of attachment in the hands of a third party. (Bank v. Davis, 109 Kan. 758, 202 Pac. 97; First National Bank v. Bryant, 168 Kan. 471, 213 P. 2d 1002.)
G. S. 1949, 60-906 reads:
“Orders of attachment may be issued to the sheriffs of different counties, and several of them may, at the option of the plaintiff, be issued at the same time, or in succession. . . .”
Appellant’s reliance on Searing v. Benton, 41 Kan. 758, 21 Pac. 800, has not been overlooked. In that case, filed in Shawnee county, the garnishee defendant served in Shawnee county was not indebted to the principal defendant, a nonresident of the state, and hence service on garnishee defendants in Pottawatomie county was held invalid. It is true the opinion in that case contains some language which may be somewhat confusing. It is this:
“They [referring to garnishees in Pottawatomie county] were not, however, residents of Shawnee county, and an action brought in that county would not give the court jurisdiction of them in Pottawatomie county unless service had first been obtained upon some defendant in Shawnee county.” (p. 761..) (Italics supplied.)
The italicized words, “some defendant,” contained in the foregoing quotation, clearly were intended to mean some garnishee defendant and not some principal defendant. The only principal defendant was a nonresident of the state. Properly interpreted the decision supports appellee’s contention.
Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785, relied on by appellant, is not helpful to it. In the instant case no transitory cause of action, as in the Neal case, was engrafted on a local action by amendment, after the garnishee defendant was served in Rutler county.
Appellant next urges the publication service was premature for the reason that publication service could not be commenced until after it was established some garnishee defendant over which the court had acquired jurisdiction was actually indebted to the principal defendant. We do not believe a publication notice is required to allege previously established liability of a garnishee. G. S. 1949, 60-941 only requires that, in an action for damages founded on a contract, express or implied, the plaintiff, or some person in his behalf, file an affidavit stating the amount of plaintiff’s claim against the defendant, over and above all offsets, and stating “. . . that he verily belives that some person, naming him, is indebted to or has property, real or personal, in his possession or under his control belonging to the defendant. . . .” (Our emphasis.)
G. S. 1953 Supp. 60-2525, pertaining to constructive service, provides, in part:
“Service may be made by publication in any of die following cases:
“(3) In actions brought against a nonresident of the state or a foreign corporation having in this state property or debts owing to him sought to be taken by any of the provisional remedies or to be appropriated in any way.” (Our italics.)
The statutory form for publication notice now prescribed by G. S. 1953 Supp. 60-2527, on that particular point, likewise requires only that the notice state briefly, “the nature of the pleading and the judgment or other relief sought.” (Our italics.) It will be observed it does not say, “or other relief previously determined.”
The law of Kansas relative to garnishment was taken substantially from the statutes of the state of Wisconsin. (Nelson v. Stull, 65 Kan. 585, 68 Pac. 617.) This court, of course, is not bound by the decisions of that state construing its statutes after the date we adopted such statutes. Its later decisions, however, are persuasive. In Closson v. Chase, 158 Wis. 346, 149 N. W. 26, it is held:
“The issuance of a writ of attachment and levy upon property thereunder is not essential to a valid order for service upon a nonresident defendant by publication under sec. 2639, Stats., it being sufficient that he has property in the state and that such fact is duly brought to the attention of the court.” (Syl. IT 3.)
In the instant case, however, we need not determine whether the first publication notice to the principal defendant, appellant, could have been published before garnishment service was had on a resident of McPherson county. Here such summons had been served on the defendant garnishee in McPherson county and on the defendant garnishee in Butler county before the date of the first publication notice. We think the publication service was not premature.
We shall next determine whether the demurrer was properly overruled. It was leveled against the amended petition as a whole, against each of the two counts separately and against each item of damages alleged in count two. The ground urged by appellant here is that both causes of action are based on oral contract and are barred by the three year statute of limitations. (G. S. 1949, 60-306, Second. )
Before treating that contention we pause to observe appellant’s position that the amended petition must be strictly construed against appellee. It points out that its motion to make the original petition definite and certain and to strike portions thereof was sustained in its entirety and argues the amended petition, on demurrer, must, therefore be given a construction which is most unfavorable to appellee, citing Arensman v. Kitch, 160 Kan. 783, 165 P. 2d 441. The contention is untenable. The cited case applied the rule contended for by appellant only to the particular portion of the pleading which was amended pursuant to the court’s order. (See Syl. ¶ 3.) Of course, a party, under such circumstances, will be held to the new allegations in the trial as he was in the Arensman case, supra, but that does not mean the entire amended pleading thereafter will be strictly construed against the pleader. Such a rule of strict construction on demurrer applies only where a pleader has successfully resisted a proper motion to make a pleading, definite and certain. (State Highway Comm. v. American Mut. Liability Ins. Co., 146 Kan. 187, 70 P. 2d 20; Kinderknecht v. Hensley, 160 Kan. 637, 640, 164 P. 2d 105; Snyder v. McDowell, 166 Kan. 624, 625, 203 P. 2d 225; Emrie v. Tice, 174 Kan. 739, 258 P. 2d 332.)
In any event we shall consider the amended petition without drawing unwarranted inferences therefrom in appellee’s favor.
Was the first cause of action barred by any statute of limitations? The action was filed December 9, 1952. The first cause of action alleged, in substance:
On or about May 15, 1947, plaintiff entered into a contract to build and furnish appellant twenty asphalt hopper loading assemblies of specific design to be used in pipeline construction work at a stated price of $780 per hopper; the price was quoted to defendant by letter (a copy of the letter had not been discovered and therefore was not attached); on or about May 21, 1947, defendant responded with its written order for two such hoppers at that price; plaintiff thereafter advised defendant that if only two hoppers were purchased the price of each would be $1,100; plaintiff believed that information was contained in a letter dated June 12, 1947, but it had no copy thereof; thereafter in a letter dated June 14, 1947, defendant increased its orders to three hoppers; on July 29, 1947, plaintiff submitted to defendant by letter a new price of $1,324 for each of three hoppers, the increased price being due to alterations in design requested by defendant.
The amended petition expressly alleged:
“No exact date was fixed by the parties for completion of performance by plaintiff, but defendant’s said order No. 6812W provided that upon completion of manufacture plaintiff should hold the hoppers for shipping instructions from defendant. No exact date was fixed by the parties for completion of performance by defendant.”
The first cause of action further, in substance, alleged:
On December 31, 1947, plaintiff completed the manufacture of the three hoppers and so notified defendant by forwarding its invoice therefor; plaintiff held the three completed hoppers in its factory while awaiting shipping instructions from defendant; on September 25, 1948, defendant removed one of said hoppers from plaintiff’s factory and on October 18, 1948, defendant remitted payment therefor; on December 5, 1951, defendant removed another of said hoppers for which it remitted payment on January 4, 1952; the purchase price paid in each instance was $1,324 in accordance with the price for three hoppers previously fixed by plaintiff’s letter; plaintiff continued to hold the third hopper awaiting shipping instructions from defendant; on or about March 17, 1952, plaintiff by letter demanded payment for the third hopper; on or about May 7, 1952, defendant refused to make payment of the contract price for the third hopper; the three hoppers were manufactured especially for defendant and there was no other market for the third hopper which plaintiff retains.
Letters and invoices mentioned were attached to the amended petition.
Judgment in the first cause of action was sought in the sum of $1,324 with interest from March 13, 1952, that being the date plaintiff demanded payment for the third hopper.
Appellant insists the first cause of action is based on an oral contract and the three year statute of limitations is applicable. (G. S. 1949, 60-306, Second.) It argues that cause of action was not based on a written contract for the reason there is no allegation appellant ever accepted the price of $1,324 per hopper in writing and that the only writing signed by it fixed the price of each hopper at $780. It, therefore, asserts the contract being partly oral and partly written the five year statute of limitations (G. S. 1949, 60-306, First) does not apply, citing Fairbanks v. Koelling, 167 Kan. 361, 205 P. 2d 930. The general principle of law is properly stated in that case. There are, however, some distinguishing features between that and the instant case but we shall not pursue them. Appellant also states there was no outright allegation of an agreement that appellee would wait for payment until after delivery of the hoppers.
Appellee asserts a written agreement was alleged and appellant paid for two hoppers in accordance with the price agreed upon for each of the three hoppers but refused to pay for the third; that the five year statute of limitations applies;' the three hoppers were completed December 31, 1947, and the action having been filed on December 9, 1952, was in time even though it erroneously should be held appellee’s cause of action, under the facts of this case, accrued on December 31, 1947, the date the hoppers were completed.
Appellee further contends the payments for the first and second hoppers in October, 1948, and January, 1952, constituted part payment on the contract under G. S. 1949, 60-312, and acknowledgment of the indebtedness for the third hopper and thus tolled the statute of limitations. Appellant argues no written acceptance of the price for three hoppers was alleged and that payment for only two of them did not constitute acknowledgment of a debt on the third.
We think it is unnecessary to pursue these various contentions. As we view the facts alleged it does not affirmatively appear from the face of the petition the first cause of action was barred even though the contract be regarded as not completely in writing and that the three year statute of limitations (G. S. 1949, 60-306, Second) is applicable.
The demurrer admits:
No time was fixed for completion of the hoppers by appellee, for shipping orders by appellant after their completion, or for payment by appellant; the contract contemplated completion of the transaction by delivery of the hoppers by appellee, but only after appellant’s instructions for shipping; there could be no delivery until appellant gave such instructions; although the three hoppers were completed on December 31, 1947, appellant did not remove the first hopper until September 25, 1948; it was paid for on October 18, 1948; appellant did not remove the second hopper until December 5, 1951, and did not pay for it until January 4,1952.
In view of these admitted facts it does not affirmatively appear from the face of the petition that either of the parties intended payment for any of the hoppers was due on the date of their completion by appellee. It is true appellee forwarded an invoice to appellant on or about December 31, 1947, to notify it the hoppers had been completed. The petition discloses no attempt by appellee to insist on payment until after appellant acquired possession of the first hopper. The same was true about the second hopper, which was not delivered to appellant until December 5, 1951, and payment was not made thereon until January 4, 1952. It, therefore, would appear from the actual conduct of the parties, and their own operative construction of the contract, as disclosed by the petition, that payment was not expected until actual instructions for delivery of the hoppers had been given by appellant within some reasonable time after their completion. In any event it cannot be said from the face of the petition it affirmatively appears the parties agreed payment was to be made for any of the three hoppers on the date of their completion, and no payment was made at that time.
Under these circumstances did appellee file its action in time to recover payment for the third hopper? It demanded payment for that hopper on March 17, 1952. That was a little over two months after it had received payment for the second hopper. Payment was refused by letter dated May 7, 1952. That was the first breach of appellant’s obligation to notify appellee when any hopper was to be shipped. This action was filed December 9, 1952. That was well within three years after the breach of the alleged arrangement. We are not presently concerned with what the evidence may show on the trial relative to the nature and terms of the transaction but only with the allegations of the petition.
For a peition to be demurrable on the ground the action is barred such facts must appear on the face of the petition. (G. S. 1949, 60-705; American Glycerin Co. v. Freeburne, 157 Kan. 22, 138 P. 2d 468.) Viewing the entire transaction we shall not say, as a matter of law, it affirmatively appears on the face of the petition the first cause of action was barred. In 37 C. J. 817, the rule is stated as follows:
“It is a general rule that, where no time is fixed for performance by the promisor he must perform within a reasonable time, and the statute of limitation begins to run at the expiration of such time, but not until then. What constitutes a reasonable time depends upon the circumstances of the particular case and is a question for the jury, unless the period of delay is so long that the court can direct a jury as matter of law that it is unreasonable.”
See, also, 54 C. J. S., Limitations of Actions, § 129, p. 45, § 131, p. 47.
For a second cause of action appellee, in substance, alleged:
On or about September 11, 1947, pursuant to a long distance telephone conversation, appellant contracted to purchase from appellee twenty-five 1,500 gallon tar kettles to be used by appellant in pipeline construction work; the price thereof was not agreed upon at that time and no exact date was fixed for completion of performance by appellee or appellant; it was, however, agreed appellee should hold the completed kettles at its factory, awaiting shipping instructions from appellant; thereafter by letters between the parties under date of November 3, 1947, and November 19, 1947, it was agreed the price per kettle should be $4,300; the letter from appellee stated the price would be $4,300 on each kettle “for future delivery”; the letter from appellant confirming that contract price also stated it would be agreeable for appellee to bill appellant “in the amount of $4,300 on each kettle for future delivery”; shortly thereafter appellee purchased certain miscellaneous parts for such kettles and also fabricated certain other parts; appellee, from time to time, completed kettles and held them as per agreement awaiting shipping instructions from appellant; on April 28, 1948, appellant removed from appellee’s factory three of such kettles and removed three additional kettles on April 29, 1948, for which six kettles it paid appellee in full on or about May 18, 1948; on or about June 12,1948, it was agreed by the parties the remaining nineteen kettles should be manufactured by appellee in groups of five and as appellant removed kettles from appellee’s stock from time to time appellee would replace them by further manufacture; appellee continued manufacturing the kettles in accordance with the agreement.
It was further, in substance, alleged:
On or about August 13, 1948, appellant removed three of such kettles'from appellee’s factory and one kettle on August 27, 1948; those four kettles were paid for in full by appellant on September 10,1948; on September 24, 1948, appellant removed one more kettle and paid for it October 9, 1948; on or about September 25, 1948, appellant removed another of such kettles for which it paid on October 22, 1948; following the removal of the last mentioned kettle appellee had on hand four additional kettles awaiting shipping instructions from appellant; appellant instructed appellee to complete two additional kettles and hold the six kettles for shipping instructions; appellee then completed the two kettles and since July 20, 1949, has held the six last mentioned kettles for shipping instructions; appellant failed and neglected to remove or pay for such six kettles prior to March 17, 1952, and at that time appellee by letter demanded payment for such six kettles in the contract price of $25,800; on May 7,1952, appellant refused to make further payment on its contract; in addition to the six completed kettles appellee had on hand fabricated parts for the seven remaining kettles which had not yet been assembled, the parts for which were fabricated at the total cost of $2,618.93; appellee also had on hand miscellaneous parts for the remaining unassembled kettles which it had purchased at a total cost of $2,969.19; in its letter of March 17,1952, which contained complete invoices, dated March 13, 1952, of all items claimed, appellee also demanded payment by appellant for the cost of the fabricated and purchased parts for which appellant refused to pay; the contract price for the seven kettles not yet assembled was $30,-100; the cost of direct labor, materials and factory overhead required for the production of the seven kettles would have amounted to $22,638, leaving a balance of $7,462 which appellee would have realized from the completion of the seven unassembled kettles and their sale to appellant; the kettles were manufactured especially for appellant according to appellant’s own special design and there was no other market for them.
Letters and invoices alleged were attached to the pleading. The prayer was for the recovery of each of the items set forth in the second cause of action together with interest from March 13, 1952.
For the purpose of ruling on the demurrer all properly alleged facts are admitted as true. Insofar as the second cause of action discloses appellee first learned of appellant’s breach of the contract on May 7, 1952. This action was filed December 9, 1952. That was clearly within three years after appellant breached the contract by refusal of payment. If appellee’s cause of action- on the contract did not accrue on the date of appellant’s refusal to pay, when did it accrue? Appellant contends it accrued not later than July 20, 1949, that being the date the six kettles were completed by appellee. We cannot agree. Appellant did not breach the contract at that time. There is no allegation appellee was entitled to payment on the date of completing any particular kettle or kettles. Under the alleged agreement no time limit was fixed within which appellee was required to complete any part of its duties or within which appellant was required to demand delivery of kettles. No specific time was fixed for payment. It would appear appellant did not desire to have them delivered and to be obliged to pay for them until it needed them or wanted to receive them. That also appears-to have been the operative construction both parties placed on this contract. All previous payments on twelve kettles had been made after delivery.
Appellant gave no instructions for shipment of any of the six kettles which were completed by July 20, 1949, or for delivery of the other seven kettles which were not entirely completed on that date. Nor did appellant give any indication of repudiating the contract on July 20, 1949.
As stated, it was appellant’s privilege to determine when the kettles should be shipped. Failure, therefore, of appellant to instruct appellee to ship them on July 20, 1949, did not constitute a breach of the contract. Moreover, there were seven other kettles which remained to be manufactured before appellee’s part of the contract was fully performed. Plainly there was no repudiation or breach of the entire contract, or of any part thereof, by appellant on July 20, 1949. Only by concluding payment on the six kettles was due on July 20, 1949, and that payment was then refused could it be said appellee’s cause of action accrued on' that date. Clearly it does not appear on the face of the petition that any payment was due or refused on that date.
As we view this action the only possible question which can arise relative to the statute of limitations is whether appellee failed to demand payment within a reasonable time after July 20, 1949. In connection with that question it must be remembered appellee knew it had granted appellant the right to determine when the kettles were to be shipped and that appellee had seven more kettles which were yet to be finished before its part of the contract was completed. Our conclusion is the petition does not affirmatively disclose on its face demand for payment was not made within a reasonable time. What constitutes a reasonable time depends upon the facts of each particular case and -must be determined by the jury unless the delay is so long and under such circumstances that a court can say, as a matter of law, it is unreasonable.
This court often and under varying circumstances has held that what constitutes reasonable time within which a party must act depends upon the circumstances of each particular case. (Woodman v. Millikan, 126 Kan. 640, 270 Pac. 584; Campbell v. Warnberg, 133 Kan. 246, 299 Pac. 583; Southern v. Chase State Bank, 144 Kan. 472, 476-477, 61 P. 2d 1340; Malone v. Young, 148 Kan. 250, 81 P. 2d 23; Preston v. Shields, 159 Kan. 575, 156 P. 2d 543.)
One of the most controlling circumstances is always — what was the intention of the parties? (Woodman v. Millikan, supra; Southern v. Chase State Bank, supra, p. 477.) Another factor to be considered is the practical construction, if any, adopted by the parties. (Southern v. Chase State Bank, supra, p. 477.)
Failure of appellee to make an earlier demand for payment must be considered in connection with the terms of the contract. Appellee’s delay in making earlier demand for payment discloses a recognition of the agreement that appellant had the right to determine when shipment should be had. The conduct of the parties discloses there was never payment before, but always after, appellant’s demand for delivery.
We have not overlooked cases cited by appellant. They involve mainly a question relative to when title ordinarily passes under contracts for the manufacture and sale of articles. None of them involves an agreement such as the instant one, in which appellee was authorized to bill appellant “in the amount of $4,300 on each kettle for future delivery,” (our italics) and which granted appellant the exclusive right to determine when delivery should be made.
Another factor which must be considered in determining whether appellee unduly delayed demand for payment of the six kettles is the evident fact appellee had not yet fully performed its duties under the contract. Seven other kettles remained to be finished and no demand for their delivery on any certain date had ever been made by appellant.
Under the alleged facts pertaining to the contract, including the practical construction of the contract by the conduct of the parties, appellee had no right to determine the date any article should be delivered or to collect payment therefor before delivery. These are all circumstances which must be considered in determining whether appellee’s cause of action is barred.
We think it does not affirmatively appear on the face of the second cause of action that it was barred by the three-year statute of limitations.
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The opinion of the court was delivered by
Wertz, J.;
This was an action to foreclose a mortgage covering two oil and gas leaseholds. The question in controversy is whether the funds from oil production from said leaseholds in the hands of the operating receiver should be applied to the unsatisfied part of the first or second mortgagee’s judgments. The appellee Mid-Continent Supply Company, a corporation, will be hereinafter referred to as plaintiff or first mortgagee, and the appellants Fred M. Hauser, Lloyd Hauser and Nolan Hauser, as second mortgagees or defendants Hauser. The pertinent facts are:
On November 21, 1950, for the purpose of securing a series of notes given for the purchase price of two oil and gas leaseholds, Rean Oil Company, Inc. gave a mortgage covering these leaseholds to Anschutz Production Company, Inc. By the terms of this mortgage, the mortgagor for sufficient consideration,
. . does sell, assign, transfer and set over unto the said party of the second part, his heirs and assigns, forever, the following oil and gas leases, to-wit: (legal description of the two leases) together with the rights incident thereto and the personal property thereon, appurtenant thereto, or used or obtained in connection therewith, and all the estate, title and interest in the said party of the first part therein. . . . said party of the first part does hereby covenant and agree that at the delivery hereof it is the lawful owner . . . free and clear of all encumbrances. . . .” (Italics supplied.)
This is followed by terms for the payment of the notes secured by the mortgage and provides that in case of default in payment, the mortgage is subject to foreclosure. This mortgage was duly recorded on January 16, 1951. Thereafter on November 19, 1951, Anschutz Production Company, Inc., duly assigned the mentioned mortgage to the plaintiff Mid-Continent Supply Company.
On July 9,1951, more than seven months after the execution of the first mortgage, the mortgagor, Rean Oil Company, Inc., gave a second mortgage to the defendants Hauser. The terms of this mortgage after setting up a schedule of payments on the notes which it secured, provided that “the mortgagor mortgages and warrants to the mortgagees . . . the following described lease and the leasehold estate or estates thereby created for oil and gas mining purposes, including all personal property situated thereon belonging to the mortgagor, including the equipment of wells . . . (Italics supplied.) .(Then follows the legal description of one of the two leases described in the first mortgage.)
On September 21, 1951, the mortgagor, Rean Oil Company, Inc., caused a transfer order to be executed and delivered, assigning the proceeds from the oil runs on the lease described in the second mortgage, to the defendants Hauser. The mortgagor defaulted in its payment due the plaintiff on November 21, 1951. Plaintiff notified the mortgagor of its intention to foreclose the mortgage if the default continued. The mortgagor failed to make good its default, and plaintiff commenced an action to' foreclose its mortgage on December 14, 1951. Plaintiff made, along with others, the mortgagor and each of the Hausers parties defendant in the action. At the same time, plaintiff filed its verified application for appointment of a receiver, requesting the court to appoint a receiver to take possession and charge of the property, and to use power and authority to continue to operate and to produce oil from the properties described in the mortgage, alleging that the mortgagor had permitted various liens to attach to the mortgaged property, and that substantial harm was being done to the property by overproducing the same; that the mortgaged property described in the petition was insufficient to discharge the mortgage debt. The court after hearing plaintiff’s application and statements of counsel, after examining the files and being fully advised in the premises, found that plaintiff’s motion was well taken and that a receiver should be appointed. The court appointed a receiver and directed him to take possession and charge of the oil and gas leases; to continue to operate and produce the oil and gas from the properties of the defendant mortgagor, Rean Oil Company, Inc., involved in the action; to collect from the oil purchaser the proceeds of the oil runs, and to conserve and protect the property of the defendant.
On March 3, 1952, the defendants Hauser entered their appearance and filed their answer and cross petition seeking foreclosure of their second mortgage, setting forth the fact that the plaintiff’s mortgage covered additional property other than the property mortgaged to the defendants Hauser, and in the event plaintiff procured a judgment decreeing its mortgage to be a just lien on the property described in plaintiff’s petition, defendants were entitled to have the property mortgaged by Rean Oil Company, Inc., to the plaintiffs, and not included in the mortgage from mortgagor to these defendants, to be first sold and the proceeds therefrom applied to the judgment of the plaintiff, and that plaintiff should be required to marshal assets and collect its debt out of that property to which the Hausers could not resort; that the property be sold and the proceeds of the sale be applied to the costs of the action, taxes, and then to the satisfaction of the judgment of these defendants, and the balance retained by the court to await the further order of the court.
The 'cause came to trial and on April 4, 1952, the trial court entered judgment in favor of the plaintiff, which judgment was declared to be a first lien upon the two leaseholds in question, and entered judgment iii favor of the defendants Hauser, and declared their judgment to be a second lien on the lease described in their mortgage, and issued an order of sale of the leaseholds. At the same time, the court withheld until a further date its decision, with reference to the application of the funds in the hands of the receiver.
The mortgaged premises were sold at sheriff’s sale. The sale was confirmed and the entire proceeds of the sale were assigned to the payment of costs, taxes, and the balance applied on plaintiff’s judg ment, which balance was insufficient to satisfy that judgment. Subsequently the trial court entered judgment in favor of the plaintiff, directing that the funds in the hands of the receiver be applied to the costs of the receivership, and the balance be applied to the unsatisfied portion of plaintiff’s judgment. Defendants filed a motion for new trial which was overruled, hence this appeal.
Defendants first contend that the order appointing the receiver was invalid for the reason that the application for such appointment was verified by one of the plaintiff’s attorneys on information and belief. The verification is not set forth in the abstract. The plaintiff being a corporation, the verification made by its attorney was in accordance with G. S. 1949, 60-731. In Hornick v. U. P. Railroad Co., 85 Kan. 568, 118 Pac. 60, we held that a verification of a pleading may be made by an officer, agent or attorney of a corporation without setting forth why it was not made by the corporation itself, or otherwise complying with the requirements of G. S. 1949, 60-735. Moreover, a party who challenges the form or sufficiency of a verification of a pleading should attack it by motion before the issues are joined, and evidence introduced on the trial of the action on its merits, as an objection made after such time is ordinarily too late to be available.
In the instant case, there is no showing that the application for appointment of receiver was not properly verified, in any event, the objection came too late.
Defendants contend that the court was without authority to appoint the receiver for the reason that no notice was given to the defendants of such application. G. S. 1949, 60-1201, provides:
“A receiver may be appointed by . . . the district court, ...
“Second. In an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt.”
Plaintiff’s verified application alleged that the mortgaged property was insufficient to discharge the mortgage debt, and that defendants had permitted various liens to attach to the mortgaged property, and were doing substantial harm to the property. Under the mentioned statute, a receiver may be appointed in an action to foreclose a mortgage where it appears that the mortgaged property is insufficient to discharge the mortgage debt. (Bank v. Dikeman, 98 Kan. 222, 157 Pac. 1177; Schultz v. Stiner, 97 Kan. 555, 155 Pac. 1073.) There is nothing in the record to indicate that the court did not hear evidence prior to the appointment of the receiver. The record is to the contrary. The court’s order appointing a receiver discloses that the matter was presented to the court. The court having heard the statements of counsel, having examined the files and being fully advised in the premises, found plaintiff’s application was well taken and a receiver should be appointed. Where the record fails to show what action was taken with reference to some particular matter in a proceeding, it will be presumed in the absence of an affirmative showing to the contrary that the action of the court was regular and in accordance with the law. (Rothman v. Globe Construction Co., 171 Kan. 572, 235 P. 2d 981; Babb v. City of Wichita, 172 Kan. 416, 423, 241 P. 2d 755.) Furthermore, it appears from the record that the defendants Hauser answered and made no objection to the appointment of a receiver and in fact asked that the property be sold, the proceeds applied to the costs, and to the satisfaction of defendants’ judgments, and the balance to be retained by the court to await the further order of the court; that when the cause came on for trial on April 4, 1952, approximately four months after the receiver was appointed, the defendants advised the court for the first time that they had an assignment of the oil runs, and that they claimed the runs as if no receiver had been appointed. No objection was made as to the appointment of the receiver until the filing of their motion on October 21, 1952, to have the funds in the hands of the receiver paid to the defendant. It is apparent that the defendants acquiesced in the appointment and action of the receiver. The long acquiescence of the defendants in the appointment of the receiver is tantamount to consent and they cannot now question the legality of that appointment. (Reneau v. Lawless, 79 Kan. 553, 100 Pac. 479.)
The principal question for our determination is whether the second mortgagee, to whom all credits for oil receipts from the leasehold were validly assigned before default in payment on the senior mortgage, has a prior right to such receipts paid to the receiver from and after the date of his appointment until the mortgagor was divested of title by foreclosure sale. It is conceded that plaintiff had a first mortgage, and defendants Hauser a second mortgage upon the leasehold estate, and that the sale price of the leases was insufficient to satisfy the first mortgage and, of course, nothing was paid on the second. Pending foreclosure and sale, the receiver collected a large sum of money by way of oil runs. This sum was less than the amount still owing on the first mortgage. It is also conceded that the transfer order issued by the mortgagor to the second mortgagee was in the conventional form of common usage in the crude oil production industry, and that the defendant, Phillips Petroleum Company, had been making payments for oil purchased from the leasehold to the defendants Hauser, as provided in the transfer order to the time of the appointment of a receiver and that the payments were applied to the Hauser mortgage. The transfer order executed to the second mortgagee was subsequent to the mortgage and was not filed of record.
Both mortgages were, in terms, plain mortgages of the premises in question, and neither contained an assignment of the rents and profits. It is now claimed by the second mortgagee that by reason of the transfer order he is entitled to a specific lien upon the funds in the hands of the receiver arising from the mortgaged property, and that by virtue thereof he is entitled to the same as against the first mortgagee. It is recognized in this state that a mortgage is a mere security in the hands of the mortgagee, and does not convey any interest in the land itself. (Penn Mutual Life Ins. Co. v. Tittel, 153 Kan. 530, 111 P. 2d 1116; 4 Hatcher’s Kansas Digest [Rev. Ed.], Mortgages, § 2; West’s Kansas Digest, Mortgages, § 1.) After the mortgage conditions have been broken, the mortgagee may bring an action for possession or he may bring an action in foreclosure, which results in a judicial sale. Even after a condition is broken, the mortgagor is entitled to the rents and profits so long as he retains possession. (Hall v. Goldsworthy, 136 Kan. 247, 14 P. 2d 659.) A mortgagee, however, after bringing an action in foreclosure and makitig to the court such showing as is required by G. S. 1949, 60-1201, Second, has a right to have a receiver appointed for the property, and this receiver by virtue of his possession is entitled to the rents and profits that may issue from such possession to be received and held by him for the benefit of the parties in interest. If the property is insufficient to discharge the debt, the mortgagee has a right to look to the income of the property prior to • its sale. (Schultz v. Stiner, 97 Kan. 555, 155 Pac. 1073.) In Bank v. Dikeman, 98 Kan. 222, 157 Pac. 1177, we held that where a receiver has been appointed in an action to foreclose a mortgage on real property, and the property’ fails to sell for enough to satisfy the mortgage debt, the mortgagee is entitled to the income from the property from the time of the appointment of a receiver until the sale of the property.
It is clear that the mortgagor by his first mortgage did sell and assign to the plaintiff all the rights in the oil and gas leases and the personal property thereon, appurtenant thereto, or used or obtained in connection therewith, and all of his estate, title and interest in said property. If there had been no second mortgage upon this property, it is obvious that the plaintiff could have had the receiver appointed in this case, and would by virtue of that receivership have realized all the income from the oil runs collected by the receiver, notwithstanding its mortgage did not contain a specific pledge for the oil runs, for those runs were as much pledged as the corpus itself. Since the plaintiff would have been entitled under the existing circumstances to the oil runs in the absence of a second mortgage, it is obvious that the execution of the second mortgage to defendants Hauser did not affect those rights at all, as the second mortgage cannot impair the rights already granted to the holder of the first mortgage.
The plaintiff, in the enforcement of its right conferred by statute, secured the appointment of a receiver who took possession and control of the mortgaged property, produced the oil therefrom and sold that oil. The receiver was a creature of the court and not of the mortgagor. If he had been the agent of the mortgagor, it might be that the transfer order given by the mortgagor would be binding upon its agent, but the receiver held possession and produced and sold the oil for and under the direction of the court. Plaintiff’s mortgage was on file, and any assignment of the oil runs taken by defendants must have been taken with full knowledge of the result which has in fact occurred. Their assignment being from the mortgagor, they cannot be entitled to any proceeds from the oil runs to which the mortgagor itself would not be entitled, had no assignment been executed. The defendants can acquire from the mortgagor no greater right to the proceeds from oil runs than the mortgagor itself had. It is a general rule that where a receiver is appointed, generally, and not for the benefit of any particular mortgagee, the funds collected by him are applicable to the liens on the property in the order of their priority. (37 Am. Jur. 312, § 976.) A junior mortgagee is entitled to share in rents and profits collected by a receiver for the benefit of a senior mort gagee, only to the extent of the surplus remaining after the satisfaction of the senior mortgage. (37 Am. Jur. 307, §968.)
In view of what has been said, we conclude that the trial court did not err in applying the proceeds from the oil runs in the hands of the receiver to the unpaid portion of plaintiff’s judgment. Therefore, it is unnecessary to discuss other questions presented on this appeal. The judgment of the trial court is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Marshall, J.:
There are two appeals in this action, one by the defendant George D. Sinclair and the other by the defendants, the trustees of the Central Cattle Loan Company. The plaintiff commenced the action against George D. Sinclair and the Central Cattle Loan Company to recover from Sinclair on a promissory note for $1,357 signed by him and given to the Central Cattle Loan Company in renewal of a promissory note previously given by Sinclair to the loan company, and by it assigned to the plaintiff. The plain tiff asked that he “be adjudged to be the owner of, and entitled to the proceeds of said note of $1,357.” Judgment was rendered against the trustees of the Central Cattle Loan Company declaring the plaintiff to be the owner of the note and that they had no interest therein, from which the trustees of the Central Cattle Loan Company appeal. Judgment was also rendered in favor of the plaintiff against George D. Sinclair, from which he appeals.
The action was tried without a jury, and the court made findings of fact, as follows:
“1. The court finds that the note sued upon was given by defendant, George D. Sinclair, to defendant, Central Cattle Loan Company, and by such company sold to the plaintiff, L. P. Sentney, before maturity and for a valuable consideration.
“2. The note described in finding No. 1 was secured by a chattel mortgage of the same date covering live stock belonging to Sinclair in Hodgeman county, Kansas, which mortgage was filed in the office of the register of deeds of such county, February 25, 1921, and recorded in Book H of chattel mortgages at page 273. This mortgage also secured the payment of two other notes of same date from Sinclair to Central Cattle Loan Company, one for $2,500 and one for $3,000.
“3. J. C. Hopper was the managing head of defendant, Central Cattle Loan Company, and as such he took a new note from Sinclair, payable to Central Cattle Loan Company, for the amount of the note in finding No. 1, $1,248.43, on May 21, 1921, renewing such note on August 27, 1921, and again on October 21, 1921, paying the interest to Sentney, plaintiff, on the note sold him, up to November 28, 1921. Neither Hopper nor the Central Cattle Loan Company pay [paid] anything on the principal of the note owned by Sentney, described in finding No. 1. These notes were each secured by chattel mortgages given by. Sinclair to Central Cattle Loan Company, and which were kept in full force and effect by renewal affidavit on August 31, 1923, until they were released and new mortgage substituted.
“4. Defendant, George D. Sinclair, paid, to Central Cattle Loan Company all of his indebtedness to it except the sum of $1,357 and for which amount he gave them his note on November 23, 1925, which note was secured by a chattel mortgage of even date, filed and recorded in Hodgeman county, and which mortgage was kept in force by renewal affidavit filed November 2, 1927, and is still a valid and subsisting lien on the property mortgaged thereunder. The amount due from Sinclair to the Centr.al Cattle Loan Company includes the $1,248.43 note owned by Sentney. In other words, not computing interest, Sinclair owes Sentney $1,248.43 and the Central Cattle Loan Company $108.57, both amounts being secured by the chattel mortgage of November 23, 1925.
“5. Defendant, George D. Sinclair, paid about 1922, the Central Cattle Loan Company the $1,248.43 note owned by L. P. Sentney through its agent, J. C. Hopper, and neither Hopper nor the Cattle Loan Company has paid Sentney the amount of such note.
“6. Sometime in the month of February, 1927, L. P. Sentney, plaintiff herein, and the Central Cattle Loan Company, defendant herein, in order to settle and compromise a suit then pending in the district court of Reno county, entered into a stipulation as to terms of settlement, which recited, in part, as follows: ‘Whereas, it is desired to compromise and settle said judgment and all matters of dispute between L. P. Sentney and the Central Cattle Loan Company, ... in consideration of which the said L. P. Sentney agrees to release said judgment against the Central Cattle Loan Company and all claims of any manner and description which he may have against said company. It is understood that said L. P. Sentney is to retain said notes sued upon in the above-entitled action.’ This note for $1,248.43 was one of the notes sued upon in said action.
“7. That J. C. Hopper severed his connection with the defendant, the Central Cattle Loan Company, more than two (2) years before February, 1927, and was not an officer of the Central Cattle Loan Company in February, 1927; that said note for $1,357 was carried on the books of the Central Cattle Loan Company, and considered by the officers of said company, as an asset of the company at all times after said note was received by the Central Cattle Loan Company; that there is no evidence at the time of the compromise settlement between L. P. Sentney and the Central Cattle Loan Company, that any officers of the Central Cattle Loan Company, or any other person acting on behalf of said company, had any knowledge that L. P. Sentney was claiming any interest in said note for $1,357 or the security for said note.”
From these findings of fact the court deduced the following conclusions of law:
“The stipulation as to terms of settlement precluded the plaintiff from maintaining any claim against the Central Cattle Loan Company, but this is not a claim against the Central Cattle Loan Company, but is a claim against George D. Sinclair, and since the chattel mortgage securing the $1,357 note is in effect a renewal of the chattel mortgage which secured the note sued upon, and others, the security should follow the note and should be the property of the plaintiff to the extent at least of satisfying his claim against George D. Sinclair. In other words, the plaintiff should be subrogated to the rights of the defendant, Central Cattle Loan Company, in the mortgage securing the $1,357 note.”
Judgment was rendered in favor of the plaintiff “against the defendant, George D. Sinclair, upon his promissory note set out and described in plaintiff’s petition, in the sum of $1,248.43, with interest from the 28th day of February, 1922, at 10 per cent per annum.”
The first contention of the trustees of the Central Cattle Loan Company is that “the evidence in the case does not support the finding of the court that the $1,357 note was a renewal of the $1,248.43 note.” That was not a finding of fact made by the court. It was a conclusion of law, and instead of being in the language quoted, it was that “the chattel mortgage securing the $1,357 note is in effect a renewal of the chattel mortgage which secured the note sued upon.”
We quote from the abstract of the Central Cattle Loan Company as follows:
“J. H. Tharp, a witness for plaintiff, testified as follows:
“Identified note register of the Central Cattle Loan Company and showed record of notes of George D. Sinclair dated 5-29-21 as follows: One note, No. 1111, for $3,000; one note, No. 1112, for $2,500; one note, No. 1113, for $1,248.43; one note, No. 1114, for $680; making a total of $7,428.43. Also showed record in note register of notes of Geo. D. Sinclair, dated 8-27-21, which he thought to be renewals of the above notes, as follows: No. 1123, for $3,000; No. 1124, for $2,500; No. 1125, for $1,248.43; No. 1126, for $680. Also showed record in note register of notes of same amount by George D. Sinclair, dated October 21, 1921, as follows: One note, No. 1165, for $3,000; one note, No. 1166, for $1,248.43; one note, No. 1167, for $680; one note, No. 1168, for $2,500.
“Testified he did not think there was any later notes of Geo. D. Sinclair for these particular amounts, but that there were Sinclair notes subsequent to November, 1921; that some of the mortgaged property was sold and proceeds applied on these notes and balance renewed, the $1,357 note being the last renewal.”
George D. Sinclair, a witness for plaintiff, testified as follows:
“I have resided at Jetmore, Kansas, for forty-nine years. In 1921 I owed the Central Cattle Loan Company around seven thousand dollars, represented by three notes. I knew Mr. Hopper before he come to Hutchinson. I expect I borrowed a hundred thousand dollars from him. I have liquidated all my indebtedness to the Cattle Company, except the present note for something like $1,300. I paid Mr. Hopper the $1,248.43 note. I learned Mr. Sentney was claiming to hold that note two or three years ago when they sued me and him together. . . .
“Q. This thirteen hundred and forty some dollars, $1,357 note, was all that was left of the indebtedness which you had given these various notes and mortgages for and was the balance due on all of that paper? A. Yes, sir.”
The conclusion complained of was justified by the evidence and was properly drawn from the facts found.
We quote from the brief of the trustees of the Central Cattle Loan Company, as follows:
“In its conclusions of law, the court states that the compromise settlement barred Sentney from maintaining any claim against the Central Cattle Loan Company. Then the court enters judgment against the Central Cattle Loan Company, declaring Sentney to be the owner of the $1,357 note which the Central Cattle Loan Company claimed at the time the settlement was made.”
Of that conclusion complaint is made. The foundation for this complaint is in the sixth finding of fact. That finding is based on previous litigation between L. P. Sentney and the Central Cattle Loan Company. That litigation reached this court, and the opinion thereon is found in Sentney v. Central Cattle Loan Co., 119 Kan. 545, 240 Pac. 856. The judgment there appealed from was reversed, and the action was remanded to the district court of Reno county and was again tried. Another appeal was taken. Pending that appeal a compromise and settlement was effected between L. P. Sentney and the Central Cattle Loan Company. That is the compromise and settlement to which reference is made in finding numbered six. The abstracts do not disclose clearly the purpose of that litigation, but the statement of facts found in the brief of the plaintiff reveals that the action was one to establish liability on the part of the loan company to the plaintiff on guaranties or indorsements on notes that had been sold by the loan company to the plaintiff. There is nothing in the record as presented to this court to show .that the issues in that case were the same as the issues in the present action. The findings of fact recite that Sentney was to retain the notes involved in the action between him and the Central Cattle Loan Company and recite that the note for $1,248.43 was one of those notes. The findings of fact reveal the $1,248.43 note had been paid to the Central Cattle Loan Company, and that the $1,357 note involved in this action had been given to take the place of it. The settlement did not bar Sentney from recovering his share of the $1,357 note. It should be noted that no judgment was rendered against the Central Cattle Loan Company or its trustees on the $1,357 note. The judgment against the loan company was that the plaintiff was the owner of that note and that he be subrogated to the right of the loan company under the chattel mortgage given to secure it.
The trustees of the loan company argue that the action of the plaintiff is barred by the statute of limitations. This argument is made as though this action were based on the note of $1,248.43, dated February 28, 1921. This action is not on that note; it is based on the note for $1,357, dated November 23, 1925. This action was commenced on November 17, 1927. The settlement between Sentney and the Central Cattle Loan Company was made in February, 1927. A cause of action then arose in favor of the plaintiff against the loan company to recover possession of the note or to establish its ownership. The action against the loan company by the plaintiff was not barred at the time it was commenced.
The appellant, George D. Sinclair, argues that “the court erred in rendering judgment against George D. Sinclair in an amount exceeding that to which plaintiff by his petition claimed to be entitled to”; that “the court erred in rendering judgment against George D. Sinclair for interest”; and that “the court erred in rendering judgment against George D. Sinclair for interest accruing after November 17, 1927.” The petition did not allege that the $1,357 note bore any interest, and did not pray for judgment for interest. The prayer of the petition was for judgment against Sinclair “for the amount of said note, $1,357.” The summons against George D. Sinclair had indorsed on it the following language:
“If the defendants fail to answer, the plaintiff will take judgment for $1,357 with interest thereon at the rate of 10 per cent per annum, from the 23d day of November, a.d. 1927 [1925], and costs of suit. Restraining order allowed. Carl A. Richardson, clerk.”
None of the abstracts set out a copy of any note. The .original petition has been examined and there is not attached to it any copy of any note. There is attached to the petition a copy of the chattel mortgage given to secure the payment of a note, which copy describes the note as one for $1,357, dated November 23, payable in one year with interest at ten per cent per annum from maturity, according to the terms of the note. The chattel mortgage is dated November 23, 1925. The abstract contains the following:
“Records show $1,357 note dated 11-23-25 was due in one year with interest at 8 per cent from date.”
It does not appear that the petition was amended, nor that any amendment was asked. The action against Sinclair is one for the recovery of money.
Section 60-704 of the Revised Statutes of 1923, in part, reads:
“A petition must contain ... a demand of the relief to which the party supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated; and if interest thereon be claimed, the time from which interest is to be computed shall be also stated.”
In Insurance Co. v. Weeks, 45 Kan. 751, 26 Pac. 410, this court used the following language:
“Where the prayer of a petition asks for interest from a certain date, the plaintiff cannot recover interest from a prior date.” (Syl. ¶ 4.)
If the statute is followed the plaintiff was not entitled to any interest at the time the judgment was rendered.
In the fourth finding the court said that the plaintiff owned $1,248.43 of the $1,357 note and that the Central Cattle Loan Company owned $108.57 of that note. The plaintiff was not entitled to judgment for more than $1,248.43 out of the $1,357 note. Under the pleadings the plaintiff was not entitled to interest previous to the rendition of judgment. Under the findings of the court the plaintiff’s interest in the $1,357 note was $1,248.43. That marked the extent to which he was entitled to judgment.
Judgment was rendered against Sinclair for $107.30 costs. He argues that the controversy was between the plaintiff and the Central Cattle Loan Company and that he should not be compelled to pay costs. Sinclair filed an answer and alleged payment of the note. If he desired to avoid the payment of costs hé should have confessed judgment or paid into court the amount of money called for by the note. Having failed to do that, he is liable for the costs of the action against him.
The action is remanded to the district court with directions to enter judgment in favor of the plaintiff and against George D. Sinclair for $1,248.43 with interest thereon from the date of the judgment. In all other respects the judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to reform a deed on the ground it had been fraudulently altered after its execution and delivery.
The appellees will be hereafter referred to as plaintiffs, and the appellants as defendants.
The action was tried by the court which made detailed findings of fact and conclusions of law. Most of the facts alleged in plaintiffs’ petition were admitted by defendants’ answer. The admitted facts, findings by the court, and the evidence, so far as material to this appeal, may be summarized as follows:
Plaintiff Maude S. Mingenback is the widow of C. F. Mingenback who died on April 20, 1929, and the other plaintiffs are the children of the marriage of Maude S. Mingenback and C. F. Mingenback. The defendants, except Mary Mingenback and Anthony P. Nugent, are the children of C. F. Mingenback by a former marriage. Mary Mingenback is the wife of Eugene C. Mingenback.
The property in question was conveyed by C. F. Mingenback and Maude S. Mingenback, his wife, to Eugene C. Mingenback, as trustee, by two separate deeds, in the years of 1924 and 1925. The plaintiffs and all defendants except Anthony P. Nugent were beneficiaries of the trust. Eugene C. Mingenback accepted the trust and administered it as trustee until December 16, 1940, when a settlement between the trustee and the beneficiaries was effectuated through a division of the trust properties and the execution of a mu tual release by the parties in which they agreed to sign future instruments upon demand of any of the other parties.
Anthony P. Nugent was attorney for the plaintiffs in this settlement, having been employed by them in June, 1939. Prior to the settlement and on March 1, 1940, the trustee conveyed to the plaintiffs jointly an undivided one-third royalty or mineral interest in the property in question, for a term of fifteen years and as long thereafter as oil and gas was being produced or the property was being developed or operated.
After the settlement and on December 31, 1940, plaintiffs executed a mineral deed purporting to convey to Anthony P. Nugent the fee title to l/15th interest in the minerals in the Morton County land.
Plaintiffs executed seven deeds at the time of the settlement on December 16, 1940. One of these deeds described approximately 3,400 acres of Morton County land and contained no reservation. This is the deed in controversy. When originally prepared, it contained this reservation following the land descriptions: “Reserving to grantors the one-third (1/3) of the oil, gas and mineral rights now of record in their name, as shown by the instrument recorded March 20, 1940, in Book O. & G. 8, page 539, in the office of the Register of Deeds of Morton County, Kansas.” This clause was clipped off the bottom of the page containing the descriptions which was pasted on the recorded deed.
There is no controversy as to whether this reservation was in the original deed when it was prepared. The only controversy is when the reservation was removed from the deed. The deed was recorded on February 6, 1943. A deed in identical form conveying land in Stevens County contained this reservation when it was executed and delivered by plaintiffs on December 16, 1940, and this deed was recorded on February 18, 1943.
The plaintiff Maude S. Mingenback and the defendant Anthony P. Nugent testified that the original recorded deed to the Morton County land contained the mineral reservation at the time it was executed and delivered. The plaintiffs John J. Mingenback and Ruth Marie Zimmerman testified that they did not remember whether the deed contained the reservation at the time they signed it, but they were informed by Mrs. Mingenback and Mr. Nugent that they were retaining a mineral interest in this land and understood that the deed contained a reservation.
Maude S. Mingenback caused a one-third mineral interest to be listed for taxation in Morton County, to herself, and paid taxes thereon as shown by tax receipt. The defendant Eugene C. Mingenback subsequently wrote to Maude S. Mingenback requesting that she and the other plaintiffs join in the execution of oil and gas leases on the property, which was done.
In June, 1950, Anthony P. Nugent was informed by a representative of Terminal Facilities Company that he (Nugent) did not have record title to any mineral interest in the Morton County land and on the same day he notified Mrs. Mingenback. Maude S. Mingenback was acting as agent for the other plaintiffs at all times material herein. On August 2,1950, Anthony P. Nugent personally examined the record of this deed in the office of the register of deeds of Morton County and discovered that the record did not show any reservation in the grantors. On August 3, 1950, he told Mrs. Mingenback of the situation with respect to the record of this deed. The original recorded deed was shown to Mr. Nugent on April 12, 1951, by Mr. L. H. Ruppenthal, who was acting as attorney for Mr. Mingenback.
Plaintiffs filed their petition to reform the deed on July 31, 1952. Summonses were issued on the same date for service on the defendant Eugene C. Mingenback individually and as trustee for the other defendants except Mr. Nugent, and the sheriff’s return shows service on August 4, 1952. An affidavit for service by publication on the other defendants was filed on July 31, 1952. First publication was printed on August 8, 1952.
The parties stipulated at the trial drat there was some production of gas being had from part of the Morton County lands and that no part of the royalty from such production had been paid to any party, and that all of such royalty was being impounded in the hands of the purchasers or lessees pending termination of this action.
At the conclusion of plaintiffs’ evidence, the defendants other than Anthony P. Nugent demurred to the evidence of the plaintiffs for the reason that the same did not prove the cause of action purported to be alleged in their petition, and for the further reason that such purported cause of action was conclusively shown to be barred by the statute of limitations by the evidence of the plaintiffs themselves. This demurrer was overruled.
Defendants other than Mr. Nugent readily conceded and admitted that the deed in question contained a reservation following the land descriptions on the typed sheet of paper pasted to the deed at the time the deed was prepared. There is no argument about this fact. The question is — when was the reservation removed. L. H. Ruppenthal testified that he had been a practicing lawyer, at McPherson since 1925 and had represented Mr. Mingenback for about twenty years and that he had numerous conferences with Mr. Nugent pertaining to settlement of the trust estate and that the reservation on the deed in question was removed in his office on the evening of December 16, 1940, before the deed was signed by the plaintiffs, and that Mr. Nugent stated he would remove the reservation from the copy, which he did not have with him at that time. This testimony was disputed by plaintiff Maude S. Mingenback and defendant Nugent, as hereinbefore stated.
The defendant Eugene C. Mingenback testified that Mr. Ruppenthal represented him in connection with settlement of the trust estate; that he left everything to Mr. Ruppenthal to agree and work out with Mr. Nugent, subject to the approval of his brothers and sisters; that he was not present in the same room with the plaintiffs at the time of the settlement in the evening of December 16, 1940; that all of the actual consummation of the settlement was handled between Mr. Nugent and Mr. Ruppenthal, as far as he was concerned; that the deed in question did not contain the reservation when it was delivered to him as a part of the settlement; that he never changed the deed in any way after it was delivered to him; that the deed in question was in the same condition as when he received it except for the usual wear and tear on an instrument of that age; that there was no alteration by him or any of his employees or anybody that he knows of; that when he sent the oil and gas leases to Mrs. Mingenback for execution by her and her children, he relied on the agreement she had signed that she would sign any instrument he submitted to her; that Mrs. Mingenback had never talked to him at any time about any matter pertaining to the trust estate since December, 1940.
The court took the matter under advisement and subsequently made findings of fact and conclusions of law which were filed on September 8,1953. The court’s conclusions of law are as follows:
“I. The Statute of Limitations started in this ease, in favor of the defendants, on August 2, 1950, the date which Anthony P. Nugent, individually and as attorney representing the plaintiffs, examined the records in the office of the Register of Deeds of Morton County, Kansas, and discovered that the reservation clause was not included in the deed in controversy. The filing of the suit, the issuing of summons and filing of the affidavit for service by publication on July 31, 1952, suspended the running of the Statute of Limitations in favor of the defendants.
“II. The acts of Eugene C. Mingenback subsequent to December 16, 1940, when the deed in question was delivered to him, as well as his acts subsequent to the recording of said deed on February 6, 1943, clearly indicate that he did not interpret said deed to extinguish the mineral interest of the plaintiffs, and openly recognized such interest.
“EEL The acts of Eugene C. Mingenback tolled the running of the Statute of Limitations in favor of the defendents until August 2, 1950, and said acts constitutes fraud against the plaintiffs that entitles them to a reformation of the deed recorded in Book 22 of Deeds, page 575, in the office of the Register of Deeds of Morton County, Kansas, and that said deed be reformed to include immediately below tile land description therein the following words:
“ ‘Reserving to grantors the one-third (1/3) of the oil, gas and mineral rights now of record in their name, as shown by the instrument recorded March 20, 1940, in Book O. & G. 8, page 539, in the office of the Register of Deeds of Morton County, Kansas.’
“The defendants (amended on court’s own motion) herein are hereby ordered to account and pay to plaintiffs all proceeds from said mineral interest.
“Dated September 2, 1953.”
Judgment was entered for plaintiffs and defendant Nugent, in accordance therewith. Defendants, except Nugent, filed a motion for judgment, motion to amend and supplement findings of fact and conclusions of law, and a motion for new trial on September 10, 1953. These were argued on November 2, 1953. The motion to amend and supplement findings of fact and conclusions of law was sustained in part and overruled in part, and the motion for judgment and the motion for new trial were overruled. From this judgment defendants, except Nugent, appeal.
Defendants first complain the trial court erred in admitting over their objection incompetent evidence offered by plaintiffs. It would serve no useful purpose to detail the evidence complained of. It is noted the abstract fails to disclose that any motion to strike such testimony was made and overruled. In such a situation, under our decisions, since the trial was by the court, even if it be assumed the objections were otherwise good, there is no presumption such testimony, if improperly admitted, was considered or entered into the final decision of the case. Rule No. 53 of this court (G. S. 1949, 60-3827), providing, “In trials before the court, without a jury, where evidence is admitted over proper objections, and not stricken out on timely motion therefor, it shall be presumed that such evidence was considered by the court and entered into its final decision in the case,” has no application in the absence of a timely motion to strike testimony admitted over objection, and under such circumstances there is no presumption the evidence complained of was considered or entered into the final decision of the trial court. (Spencer v. Supernois, 176 Kan. 135, 140, 268 P. 2d 946; In re Estate of Johnson, 176 Kan. 339, 270 P. 2d 293; In re Estate of Walker, 160 Kan. 461,163 P. 2d 359; Harrington v. Propulsion Engine Corp., 172 Kan. 574, 582, 241 P. 2d 733; Bradbury v. Wise, 167 Kan. 737, 748, 208 P. 2d 209.) Moreover, it must be kept in mind admission of incompetent evidence, irrespective of whether it was considered, does not constitute reversible error if there was other competent evidence to sustain the judgment. (In re Estate of Wittman, 161 Kan. 398, 402, 168 P. 2d 541; In re Estate of Johnson, supra.) An examination of the entire record reveals that the evidence admitted was cumulative in character and did not affect the judgment of the trial court as rendered.
Defendants next contend that plaintiffs had such knowledge of the fraud in June, 1950, as to start the statute of limitations running as of that date, and since the action was commenced on July 31, 1952, it was barred by the two-year statute of limitations. G. S. 1949, 60-306, Third, in pertinent part, reads:
“Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: . . .
“Third. Within two years: ... an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.”
Defendants argued that in June, 1950, plaintiffs through their attorney, Nugent (defendant), were informed by a representative of Terminal Facilities Company that.Mr. Nugent did not have record title to any mineral interest in the Morton County land. On the same day Mr. Nugent notified Maude Mingenback, and wrote to the register of deeds of Morton County for a certified copy of 'the deed which came to Nugent’s office in July, 1950, during his absence.
The question is whether the mentioned information given Nugent was a discovery of the fraud within the meaning of the mentioned statute. The trial court held that the statute started to run on August 2, 1950, the date Nugent individually and as attorney for plaintiffs examined the records in the office of the register of deeds of Morton County, and discovered the reservation clause was not included in the deed in controversy.
Long ago this court defined the term “discovery of the fraud” in Marbourg v. McCormick, 23 Kan. 38, 43, wherein Mr. Justice Brewer speaking for the court said:
“‘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 exi.ting equities or the rights of third parties, but involves simply the question of liability between the immediate parties.”
This rule has been reiterated and applied in Dalton v. Hill, 169 Kan. 388, 396, 219 P. 2d 710; Gates v. Kansas Farmers’ Union Royalty Co., 153 Kan. 459, 465, 111 P. 2d 1098; Converse v. Watts, 127 Kan. 673, 275 Pac. 181.
This court has also followed the rule that if the evidence shows the conduct of the defendant was such as to throw plaintiffs off their guard, or to lull them into a sense of security so as to lead them to omit or forego the examination of the records, then the statute begins to run from the date of the actual knowledge of the fraud. (Faidley v. Emrich, 169 Kan. 233, 218 P. 2d 178; Staab v. Staab, 160 Kan. 417, 423, 163 P. 2d 418; Converse v. Watts, supra.) The record indicates that the plaintiffs’ interests were recognized by the defendants for a long period of time, and by gas producing companies as late as March, 1951. At no time, from the date of the execution and delivery of the deed on December 16, 1940, by the plaintiffs, was any question raised by any of the defendants as to the validity of their title and the title of Mr. Nugent to the one-third royalty interest. On August 2, 1950, Mr. Nugent examined the original records in Morton County and discovered they did not contain the reservation of minerals, and even then neither he nor plaintiff Mrs. Mingenback were alarmed because of the long continued recognition of their interests by the defendant Eugene C. Mingenback, who on numerous occasions categorically and unqualifiedly recognized plaintiffs’ one-third royalty interest. The most that could be said to support defendants’ contention was that Mr. Nugent was informed in June, 1950, that there was some ques tion as to the validity of his title. This evidence, however, was not sufficient to indicate there was a discovery of fraud. There was nothing in the conference between Nugent and the representative of the Terminal Facilities Company which would even remotely suggest to Nugent, or anyone else, that the deed in question had been fraudulently altered. The representative of the mentioned company was not a party to the settlement between the plaintiffs and defendants in the transfer of the deed containing the reservation. This action was between the parties to the original agreement of partitioning the property among them as heirs of an estate. No rights of third parties were involved. The long continued recognition of the interest of plaintiffs by defendants lulled them into a sense of security so that even after the company representative indicated there was some question as to validity of plaintiffs’ title, they had no reason to suspect that fraud had been perpetrated. The plaintiffs acted diligently upon receipt of such information. Nugent wrote to the register of deeds of Morton County for a copy of the deed. They mailed a copy which was delivered to his office in July during his absence from the state. Upon his return, August 2, 1950, he examined the records in the office of the register of deeds and for the first time discovered the deed did not contain the reservation. He immediately went to McPherson in an endeavor to see defendant Eugene Mingenback but was unable to contact him. Finally a conference was had in Mr. Nugent’s office on April 12, 1951, when defendant Mingenback’s attorney presented to Nugent the original deed from which the reservation of minerals had been removed, and for the first time learned that a fraud had been perpetrated. The record disclosed that the acts of the plaintiffs were those of reasonably prudent persons. They acted just like nearly all persons do who are subjected to the allegéd sharp practices and intrigues of those seeking to profit by others’ confidence in them and their promises.
In Converse v. Watts, supra, at page 679, it is stated:
“It doesn’t come with very good grace from the one whom the evidence tends to show had changed sacred instruments before placing them of record and followed that up with profound secrecy of such change and an incessant chain of promises which were evidently intended to take plaintiffs off their guard and lull them into thoughts of security, that reasonably prudent people should not have believed or trusted him.
‘The trend of the decisions of the courts of this and other states is towards tlie just doctrine, that where a contract is induced by false representations as to material existent facts, which are made with the intent to deceive, and upon which the plaintiff relied, it is no defense to an action for rescission or for damages arising out of the deceit, that the party to whom the representations were made might, with due dilligence, have discovered their falsity, and that he made no searching inquiry into facts. “It matters not,” it has well been declared, “that a person misled may be said in some loose sense to have been negligent. . . . For it is not just that a man who has deceived another should be permitted to say to him, ‘You ought not to have believed or trusted me,’ or ‘You were yourself guilty of negligence.’ ” ’ (Speed v. Hollingsworth, 54 Kan. 436, 440, 38 Pac. 496.)”
Under the record in this case, it is crystal clear that there was no “discovery of fraud” in June, 1950, or at any other time more than two years prior to the institution of this action, which would put the statute of limitations into operation.
Defendants next contend the court erred in its conclusion of law No. I, holding that the filing of the suit, issuing of summons and filing the affidavit for service by publication on July 31, 1952, suspended the running of the statute of limitations in favor of the defendants, and argued that the running of the statute was not suspended until the date of the service of summons upon the defendants, or the date of the first publication of notice of suit.
Personal service of summons was had on some of the defendants in McPherson County on August 4. On August 8, the first available publication date after suit was filed, notice was published. The court found that the statute of limitations started in the action in favor of the defendants on August 2, 1950. Defendants, therefore, contend that inasmuch as neither personal nor publication service was had on any of them prior to August 2, the action was barred by the statute.
G. S. 1949, 60-301, provides that a civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon.
For the purpose of the running of the statute of limitations, G. S. 1949, 60-308, provides:
“An action shall be deemed commenced within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant who is a joint contractor, or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this article when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days.”
It has long been the rule of this court that when an action is filed and summons issued, or an affidavit for publication filed within the period of limitation and the plaintiff faithfully, properly and diligently endeavors to procure service, the action is deemed commenced as of the date of the filing of the action, provided service of summons or first publication is actually had within sixty days. This rule was established without exception in Dunlap v. McFarland, Adm’r., 25 Kan. 488, 491, where it was stated:
“The action was commenced when the petition and praecipe were filed, and when the summons was issued. Section 20 of the Civil Code has application only to the statute of limitations; but even that section provides that ‘an attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party faithfully, properly, and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days/ ”
To the same effect, see Bannister v. Carroll, 43 Kan. 64, 69, 22 Pac. 1012; Canaday v. Davis, 79 Kan. 816, 101 Pac. 626; Brock v. Francis, 89 Kan. 463,131 Pac. 1179.
In Gigoux v. Griffith, 109 Kan. 275, 276, 199 Pac. 103, it was stated:
“An action is deemed to be commenced at the date of the summons which was served on the defendant, and an attempt to commence an action is equivalent to a commencement, when the plaintiff faithfully, properly and diligently endeavors to procure a service and the attempt is followed by service within sixty days.”
Plaintiffs clearly brought themselves within the mentioned statute by filing their action and causing summons to be issued, and affidavit for service by publication to be filed on July 31, 1952, and faithfully, properly and diligently procuring personal service of summons upon some of the defendants, followed by publication service on others within sixty days. Under such conditions, such service related back to the commencement of the action on July 31,1952, and the trial court did not err in so holding.
The defendants next contend that the trial court erred in holding that the acts of the defendant Eugene Mingenback, and the letters written by him to plaintiffs in recognition of their oil royalty, constituted fraud upon plaintiffs which entitled them to the reformation of the deed in question. The gist of defendants’ contention was that since the trial court made no specific finding as to whether the deed in question was altered before or after its execution and delivery, it was error for the court to hold that other unpleaded acts were fraudulent which entitled the plaintiffs to recover. We cannot agree with this contention.
The plaintiffs alleged in their petition that the deed in question had in some manner, without their knowledge or authority been altered after execution and delivery, and before it was recorded. Defendants conceded that the real issue of fact in the case was whether the reservation was removed from the deed before or after it was signed by the plaintiffs. If it was removed after execution, obviously it was removed before the deed was recorded, and such removal would be fraudulent. They also conceded that the original deed contained the reservation when it was prepared. There was an abundance of testimony, both direct and circumstantial, that the reservation was contained in the deed at the time it was executed and delivered to the defendants. Defendants’ counsel admitted that he clipped the reservation from the deed, but contended he did so with the consent of Nugent. This was denied by Nugent. There was an abundance of testimony that defendants recognized plaintiffs’ oil royalty interest on numerous occasions after the execution, delivery and recording of the deed, and that oil companies recognized plaintiffs’ interest in the property as late as 1951. The court had jurisdiction of the parties and of the subject matter, heard the evidence and made extensive findings of fact on which it based its conclusion of law No. Ill, supra, wherein it reformed the deed to include the deleted reservation.
It must be remembered that this was an equity action. In such actions, the court may deal with the case in accordance with its own good judgment and discretion as justice demands. We said in Eberhardt Lumber Co. v. Lecuyer, 153 Kan. 386, 110 P. 2d 757:
“A trial court, sitting as a court of equity, is not obliged to render the specific decree prayed for, but may render a decree in accordance with its own good judgment or discretion as to what justice demands, in view of facts, pleadings and evidence adduced.”
If the facts put in issue and established by evidence entitle the party to any relief in the power of the court to give, although not demanded, it is the duty of the court to give it, and its power to do so is not conditioned upon the form of the prayer. (Hardy v. LaDow, 72 Kan. 174, 177, 83 Pac. 401.) Equity will give whatever relief the facts warrant. (Cowman v. Phillips Petroleum Co., 142 Kan. 762, 768, 51 P. 2d 988.) The distinguishing feature of equity jurisdiction is that it possesses full power to apply settled rules to unusual conditions and to mold its decree so as to do equity between the parties. (Hultz v. Taylor, 163 Kan. 180, 185, 181 P. 2d 515.)
In Hawkins v. Smith, 153 Kan. 542, 111 P. 2d 1108, we held that it was a well-settled principle of equity jurisprudence that where the court has all the parties before it, it will adjudicate upon all the rights of the parties connected with the suit, so far as it can, so as to avoid a multiplicity of suits. Courts of equity may adjust their decrees so as to meet most, if not all, the exigencies which may arise; and they may vary, qualify, restrain and model the remedy so as to suit it to the mutual and adverse claims controlling equities, and the real and substantial rights of the parties. Coúrts of equity having acquired jurisdiction of the parties and the subject matter of the suit, have the inherent power to make all necessary orders, decrees and judgments, so as to settle the matters in controversy, and thus prevent further litigation.
In the instant case, all parties in interest being present, the power of the court to render such judgment as the facts required under the pleadings and the evidence was proper. Many of our cases sustaining the foregoing rules may be found in 2 Hatcher s Kansas Digest [Rev. Ed.], Equity, §§ 40, 41.
Moreover, this court is also committed to the rule that a general finding made by the trial court determines every controverted question of fact in support of which evidence had been introduced. (Sledd v. Munsell, 149 Kan. 110,113, 86 P. 2d 567.)
Inherent in the trial court’s conclusion No. Ill, supra, reforming the deed to include the reservation clause, and entering judgment in accordance therewith, was the finding that after the deed had been executed and delivered by the plaintiffs, it had been wrongfully and fraudulently altered by the defendants or their agents by deleting therefrom the reservation contained in the deed at the time of its execution and delivery. An examination of the voluminous record in this case reveals that substantial justice has been accomplished.
Other contentions presented by defendants have been considered and found to be without substantial merit. It follows that the judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the district court of Harvey county sustaining tire action of the probate court in allowing the claim of the State Department of Social Welfare, hereinafter referred to as appellee, against the estate of Sherman L. Ward, deceased, hereinafter referred to as appellant, for the recovery of old age assistance granted deceased during his lifetime, which it is claimed he obtained by fraudulent representations to the State Department of Social Welfare. The case was presented to the trial court on the following stipulation of facts: The decedent Sherman L. Ward, on August 2, 1937, submitted a written, verified application to the Harvey county board of social welfare in which he represented that he had no property or resources to provide himself with reasonable subsistence compatible with decency and health. (G. S. 1937 Supp., 39-709.) On this application the department of social welfare furnished Ward subsistence from 1937 until the date of his death. At intervals of approximately every three months during his lifetime, Ward represented to authorized representatives of the Harvey county board of social welfare that he was without income or resources to provide a reasonable subsistence compatible with decency and health, the last of these representations being made on November 20,1951. On November 23,1951, it was discovered by an attendant of Ward that he had $915 in cash in his billfold. It was agreed that Ward owned the money on that date. At no time prior to November 23 did the Harvey county board of social welfare know that Ward had property or money; that the representatives of the board had checked at various times and were unable to locate any property, money, goods or chattels belonging to him. Ward accepted no further payment after November 23,1951, nor did he make any statement that he was without income or resources after that date. It was further agreed that any individual having resources of over $250 was ineligible for assistance, and had the welfare board or its agents discovered at any time Ward had acquired over $250 in cash, the assistance payments would have thereupon been terminated. Sherman L. Ward died November 25, 1951, and Flora Francis was duly appointed as executrix of his estate.
On the facts as stipulated, the court rendered judgment in favor of the appellee State Department of Social Welfare, and against the estate of Sherman L. "Vyard, deceased, for the recovery of the payments made to the deceased in his lifetime, from which judgment the executrix appeals.
The substance of appellant’s contention is that before the appellee is entitled to recover, it is incumbent upon it to prove that Ward, recipient of the assistance, had in his possession more than $250 at the time he made application and received assistance, and that fraud cannot be presumed.
The question presented in this appeal rests on the application of G. S. 1951 Supp., 39-720. The pertinent part reads:
“Any person who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled, is guilty of a misdemeanor, . . .; and he shall be required to remit to the county board or private agency the amount of any assistance given him under such fraudulent act. In any civil action for the recovery of assistance on the grounds the assistance was fraudulently obtained, proof that the recipient of the assistance possesses or did possess resources which does or would have rendered him ineligible to receive such assistance shall be deemed prima facie evidence that such assistance was fraudulently obtained. . . .” (Emphasis supplied.)
It is well settled that the legislature has some power over the rules of evidence and it has power to prescribe new and alter existing rules, or to prescribe methods of proof. It may make a fact or circumstance which, in its judgment, bears on a disputed question, prima facie evidence on the subject. (State v. Sheppard, 64 Kan. 451, 67 Pac. 870; Jones v. Hickey, 80 Kan. 109, 114, 102 Pac. 247; 20 Am. Jur. 38, Evidence, § 8; 12 C. J., Constitutional Law, § 285.)
The general rule of law is stated in 20 Am. Jur. 39, Evidence § 9:
“The distinctions generally observed by the courts regarding the validity of statutes which make one fact evidence of another are between legislative declarations that certain facts shall be conclusive evidence of another fact and those that they shall be prima facie or presumptive evidence of another fact. While the legislature cannot constitutionally make one fact conclusive evidence of another, it is well established that it may provide by statute or ordinance that certain facts shall be prima facie or presumptive evidence of other facts, if there is a natural and rational evidentiary relation between the facts proved and those presumed. Such statutes or ordinances are within the well-settled powers of a legislative body to change the rules of evidence, and do not infringe upon die rights of the judiciary or violate any other provisions of the Federal or state Constitution. . . .”
In State, ex rel., v. Public Service Comm., 135 Kan. 491, 495, 11 P. 2d 999, we said it was well-settled law that the legislature may prescribe what matters shall have the force of prima facie evidence.
In State v. Nossaman, 107 Kan. 715, 721, 193 Pac. 347, 20 A. L. R. 921, we said it was competent for the legislature to make proof of one fact prima facie evidence of another fact essential to the guilt of the accused where the fact presumed had a fair relation to or some natural connection with the fact to be proven. The term “prima facie evidence” carries the inference that such evidence may be rebutted and overcome, and notwithstanding the rule, an accused has the opportunity to submit his evidence and make a full defense.
In the instant case, proof supplied by the stipulated facts disclosed that Ward on November 23, 1951, had in excess of $250 in his pos session, which fact rendered him ineligible to receive assistance. This was sufficient evidence under the statute to make out a prima facie case that he possessed such resources at the time he received the assistance from the appellee, and it necessarily follows as a natural conclusion under these facts that the assistance was fraudulently obtained.
In State v. Allison, 173 Kan. 107, 244 P. 2d 176, we stated that the acceptance from month to month of payments for assistance after the situation of the recipient has changed so that he is no longer entitled, without disclosure by him to the proper authorities that he is no longer entitled, is the obtaining of assistance by fraudulent means.
The appellant’s right to be heard was not cut off in this action. The executrix of the estate had the opportunity to show that Ward did not have resources in excess of $250 at the time he obtained the assistance, or any part thereof. However, she chose to enter into a stipulation of facts upon which the court rendered judgment, and she was bound thereby. In view of what has been said, the judgment of the lower court is affirmed.
It is so ordered. | [
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The opinion of the court.was delivered by
Wedell, J.:
The state, on the relation of the attorney general, filed an action in which it sought an injunction to prevent defend ants from making loans at illegal interest rates and the appointment of a receiver to take complete possession and control of defendants’ property.
The district court granted both forms of relief. Defendants have appealed from (1) the order appointing a receiver and (2) the order overruling their motion to quash the service of summons.
Before considering the merits of the appeal we are confronted with appellee’s contention the appeal should be dismissed. Appellee’s argument is based on the fact no notice of appeal was served on the receiver. The pertinent part of G. S. 1949, 60-3306, pertaining to service of the notice of appeal, reads:
“A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record. . . .” (Our italics.)
In support of appellee’s contention it relies on Peoples State Bank v. Hoisington Mercantile Ass’n, 118 Kan. 61, 234 Pac. 71; White v. Central Mutual Ins. Co., 149 Kan. 610, 88 P. 2d 1041; In re Estate of Weaver, 170 Kan. 321, 224 P. 2d 1004; In re Estate of Bergner, 173 Kan. 582, 250 P. 2d 781. In the first cited case the court distinguished between the necessity for service of notice of appeal under the old statute and the instant one. It was held to be unnecessary now that some of the parties against whom a joint money judgment was rendered, but who were content with the measure of 'justice accorded them, be made parties to the appeal. In the White case it was held:
“An adverse party in a civil action on whom notice of appeal must be served (under G. S. 1935, 60-3306) is a party to the litigation, to whose interest it is that the judgment of the trial court be upheld, and who is interested in opposing the relief sought by appellant, following Peoples State Bank v. Hoisington Mercantile Ass’n, 118 Kan. 61, 234 Pac. 71.
“In a civil action three parties moved to set aside as void a former judgment of the court favorable to plaintiff. The court considered and sustained all the motions. Plaintiff appealed as to two of the parties only. Held, the appeal must be dismissed.” (Syl. ¶ 1, 2.) (Our italics.)
The rule stated in paragraph 1 of the syllabus in the White case was followed in the Weaver and Bergner cases. In the Weaver case syllabus 2 reads:
“On appeal from a judgment appointing an individual as the sole executor of the estate of a deceased person such fiduciary is a necessary party to the appeal and must be made a party thereto.”
In the Weaver case William H. Barnes was an heir and devisee of the decedent, Rebecca May Weaver. William H. Barnes was also the sole executor of her estate. As executor he filed an answer in the probate court and hence was an actual party to the litigation. Failure to serve notice of appeal on him was, therefore, fatal to the appeal and it was dismissed.
In the Bergner case no notice of appeal was served on John C. Bergner, who was one of the devisees and beneficiaries under both the wills involved. He appeared and filed an intervening answer and a reply and was, therefore, a party to the litigation. He was not only a party to the litigation but was an adverse party within the meaning of the appeal statute and failure to serve notice of appeal on him rendered the appeal defective.
Among other cases bearing on the same subject are Protzman v. Palmer, 155 Kan. 240, 124 P. 2d 455; Grant v. Reed, 163 Kan. 105, 179 P. 2d 945. They need not be reviewed.
From examination of the above notice of appeal statute and the foregoing cases it is clear that persons on whom notice of appeal is required to be served are “. . . adverse parties whose rights are sought to be affected by the appeal. . . .” (Our emphasis.) The mere fact some person may have an interest which may be affected by the appeal does not require that he be served with notice of appeal. We are bound by the language of our statute and not by statements of a general rule contained in textbooks.'
In the instant case the receiver was not a party to the litigation in any sense. He did not represent any of the parties and filed no pleading in his own behalf. He was an officer of the court entrusted with the possession and management of the property. Not being a party to the litigation and having filed no pleadings on which issues were joined involving his interest he was not an adverse party. Failure to serve him with notice of the appeal did not render the appeal defective. In the early case of Plow Co. v. Rude, 60 Kan. 145, 55 Pac. 848, it was held:
“A receiver appointed to take possession of property involved in the litigation during the pendency of the suit, who does not stand as the representative of any of the parties nor file any pleadings in the case, is a mere stakeholder, and is not a necessary or proper party in a proceeding in error brought to review the judgment of the trial court.” (Syl. If 1.)
We now turn to the next question. It is whether a receiver should have been appointed. One point raised by appellants is the insufficiency of the verification of the petition for his appointment. The verification of the petition was signed by counsel on information and belief. It is the same form of verification as that contained in a similar action involving the appointment of a receiver in the recent case of State, ex rel., v. Molitor, 175 Kan. 317, 263 P. 2d 207. In that case the authorities on the sufficiency of a verification of a petition for the appointment of a receiver were reviewed at length. We need not repeat that review. It was there held:
“In an action to enjoin defendants from engaging in an unlawful practice of lending money at usurious rates of interest and for the appointment of a receiver to take possession of and assume control over defendants’ business where the appeal is from the order appointing a receiver and from no other order, the record is examined and it is held that (a) this appeal in no way involves the power of the state to obtain an order enjoining the defendants from engaging in an alleged unlawful practice; (b) the sole issue presented by this appeal is whether a receiver was properly appointed to take complete possession of and control over defendants’ property; (c) a receiver to take possession of and dominion over the property of a defendant may only be appointed upon evidence; (d) such evidence by the usages of courts of equity may be by witnesses or affidavits; (e) in such a case a petition properly verified may be used as evidence; and (/) a petition verified on information and belief only is not an affidavit and is no evidence whatever upon which to base the appointment of a receiver.” (Syl.)
We are advised no affidavits other than the verification attached to the petition were filed in support of the appointment of the receiver. Appellee does not controvert that statement. In fact appellee’s brief contains no argument in support of the sufficiency of the verification or of other evidence introduced to justify the appointment of a receiver.
It is next contended no notice of a hearing for the appointment of a receiver was served on either of the original defendants, John Doe or M. J. Larchey, doing business as Acme Finance Company. Such lack of notice is conceded by appellee. In fact the petition requested the appointment be made without notice. Having concluded the receiver was improperly appointed for another reason we need not pursue the second contention on that point.
The other question is did the court err in overruling the motion to quash the service of summons? Defendants named in the original petition were John Doe and M. J. Larchey, doing business as Acme Finance Company. A praecipe for summons was filed August 5, 1953. It requested that the sheriff of Sedgwick county serve the defendants, John Doe and M. J. Larchey, doing business as Acme Finance Company. The sheriff's return made August 6 recites that M. J. Larchey was not found in Sedgwick county and reads:
“Received this writ 8-5-53, and as commanded therein, I summoned the following persons, of the defendants within named, at the times following to-wit:
“John Doe dba Acme Finance Co., 8-6-53
“By June Cowley, 8-6-53
“-, -, 19-
“-, -, 19-
by delivering to each of said defendants, personally, in said county, a true copy of the within summons with all the endorsements thereon.”
On August 12, not the individuals named as defendants, but the “Acme Finance Company,” appeared specially and moved to have the service quashed. An examination of the motion discloses it was not made by the parties defendant but by “Acme Finance Company” as a legal entity, contrary to the allegations of the petition. The grounds of the motion indicate counsel labored under the erroneous impression the summons and return thereon should have conformed to the law pertaining to service on corporations. We need not discuss other grounds on which the court may have overruled the motion to quash the service. The motion by Acme Finance Company was properly overruled. There was no such legal entity in the lawsuit.
On the same day, August 17, the court heard the oral motion of June Cowley, in which she appeared specially on her own behalf to quash the service of summons. The court found her motion should be sustained. That order reads:
“It Is, Therefore, by the Court Ordered that as it relates to John Doe, d/b/a Acme Finance Co., per June Cowley, the service of summons should be and the same is hereby quashed.” (Our italics.)
It should be recalled June Cowley was not named as a defendant in the original petition. This was her own motion filed in her own behalf and as to her it was sustained.
On August 22, 1953, plaintiff filed a praecipe for a so-called alias summons on the defendant Nicholas J. Larchey, 4020 East Kincaid (not on M. J. Larchey, who was the other individual defendant named in addition to John Doe). The sheriff's return on that summons discloses service of summons on Nicholas J. Larchey personally on August 22. No point is made by the parties relative to the discrepancy in Larchey’s name. That service is not challenged.
On August 24 appellee filed its amended petition. On August 25 a praecipe for summons was issued to the persons named as de fendants in the amended petition. None of them were the same defendants as those named in the original petition. The new defendants were George Miller, E. F. Vandemeer and June Cowley, doing business as Acme Finance Company. The amended petition stated the residence of George Miller was Tulsa, Okla., and that of E. F. Vandemeer and June Cowley was in Wichita, Sedgwick county, and that the defendant, E. F. Vandemeer, at all times mentioned in that petition, was and is the manager in charge of the business and had custody and control of all of its assets, records, books, etc. The record before us discloses no return on any summons issued after the filing of the amended petition and we do not know whether they have been served with process. The record discloses no ruling on the question whether the newly named defendants could be substituted in an amended petition. That question is not before us and manifestly we express no views thereon. We are concerned only with orders or rulings made and from which an appeal has been perfected.
On the record before us the district court did not err in overruling the motion of August 17, 1953, to quash the service of summons on the defendant, John Doe. The personal service on the other defendant, Nicholas J. Larchey, on August 22, is not challenged. On the record presented we shall not say the district court was without jurisdiction on August 5 to issue a restraining order to prevent the alleged illegal operation of the loan business.
On August 31 Eugene Vandemeer, doing business as Acme Finance Company, perfected a notice of appeal to this court. A statutory bond was filed which under provisions of G. S. 1949, 60-1209, suspended the authority of the receiver until determination of the appeal. As previously stated, the appeal was from the order of August 7 appointing the receiver and from the order of August 17 overruling the motion to quash service of summons. The notice, however, included all orders and decisions. No later appeal was taken from proceedings subsequent to the notice of appeal dated August 31 and that notice of appeal has not been amended in any particular. We, therefore, are not concerned with orders or decisions, if any, made after that date.
What has been said herein on the two specific orders appealed from makes comment on other specifications of error unnecessary. The order appointing a receiver was invalid and is reversed. The order overruling the motion to quash the service of summons was proper and is affirmed. It is so ordered. | [
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|
The opinion of the court was delivered by
Smith, J.:
This is one of a series of appeals involving various provisions and phases of G. S. 1949, 42-701 et seq. See State, ex rel., v. Knapp, 167 Kan. 546, 207 P. 2d 440, in which the constitutionality of the act was upheld generally. It was a quo warranto action by the state in the name of the attorney general. Mizer v. Kansas Bostwick Irrigation District, 172 Kan. 157, 239 P. 2d 370, was an injunction action brought by landowners in the district to enjoin the district from proceeding with an action to confirm a contract the district had entered into with the United States. In it the constitutionality of Chapter 304 of the Session Laws of 1951 was upheld. Kansas-Bostwick Irrigation District v. Larson, 173 Kan. 379, 245 P. 2d 1213, was the original action to confirm the contract. In it the district court was directed to afford certain objectors to assessments an opportunity to file pleadings, to hear their complaints, as ordered in Mizer v. Kansas Bostwick Irrigation District, supra. This appeal is occasioned by the activities of both parties in attempting to frame the issues pursuant to the order in the latter case.
In order more clearly to state the legal questions with which we are presently confronted it will be wise to review as briefly as possible the points decided in the other cases.
G. S. 1949, 42-701 to 730, inc., provided for the organization of irrigation districts. G. S. 1949, 42-721 provided for the district entering into a contract-with the United States for the construction of irrigation works and that such contract might provide for the payment of the cost thereof and for the levy and collection of assessments against the land benefited. It also contained a provision as follows:
“Provided no assessment shall be thus made against the lands of any person in district without said proposal or the contract providing therefor being first submitted to the electors of said district and approved by a majority of the electors of said district.”
This section was amended by Chapter 304 of the Session Laws of 1951. That amendment provided as follows:
“Provided, That before any assessments shall be extended on the tax roll against any lands in the district, or the contract providing therefor becomes effective, the board of directors in the district shall file an action in the district court in which the greater part of said district is located, for the approval of any such contract and for the approval of the proposed assessments. A copy of the proposed schedule of assessments shall be attached to the petition or embodied therein. Service of process shall be deemed sufficient upon the publication of a notice in three issues, a week apart, in some newspaper of general circulation in the district. Said notice shall be addressed ‘To the landowners of Irrigation District No-- — . in 2-County, Kansas:’ (the number of the district and the name of the county to be filled in) and said notice shall state that a description of the various tracts of land in the district and the respective amounts of assessments proposed for each tract, as fixed by the board, may be examined in the office of the clerk of said district court. It shall not be necessary that the notice contain the description of the various tracts of real.estate, or of the total real estate, within the boundaries of the district. Such notice shall specify a date not earlier than thirty days after the date of the first publication of said notice and not later than forty days thereafter within which any qualified owner of land within the district shall file his answer, or other pleadings, to said petition challenging the assessment against his property, if he believes a proposed assessment against his property is either: too high; erroneously computed; or not uniformly assessed in proportion to other tracts within the district. Upon trial of said cause, the court shafi hear evidence concerning the correctness and uniformity of assessments and may modify the schedule of assessments in accordance with such evidence. The court hearing such evidence shall review the schedule of assessments as proposed by the board of directors and shall not disturb the findings and assessments of the board unless the proposed assessments are manifestly disproportionate. The assessments as determined by the district court shall be final and a conclusive determination that all such proposed assessments have been made in proportion to the benefits conferred upon such properties by reason of the improvements to be constructed, and such assessments shall constitute a perpetual lien on the properties so assessed, until paid. The approval of the proposed contract by the trial court, together with any approved changes or modifications of the same, shall be final and binding upon the parties signatory to said contract. For the purpose of defraying the expenses of organizing the district and the maintenance, operation, management, repair and improvement of such irrigation works, including salaries of officers and employees, the board may collect water rentals or service charges, or may levy assessments therefor, or by a combination of methods.”
It will be noted the amendment of 1951 substituted an action in the district court for the election provided for in the original act. It might be wise to note here that Section 36 of Part R of the contract, the confirmation of which this action seeks, provides:
“This contract shall not be binding upon the United States, nor shall any water be delivered pursuant to Part A of this contract until the proceedings on tire part of the District for the authorization of the execution of this contract shall have been confirmed by decree of a court of competent jurisdiction or pending appellate action if ground or appeal be laid. Upon the execution of this contract, the District diligently shall prosecute to final conclusion such confirmation proceedings.”
This action was filed by the district pursuant to G. S. 1949, 42-721, as amended by Chapter 304 of the Session Laws of 1951 quoted above. Refore it was at issue Mizer v. Kansas Bostwick Irrigation District, supra, was begun. In it the plaintiff representing himself and other landowners in the district set out the proceedings up to that date and the pertinent statutes and asked that Chapter 305 of the Session Laws of 1951 be held unconstitutional and that the district be enjoined from proceeding any further with the action that was brought to secure confirmation of the contract. Thus we had a situation where there was pending an action specially authorized by a statute to secure confirmation of a contract and in the same court an action seeking to enjoin the parties from proceeding with the former action. The trial court heard the injunction action, found the act pursuant to which this action to confirm was brought to be unconstitutional and void, and granted the injunction. This judgment was appealed to us and we reversed the trial court. We held that neither G. S. 1949, 42-701 et seq. nor Chapter 304, Laws of 1951 violated the constitution. (See Mizer v. Kansas Bostwick Irrigation District, supra.) While this appeal was pending the trial court stayed all proceedings in this action that had been brought to secure confirmation of the contract, pending the outcome of the injunction case. At that time various motions and demurrers were pending and undecided in the action to confirm.
Our order in the injunction case directed the trial court to dissolve the injunction and to proceed with the determination of that action and to determine whether any assessment as to any particular tract of land, which assessment was challenged in a pleading filed by the owner of that particular tract in due time was manifestly disproportionate and if it found no such assessment to be so manifestly disproportionate to confirm the contract.
On December 8, 1951, our decision was handed down. On January 5, 1952, Honorable W. D. Vance, the judge before whom all the proceedings were had, died. On January 25, plaintiffs in the action to confirm filed a motion for judgment and the matter was argued before the successor judge. On February 4, 1952, the court overruled ajl motions and demurrers filed by the defendant, sustained the motion of the district for judgment, entered an order confirming and approving the contract between the federal government and the district and held the proposed assessments as set out in the petition to be correctly and uniformly assessed.
On appeal we pointed out that while the proceedings were pending the parties, in colloquies between court and counsel, were given assurance that their right to file answers setting up any defenses would be fully preserved and protected and the judgment in question had the effect of cutting off these rights.
Our order in that case was that the judgment be reversed and the trial court was directed to proceed in accordance with the direction contained in the last paragraph of our decision in the injunction case, Mizer v. Kansas Bostwick Irrigation District, supra.
This brings us to the record in the instant appeal. The petition set out the organization of the district, the execution of a contract between the United States, a copy of which was attached to the petition, the estimated cost of the distribution system.
This petition contained an allegation as follows:
“9. Article 16 of the said contract provides for the apportionment of the construction charge for the distribution system, when the total charge has been determined, and which shall not exceed $3,500,000.00. Under such contract and laws applicable thereto, the construction charge is tó be apportioned ■ to
three land classes, taking into account their soils, topography, productivity and benefits accruing thereto by reason of such irrigation system. The irrigable land within the district has been thus classified and the apportionment of the estimated cost of three million five hundred thousand dollars apportioned to such lands in accordance with such classifications. The law authorizes after the total cost has been exactly determined, and after the development period, that such lands may be reclassified, and such cost reapportioned in accordance with the then determined facts as to such lands, taking into account their soils, topography, productivity and benefits accruing thereto by reason of such irrigation.
“10. The maximum amount of $1.62 for each acre of irrigable land within the district is a reasonable amount for the water service to be furnished by the United States under said contract; but that amount may be less than such sum, depending upon the actual cost of materials, labor and other essentials that go into the determination of such charge for water service, and which annual charge cannot at this time be exactly determined.
“11. Attached hereto as Exhibit 3 is a schedule of the assessments for the payment of said $3,500,000.00 as assessed against the irrigable lands within the district in accordance with the land classes as provided in said contract, and which land classes have been determined as provided in Article 16 of said contract. Said Exhibit 3 sets forth the record owners of the land described and its classification and the number of acres in each of said classes of land; and that the total assessment is ascertained for each tract by multiplying the acres in class 1 by the sum of $108.00, the acres in class 2 by $73.00, arid the number of acres in class 3 by $50.00. Said sums being the proportionate share that each of these classes of land should pay, in accordance with the Bureau’s standards and taking into account the soils, topography and other relative conditions, including the benefits thereto by reason of the said irrigation works. That such payments are to be made annually for the forty year period beginning after the development period, as set forth in said contract, and all of which are in accordance with the laws applicable to such contract.
“12. Said Exhibit 3 sets forth the owners of said real estate within the district as shown in the offices of the Register of Deeds of Republic and Jewell Counties, or otherwise determined; and said Exhibit 3 sets forth the acreage of all lands and all irrigable lands in each of the said tracts set forth therein, together with the assessment against such tracts for the payment of the contract cost for such distribution system. Filed herewith, and made a part hereof, are two maps showing the lands within the district.”
After our mandate in Kansas-Bostwick Irrigation District v. Larson, supra, reached the trial court the defendants filed a motion that the irrigation district be ordered to make its petition more definite and certain by attaching to its petition plans for the irrigation system, which plans should show in detail the main canals, lateral canals and other canals or ditches by which the water should be carried to the lands of each of the landowners in the district. The motion stated there were no plans available in the office of the clerk of the court which would enable the movants to determine the benefits to be received from the proposed irrigation works nor could they determine whether such assessments were disproportionate or inequitable.
On November 16 this motion was sustained and the district was ordered to file any such plans, maps and specifications it had on which it based its proposed schedule of assessments.
In response to this order the district filed a pleading in which it stated it never had any such plans, maps and specifications, but caused the proposed schedule to be made from certain data furnished by the bureau of Reclamation, which was filed as showing the plan and formula, whereby the assessments would be levied. The response further alleged the district would not have such information for the purpose of making assessments until such distribution works had been constructed and the five-year development period had expired and then the board would, as provided by law, classify the land to be irrigated and determine the benefits thereto; that the bureau of Reclamation was conducting a survey and the board was informed the acreage to be irrigated would be considerably less than was contemplated; that the system would doubtless be built for block 1 first and when that was done and the five-year development period had expired, then the district would classify the irrigable land in accordance with law and submit to the interested landowners, as provided by law.
To this response the landowners filed a motion to dismiss the action on the ground that the district conceded it had no data whereby it might classify the land and there was no schedule of assessments which could be approved by the court and the approval of a proposed schedule of assessments was a condition precedent to the approval of the contract because there was no schedule having any proper basis which could be approved by the action or approval of the schedule of assessments and the contract had been prematurely brought and should be dismissed.
In answer to this motion to dismiss the district referred to our opinion in State, ex rel., v. Knapp, supra, where we stated:
“The defendant, Kansas Bostwiclc Irrigation District No. 2, is but a small part of the large project of the federal government authorized by the Act of Congress of December 22, 1944 (58 Stat. 887), pursuant to which the United States is constructing the Missouri River Basin Project as set forth in House Document 475 and Senate Document 191, as revised and coordinated by Senate Document 247, all of the 78th Congress, second session. (See 43 U. S. C. A. § 371 et seq., including the above and related Acts of Congress.)”
On the same page this decision points out that these acts of congress became a part of the supreme law of the land and that the compact set forth in G. S. 1949, 82a-518, is binding upon the citizens of Colorado, Kansas and Nebraska, and “on the judicial and the executive branches of the state government.”
The answer then pointed out various steps that had been taken and money that had been expended in construction of diversion dams and a main canal; that the obligations of the federal government to supply water to the district totaled $4,080,756, of which the greater portion had been paid, and the balance would be paid in the near future; that under the contract attached to the petition the district had agreed to take water and to pay the federal government a sum not exceeding $1.62 an acre; that such was the water part of the contract and was authorized by federal and state laws; that both the federal and state laws required court approval of the contract dealing with the distribution system; that this court pointed out in State, ex rel., v. Knapp, supra, that the federal law had been complied with and in reliance upon that decision the federal government had constructed a diversion dam and 28/2 miles of main canal in Kansas; that the distribution system was a necessary part of the works authorized by the federal and state laws authorized by State, ex rel., v. Knapp, supra, and as a result the contract before the court was executed; that the board did not intend unless ordered to do so to use the schedule of assessments attached to the petition in determining the assessments to be levied against any of the land within the district nor to classify the land to be irrigated until the distribution works had been completed and five years had elapsed and the board will then so classify it.
An amendment to this answer then contained arguments as to why the position of the movants was not sound.
The trial court in a memorandum decision stated the position of the district to be that any approval of the schedule of assessments at that time would be premature but that the contract should be approved and the proposed amendments disregarded while protestants insisted that the approval of the contract was dependent upon the approval of the proposed assessments and they had insufficient information on which to base an intelligent objection that a tract or tracts were disproportionately assessed. The trial court pointed out that the jurisdiction of the court was limited to the duty of determining whether any assessment as to any tract of land, which assessment was challenged in a pleading filed by the owner thereof was manifestly disproportionate. The court further stated:
“It appears that the legislature intended that the landowners within the District have some yardstick to measure the cost of construction of the Irrigation System and the number of acres chargeable therewith. In order to determine whether the proposed assessment of a particular tract or tracts, within said District, is disproportionate, it is necessary that they have access to more information than is now available. Once this is furnished by die Petitioner, this Court is limited to the determination of whether a tract or tracts are disproportionately assessed as set out in the schedule of proposed assessments if objection be filed in time. Once this is determined, then this Court must approve the contract.”
The order of the court was that the motion to dismiss be overruled and that the district be directed to file maps showing the location of the distribution system as then proposed and an estimate of, the proportionate cost of this construction and that the landowners within the district for twenty days thereafter may file individual answers objecting to the proposed assessments. In compliance with this order the district on September 11, 1953, filed maps showing the location of the distribution system then proposed in blocks 1 and 2; stated that the final location of the system as to block 3 had not yet been determined. Thereupon the objectors moved the court for an order striking the above maps from the files and to dismiss the action on the ground that the district had failed to comply with an order of September 11, 1953, and the movants further stated that no landowner was in a position at that time to determine the benefits to be derived from irrigation and they could not determine whether or not any assessments were disproportionate and could not plead to protect their rights as landowners. At the hearing of this motion the counsel for the district stated that the law did provide apparently that the court should make a final determination as to the assessments. He pointed out in the case of Mizer v. Kansas Bostwick Irrigation District, supra, this court stated the court should not make any final determination as to assessments. He further stated as follows:
“So as to clarify somewhat the situation, at this time I’m making this request and offer on behalf of the District; to withdraw all requests heretofore made in the initial petition and otherwise for a final determination of the assessments as proposed in the schedule of assessments attached to the petition, but submit this proposed schedule of assessments as showing a correct plan in determining the assessments to be levied against the benefited lands to raise funds to pay for the distribution system as provided in the contract, and now we request approval of the contract and the plan.”
On October 8, 1953, the court in a memorandum decision found that the request of the district should be granted with the exception of that part of the motion seeking approval of the plan. The court further stated it could find no authority whereby the plan as requested by the district might be approved by the court; that that part of the motion was disallowed. The motion of the landowners for judgment was disallowed. The court stated that it was directed by us to determine whether or not any assessments as to any particular tract should be assessed, which assessment was challenged in a pleading filed in due time, was manifestly disproportionate and that if no such assessment was disproportionate to approve the contract. The court said the schedule of assessments was withdrawn by the landowners and left only the approval of the contract for consideration by the court and such could cause the landowners no surprise. The court stated:
“It is the opinion of the Court that the withdrawal, by said Petitioner, of the consideration of the schedule of assessments for the purpose of determining if any particular tract of land within said District was disproportionately assessed, eliminates one phase of the Mandate of the Supreme Court of Kansas, handed down in said action, and leaves for consideration of this Court, under said Mandate, only the approval of said Contract. It appears this Court has no alternative other than to approve the Contract. By virtue of the fact the special assessment question has been withdrawn, there can be no lien against lands within said District at this time for said special assessments.”
The order of the court was that the contract between the landowners and the United States be approved.
The journal entry recited the steps which have been detailed here and adjudged that the request of the landowners to withdraw the request for final determination of assessments, as proposed in the schedule of assessments attached to the petition, should be .granted but the request for approval of die plan as shown by the .said schedule of assessments was not approved by reason that the court was without jurisdiction to approve such -a plan and it was adjudged that the contract between the district and the United States was approved. The landowners appealed from the •order of October 26 denying their motion to strike and dismiss .and for judgment and that the district be required to recast its petition and from the order approving the contract and all adverse rulings. The district appealed from the judgment entered on October 26, wherein the court refused to approve the plan as shown by the proposed schedule of assessments.
The specifications of error are that the court erred in overruling and denying the motion of the landowners to strike the maps from the files on October 15, 1953, and in overruling appellants’ motion to dismiss the action; in overruling the motion of appellants for judgment after withdrawal of the schedule of assessments or in the alternative that the petitioner be required to recast its petition upon the withdrawal of its prayer for the approval of the proposed assessments; and in approving the contract between the district and the United States.
The appellants take the position that G.' S. 1951 Supp., 42-721, must be literally and strictly followed. They point out, the section provides for the approval of the contract and of the schedule of assessments. They then argue that since we in Mizer v. Kansas Bostwick Irrigation District, supra, directed the trial court to proceed to determine whether any assessment as to any particular tract of land, which assessment was challenged in a pleading filed by the owner, was manifestly disproportionate and if the court found no such assessment to be manifestly disproportionate to approve and confirm the contract, and since the district concedes that none of the assessments attached to the petition can become final until five years after the completion of the system, then the approval of a proposed schedule of assessments by the district court is a condition precedent to the approval of the contract, the statute is unworkable and the entire plan must fail.
This argument fails to take into consideration all the various statutes and the elements as referred to in Mizer v. Kansas Bostwick Irrigation District, supra, where we said:
“Chapter 304 of the Laws of 1951 in a provision, the validity of which is not questioned, provides that ‘any irrigation district may enter into an agreement with the United States or any department, bureau or agency thereof in pursuance of the federal laws governing such, department, bureau or agency.’ All the pertinent federal statutes, the compact between Kansas, Nebraska and Colorado, the contract between the district and the United States, G. S. 1949, 42-701 to 42-730, and chapter 304 of the Laws of 1951, must be construed together. It is our.duty to uphold legislation, rather than to defeat it, and if there is any reasonable way to construe legislation as constitutionally valid it should be so construed.”
See, also, State, ex rel., v. Knapp, supra, where we said:
“Before taking up the specific questions submitted for determination by the stipulation we must take note of the fact that the defendant, Kansas Bostwick Irrigation District No. 2, is but a small part of the large project of the federal government authorized by the Act of Congress of December 22, 1944 (58 Stat. 887), pursuant to which the United States is constructing the Missouri River Basin Project as set forth in House Document 475 and Senate Document 191, as revised and co-ordinated by Senate Document 247, all of the 78th Congress, second session. (See 43 U. S. C. A. §371 et seq., including the above and related Acts of Congress.)”
In speaking of paying the cost of construction of the system we said:
“The only question is how this will be apportioned amongst the various tracts in the district. The entire matter is left to reassessment every year. It is a matter of the internal affairs of the district and cannot be settled with finality at the trial upon the petition to confirm or approve the contract.”
The whole trouble is a misunderstanding of the meaning of “schedule of assessments” and “manifestly disproportionate” as used in G. S. 1951 Supp., 42-721. For a proper understanding of these terms we must turn to the contract, this action is brought to •confirm. Section 16a of that contract provides as follows:
“There shall first be a determination of the average per acre chargé required to retire the local cost of constructing the distribution system, which shall be computed by dividing the cost estimate of constructing the distribution system of not to exceed $3,500,000.00 by the acreage of irrigable lands within the district.”
That section provides the first step in determining the share each landowner shall pay toward the construction cost of the system, shall be to divide the cost of the construction by the number of irrigable acres in the district. Then as to each particular tract, this result is multiplied by the number of acres. Such is the schedule of assessments which was attached to the petition. The term “manifestly disproportionate” means whether this formula was correctly applied as to each particular tract.
The next paragraph of the contract provides for a computation of a proper variation in such average charge by land classes to be weighed by consideration of soils, topography and other relevant conditions. The contract then contains the following paragraph, 16c:
“The total construction charge for distribution system to be paid by any irrigation block shall be computed by adding the sum of the products of the acres in each land class in the block multiplied by the weighted payment per acre determined in Step ‘b’ foregoing.”
Next we have the development period of five years and the provision that the first construction charge obligation shall accrue in the calendar year immediately following the last year of the develop ment period, that is, there can be no finality as to any assessment until five years after the system is finished. This provision must be considered in connection with G. S. 1949, 42-715, which provides for a uniform assessment of all lands in the district in March of each year and G. S. 1949, 42-717, which provides for an equalization of these assessments in May of each year.
It is true G. S. Supp. 1951, 42-721, provides for the approval of the “schedule of assessments” and that:
“The assessments as determined by the district court shall be final and a conclusive determination that all such proposed assessments have been made in proportion to the benefits conferred upon such properties by reason of the improvements to be constructed, and such assessments shall constitute a perpetual lien on the properties so assessed, until paid.”
This provision, however, must give way to the provisions of the federal statute, the contract and other provisions of the state statute. It is our duty to so construe a statute as to accomplish the obvious will of the legislature. It follows that the order of the trial court of November 19, 1953, in answer to defendants’ motion to require the district to make its petition more definite and certain, directing the district to file with the clerk of the district court such plans, maps and specifications as it has on which was based its proposed schedule of assessments attached to the petition was erroneous and should not have been made. All that took place in this action subsequent to that order is a nullity except the portion of the judgment that approved the contract. This so-called action is actually a special proceeding. See G. S. 1949, 60-105.
The trial court is ordered to proceed to determine whether the formula provided for in paragraph 16a of the contract as to any tract of land in the district, which has been challenged in a pleading filed in due time is manifestly disproportionate and if not, to approve the'schedule of proposed assessments. This inquiry should be limited to a consideration of whether the formula heretofore discussed in this opinion was followed.
This contract was executed on April 20, 1951. Litigation has prevented the construction of this system for three years. The case is becoming a public nuisance. It is hoped that this chapter will put an end to it.
The judgment of the trial court approving the contract is affirmed, the judgment approving the withdrawal of the request for a final determination of the schedule of assessments is reversed, in accordance with the views stated in this opinion. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action to vacate, cancel and set aside two quitclaim deeds executed by plaintiff in which the defendants Myrtle Robertson and her husband Paul Robertson appeared as grantees, and for judgment directing defendants to make, execute and deliver to plaintiff a sufficient conveyance divesting defendants of any right, title or interest in the real estate described therein and in the event of failure to do so, the judgment and decree of the court shall stand as such conveyance. The defendants filed separate demurrers to plaintiff’s second amended petition. These were overruled, and they have filed separate appeals. These appeals raised the same legal questions and may be disposed of in one opinion.
In view of the questions presented for our determination plaintiff’s petition filed August 26, 1953, and amendments thereto, may be summarized briefly as follows: It is alleged in the petition that the parties to this action all reside in Independence, Montgomery county, Kansas, and their respective addresses are given; that when the defendant Myrtle Robertson was a child eight years of age plaintiff and her husband, William P. Kerr, took Myrtle into their home and raised, educated and provided for her as though she were their own child; that plaintiff and her husband at all times entertained an affection toward Myrtle to the same extent as if she were their own child and that Myrtle appeared always to have the same affection for plaintiff and her husband as though she were their own child; that plaintiff’s husband died June 21, 1949; that prior to his death he had to a very great extent assumed the responsibility of looking after plaintiff’s property. It appears from the petition that plaintiff was the owner of a substantial amount of real property including farm land and property in the city of Independence. That soon after the death of her husband Myrtle Robertson began urging plaintiff to place her property in the name of the defendants Myrtle Robertson and her husband Paul Robertson for the convenience of managing and looking after plaintiff’s property. The matter was discussed frequently; plaintiff hesitated to do so but Myrtle Robertson represented that she desired to take no advantage of plaintiff but thought that looking after the property was too much for plaintiff to undertake to do and that if the property was deeded to her she would reconvey it to plaintiff at any time plaintiff wanted it. At several of these conversations defendant Paul Robertson was present and joined in the statement that if it was transferred to defendants it would be reconveyed, and said, “. . . any time she wanted it back they would turn it back; that it was hers and I want her to have whatever she wants.” The three parties finally consulted Mr. Kirke C. Veeder, a reputable attorney, where the matter was fully discussed. By that time plaintiff was 75 years of age. As a result of the discussion an agreement was reached by the parties as herein stated and on August 7, 1951, plaintiff executed a quitclaim deed naming the defendants as grantees as joint tenants with the right of survivor-ship describing real property said to be of the value of about $50,000 and expressly reserving for the plaintiff the use and possession of the property and all rents and income therefrom during the grantor’s entire life. This deed was filed of record August 7, 1951. Under similar circumstances and agreements plaintiff exe cuted a similar deed to defendants on October 23, 1951, covering other real property consisting of farm land and real estate in the city of Independence, Montgomery county, of the value in excess of $50,000. This deed was filed of record on October 27, 1951.
It is further alleged that defendants did take over the management of the property described in the deeds and that everything went along as agreed for several months when the defendants began to show indifference toward plaintiff which attitude increased and became so arbitrary, dictatorial and unpleasant that plaintiff made an oral request to the defendant Myrtle Robertson that the property be reconveyed to her. Plaintiff does not recall the exact date of this request. About April 1,1953, Mr. Veeder, at the request of plaintiff, took the matter up with defendants by telephone and told them that plaintiff desired to have the property reconveyed and requested them to come to his office to discuss the matter; that defendants failed to make a reconveyance through the efforts of Mr. Veeder and plaintiff employed her present attorney, an independent counsel, to make a formal demand for the reconveyance of the property; that formal demand was made in a letter written by plaintiff’s present attorney addressed to Mrs. Paul Robertson and dated August 18, 1953, which enclosed a quitclaim deed covering all the property in the two quitclaim deeds executed by plaintiff asking that both of the defendants execute the deed and return it to him by August 24, 1953, or a suit to set aside the deeds executed by plaintiff would be filed. This letter was sent by registered mail with return receipt requested. Defendants paid no attention to the letter and an action was promptly brought. Defendants filed several motions to strike, to separately state and number and to have the petition made more definite and certain. Some of these were sustained and others overruled with the result that plaintiff filed her second amended petition in two counts; defendants separately demurred to each of the counts; these demurrers were overruled, and the appeals followed.
In this court the appellants state as the sole question involved the following:
“In an action for the cancellation of a deed based on alleged fraudulent misrepresentations of the defendants must plaintiff’s petition, in order to state a cause of action, specifically allege that the alleged fraud was not discovered by plaintiff until within two years prior to the commencement of the action?”
It is well settled that the statute of limitations is an affirmative defense and normally it must be pleaded by defendant. See, Mag nolia Petroleum Co. v. Moyle, 162 Kan. 133, 175 P. 2d 133, and cases there cited.
It may be raised by demurrer to the petition if the petition clearly shows that the action is barred. See, Kansas State Bank v. Shaible, 118 Kan. 73, 234 Pac. 40, and cases there cited.
The demurrer should be overruled if the petition does not clearly show the action to be barred. Citing, Christie v. Scott, 77 Kan. 257, 94 Pac. 214.
Construing this petition to be predicated upon fraudulent promises made by defendants prior to the execution of the deeds to the effect that they would reconvey the property described therein at any time the grantor desired to have it reconveyed to her it is clear from the facts alleged in the petition that the plaintiff did not discover that representations made before the deeds were executed were fraudulent until sometime early in the year of 1953 when she first asked Myrtle Robertson to reconvey and the parties talked it over with Mr. Veeder in April of 1953. The fact the letter written to defendant by plaintiff’s counsel on August 18, 1953, in which he enclosed a deed for the execution of defendants and which they declined to execute might be regarded as the time when defendants made an express refusal to comply with their promise.
While there are some cases in which this court has said the specific time when the fraud was discovered should have been stated in the petition, the real rule, however, is that the facts should be stated in the petition sufficient to show that the fraud was discovered within two years. Certainly we think that rule is applicable here.
We have examined all of the authorities cited by counsel but think it unnecessary to restate them here and analyze each of them. Certainly it is clear in this case that defendants’ refusal to convey as originally agreed upon was not discovered until within two years of the filing of the petition in this case. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an action by an automobile passenger to recover damages for personal injuries sustained by her as the result of a collision between two automobiles at the intersection of two county roads. The appeal is from an order sustaining a demurrer to the plaintiff’s evidence and a judgment for costs.
No questions are raised respecting the pleadings and all that need be said regarding them is that the petition charges the proximate cause of the injuries sustained by the plaintiff in the collision at the intersection was the negligence of the defendant Alvin Bacon, a minor, in driving his automobile upon the highway and into such intersection, and that the answer, denied by allegations of a reply, states such injuries resulted from plaintiff’s own negligence and the joint negligence of her husband who was driving the automobile in which she was riding. However, in leaving the pleadings it should perhaps be stated they join issue on the question, with which we are not concerned on appellate review and to which we will make no further reference, whether the minor defendant was driving the vehicle under the direction, control and in the furtherance of the joint interest of his parents, who are joined as defendants in the action.
With issues as related the cause came on for trial by a jury. At the conclusion of plaintiff’s evidence the trial court sustained defendants’ demurrer, solely on the ground her evidence disclosed she was guilty of contributory negligence as a matter of law which precluded her right to recover in the action. Thereafter it dismissed the jury and entered judgment against her for costs. This appeal follows.
The parties concede the sole appellate issue involved is whether the trial court erred in sustaining appellees’ demurrer to the appellant’s evidence for the reason heretofore mentioned. On that account this opinion will be limited to consideration of factual matters essential to the disposition of such issue which, it should be kept in mind, must be disposed of in the light of the well established rule (See Briggs v. Burk, 174 Kan. 440, 442, 257 P. 2d 164; Siegrist v. Wheeler, 175 Kan. 11, 259 P. 2d 223; Bishop v. Huffman, 175 Kan. 270, 272, 262 P. 2d 948; Spencer v. Supernois, 176 Kan. 135, 268 P. 2d 946; State, ex rel., v. Miller, 176 Kan. 175, 268 P. 2d 964; and other decisions to the same effect listed in West’s Kansas Digest, Appeal & Error, § 927 [5], Trial, § 156 [2] [3]; Hatcher’s Kansas Digest, [Rev. Ed.], Appeal & Error, § 488, Trial, §§ 149 to 151, Incl.) that in ruling on a demurrer to the evidence an appellate court does not weigh or compare contradictory testimony but must accept all evidence as true, give it the benefit of all inferences that may properly be drawn therefrom, and consider only such portions thereof as are favorable to the party adducing it.
Turning to the record it can be said, the general factual picture essential to a disposition of the appellate issue, without attempting to relate all details of the testimony, may be stated substantially in the form of the statement of facts on which appellees rely to sustain their position the ruling on the demurrer was proper. However, it should be stated, that upon reviewing the record in the manner above indicated, we deem it necessary to supplement such statement in certain particulars by reference to evidence which, for purposes of determining the propriety of the ruling on a demurrer, must be accepted as true.
On a bright sunshiny spring morning in June 1952 appellant and her husband were traveling east out of Topeka on a east-west county road in an automobile. Appellant was riding in the front seat, on the right hand side of the vehicle, and her husband was driving. They proceeded along such highway at a moderate rate of speed for a few miles until they approached a north-south gravel county road, intersecting with the one on which they were traveling. At a point some three hundred feet west of the intersection there was nothing to prevent them from seeing cars approaching from the south for at least a quarter of a mile, or for that matter in any direction. When they were about three car lengths west of the intersection an automobile crossed it from the north, raising a cloud of dust. They slowed down but continued on to the west edge thereof without stopping, although their speed was such they could have stopped almost immediately. Prior to entering the intersection the appellant, as well as her husband, looked in each direction. The dust raised by the south bound car had cleared so that they could see to the north and to the east across the intersection where they observed no cars were approaching from that direction. The dust to the south of the intersection had cleared to the extent cars coming from the south would have been discernible for a distance of two car lengths south of the intersection. After each of such parties had made the foregoing observation appellant’s husband slowly entered the intersection and started across without any protest or remonstrance on her part. After reaching what he considered to be the center line of the intersection, or just to the east of such line, he looked and saw no car approaching from the south. Thereupon he proceeded on across the intersection. The next thing he saw was the Bacon car, which he stated was traveling from fifty to sixty miles per hour, and which he described as looking like a flash because it came so quick, coming from the south. A fraction of a second later such automobile collided with his car, the collision occurring six or seven feet east of the center line of the twenty-six foot north and south road in the southeast quadrant of the intersection of the two highways, and appellant sustained the injuries described in her petition.
That a plaintiff’s negligence, or his contributory negligence, bars his recovery in an action for damages sustained in an automobile collision and requires the sustaining of a demurrer to his evidence as a matter of law where either negligence or contributory negligence clearly appears from the evidence introduced by him, regardless whether he is the driver of or a guest in one of the automobiles involved in the accident, cannot be questioned. (See Most v. Holthaus, 170 Kan. 510, 227 P. 2d 144, and authorities there cited.) Even so, it must be remembered the universal rule is he cannot be held to be guilty of such negligence as a matter of law or — as was held in the case at bar — a demurrer sustained to his evidence on that premise, if the evidence of record, viewed in the light most favorable to his cause, is of such character that reasonable minds in the exercise of fair and impartial judgment might reach different conclusions respecting that question. In that event, it is to be noted, all of our decisions hold a demurrer to his evidence should be overruled and such issue submitted to a jury for decision. See, e. g., In re Estate of Modlin, 172 Kan. 428, 434, 241 P. 2d 692; Cain v. Steely, 173 Kan. 866, 252 P. 2d 909; Briggs v. Burke, 450, supra; Siegrist v. Wheeler, supra. For numerous other decisions see Hatcher’s Kansas Digest (Rev. Ed.), Negligence, §§73, 75; West’s Kansas Digest, Negligence, § 136 (9) (10).
To the foregoing principles of law another, equally well established, which must be given consideration in determining whether the evidence discloses appellant was guilty of contributory negligence precluding her recovery as a matter of law, must be added. It is that the operators of a motor vehicle, as well as the passengers riding therein, may assume that others using the streets, roads and highways of the state will observe the law and are not guilty of either negligence or contributory negligence in acting upon such assumption unless and until they have knowledge to the contrary. Two of our latest decisions wherein the rule is stated, discussed and applied, are Bishop v. Huffman, 175 Kan. 270, 272, 262 P. 2d 948; and Siegrist v. Wheeler, supra. Numerous other cases may be found upon resort to Hatcher’s Kansas Digest, (Rev. Ed.), Automobiles, § 30; and West’s Kansas Digest, Automobiles, § 206. ■
At this point we pause to note the rule just mentioned is of particular importance here by reason of the confronting facts and circumstances. Our uniform act regulating traffic on the highways prescribes that violations thereof are misdemeanors (G. S. 1949, 8-5,125), provides that no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing (G. S. 1949, 8-532), and requires that the driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway (G. S. 1949, 8-550 [a]).
The appellant’s evidence, which we repeat must be accepted as true for purposes of ruling on the demurrer, discloses that the car in which she was riding not only entered the intersection first but was more than half way across it before it was entered by the Bacon automobile. It also reveals that such automobile was being driven in a cloud of dust and emerged therefrom just prior to entering the intersection at a speed greater than was reasonable and proper under the conditions then existing. Moreover, it cannot be denied that appellant’s testimony, when given the benefit of the inferences to which it is entitled under the rule, must be interpreted as stating that she first saw the Bacon car, after her husband had driven into the intersection, when it emerged from the cloud of dust and entered such intersection at such a rate of speed it could not be stopped before hitting tire automobile in which she was riding.
No useful purpose would be served by again spelling out or repeating the evidence of record. It suffices to say that when all such evidence is reviewed and critically examined in the light of principles of law, to which reference has been heretofore made, we are impelled to hold, that for purposes of ruling on the demurrer, it discloses such probative facts and circumstances that reasonable men in the exercise of fair and impartial judgment might reach different conclusions as to whether appellant was guilty of contributory negligence precluding her recovery as a matter of law. This conclusion, as we have heretofore indicated, means that decision of that question should have been submitted to the jury for its determination.
We are told, and since it has not been denied assume, that in the court below the appellees placed great weight on our decisions of Robinson v. Short, 148 Kan. 134, 79 P. 2d 903; and Goodman v. Wisby, 152 Kan. 341, 103 P. 2d 804. We have no quarrel with the rule announced in those decisions, which are clearly distinguishable. They hold that it is negligence as a matter of law for a motorist to operate his automobile on a highway at such speed that it could not be stopped within the distance objects could be seen ahead of it and hence are of no value as controlling precedents under the facts and circumstances here involved.
Based on what has been heretofore stated and held the ruling on the demurrer to the evidence is reversed, the judgment thereafter rendered is set aside and the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
Marshall, J.:
The action is one in which the owner of a rented dwelling house seeks to recover damages for the injury to it caused by an explosion of gas furnished by the defendant. Judgment was rendered in favor of the defendant on its demurrer to the evidence of the plaintiff, who appeals.
The negligence alleged by the plaintiff, as set out in the petition, was as follows:
“Plaintiff further states, that on said 12th day of July, 1929, and for some time previous, unknown to this plaintiff, the gas meter which had been installed in said premises by the defendant on the-day of April, 1929, was out of repair, and improperly constructed to such an extent that it leaked gas, or was so improperly and negligently connected with the pipes in said building that it leaked gas; that said defendant knew or ought to have known that said gas meter was in an improper condition, and knew or ought to have known that said gas meter or its connections were leaking gas, 'and that said defendant failed and neglected to repair the same, or make proper inspection of said meter and its connections, and said defendant negligently, carelessly and without regard to the rights of others, permitted said gas meter and connections to remain in such faulty and improper condition as to allow gas to escape in the cellar as herein set forth.”
There was evidence which tended to prove that plaintiff owned the dwelling house; that it was rented; that the tenants on several occasions noticed a disagreeable odor in the cellar of the house and called the plaintiff’s attention to it; that he also noticed it; that the attention of the defendant was never called to the fact that gas was escaping in the cellar of the house; that the tenant went into the basement to look after it during an approaching flood, lit a match, and the explosion immediately followed which caused the damage to the house for which the action is prosecuted; that a fire occurred which was practically all at the door where the meter was situated; that after the explosion the plaintiff caused the pipes in the house to be tested for leaks and a small one was found which the evidence tended to show was not sufficient to have permitted enough gas to escape to have caused the explosion. The man who repaired the house after the explosion testified:
“The pipe that had been connected from above had been thrown at right angles, evidently by the explosion; the lower connection which came out through the concrete wall showed the meter had been just removed; it was freshly taken out.”
The plaintiff testified:
“The break occurred at the top of the meter where the meter screws on to the service pipe.”
Still another witness testified:
“The pipe leading from'the meter to the service in the house was broken from the meter, and part of the meter was still clinging to this pipe. I did not notice any broken piece of pipe, but the meter was broken; part of the easting was clinging to the pipe.”
A' demurrer to the evidence was sustained “upon the ground that the plaintiff failed to produce evidence to prove the allegation of negligence as set out in his petition.”
The plaintiff relies on circumstantial evidence and the process of elimination to establish negligence on the part of the defendant. The plaintiff argues that from the circumstances surrounding the explosion, from the conditions which existed immediately after it, and from the fact that the pipes in the house, after the explosion, did not have a sufficient leak in them to allow enough gas to escape to cause the explosion, the conclusion must be reached that the explosion was caused by gas escaping from tbfe meter.
In Hashman v. Gas Co., 83 Kan. 328, 331, 111 Pac. 468, this court said:
“It is contended that if defects or leaks existed there was no proof that ap pellant had notice of them. Natural gas, as all know, is inflammable and explosive in a high degree — a very dangerous agency — and those who transport it are held to the exercise of great care; they are required to lay and maintain pipes that are safe and secure for transporting gas, and carefully to overlook and inspect the pipes in order to keep them in a safe condition, and to detect and repair any leaks or defects in them. . . . The taking of reasonable precautions for the detection of leaks would have acquainted defendant with the defects in ample time to have repaired them. The jury had a right-to infer that the gas company either knew or should have known of the leaks and defects before the explosion.”
In Helm v. Light & Heat Co., 86 W. Va. 628, 634, the court declared that—
“As the meter and its connections were furnished, installed and maintained by the defendant, and the plaintiffs had no right to molest or interfere with it, we are of the opinion that the duties of proper installation, maintenance and inspection of it and the selection of safe and suitable fittings for connection thereof with the service pipes rested upon the defendant. Under the contract, it was the property of the defendant and molestation thereof by the consumer was forbidden.”
In 28 C. J. 592 and 593 we find the following language:
“The foregoing rule requires not only a careful laying of sound pipes, but also requires an efficient system of inspection, oversight, and superintendence. A gas company must use due and reasonable care in the inspection of its pipes, to insure reasonable promptness in the discovery of leaks that may occur from defects in or deterioration of pipes and valves, from careless or wrongful meddling with its works on the part of others, or from any other cause within the circumspection of men of ordinary skill in the business. But it is not required that the company shall keep up a constant inspection all along its lines, without reference to the existence or nonexistence of probable cause for the occurrence of leaks or escape of gas. ... If leaks or defects in the company’s pipes occur because of faulty construction or otherwise through the company’s fault, it is liable without notice for any resulting injury to person or property.”
To the same effect is a note in 25 A. L. R. 267, where the writer cites cases from a number of states to support the rule declared. See, also, 12 R. C. L. 907.
The law declaring the obligation resting on those who furnish electricity for use in cities bears some analogy to the law governing those who furnish gas for use in cities. Both are dangerous agencies. Those who deal in electricity are compelled to use the highest degree of care. (Hinze v. City of Iola, 92 Kan. 779, 142 Pac. 947; Snyder v. Light Co., 98 Kan. 157, 157 Pac. 442; Lewis v. Street Railway Co., 101 Kan. 673, 168 Pac. 856; Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312.)
If the defendant had inspected its meters and pipes the leakage of gas therefrom, if it was from either of them, would have been discovered and could have been remedied.
There was evidence from which the jury could have concluded that the explosion was caused by gas escaping from the meter and that the defendant was negligent in permitting the meter to get in such a condition that it would permit gas to escape. The evidence should have been submitted to the jury. It was error to sustain the demurrer of the defendant to the evidence of the plaintiff.
The judgment is reversed and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in equity to set aside.deeds alleged to have been executed in fraud of plaintiff and to subject the property described therein to the obligations contained in, and the payments provided by, a contract between husband and wife, later approved and embodied in a decree for divorce. The trial court made findings of fact and rendered judgment for plaintiff. Defendants have appealed.
The findings of fact made by the trial court, amplified by the provisions of the contract between the parties and the decree in the divorce case, in so far as they are pertinent, may be summarized as follows: The plaintiff and Guy J. Russell were husband and wife. They had lived together about twenty-eight years and were the parents of several grown children and one daughter about seven years of age. In February, 1926, because of domestic difficulties which made it imperative, they entered into a written agreement to live separate and apart from each other in the future and to settle all property rights between them, including the custody of the minor daughter and payments for her support. By the terms of this agreement the plaintiff was paid $1,000 in cash, and several pieces of real property were set over to her, to be free and clear of all liens and encumbrance, including the taxes of 1925. In the real property set over to her was a tract described as lots 13 and 14, block 10, Pacific Place. Other pieces of real property were retained by the husband. Among these was one described as lots 5 and 6, block 11, Pacific Place. The agreement recited that both parties knew that there was a mortgage of $4,000 which had been signed .by both of them and which covered these two properties (lots 13 and 14, block 10, and lots 5 and 6, block 11, Pacific Place), and Guy J. Russell agreed on his part to assume and pay the mortgage debt when it became due, or to have the whole mortgage transferred to lots -5 and 6, block 11, or other property, or, on his failure to do so, that he would convey the lots 5 and 6, block 11, to plaintiff in payment, and would pay all accrued and accruing interest on the $4,000 mortgage. The agreement further recited that Guy J. Russell represents to plaintiff that a note -held by his brother, which the parties had previously executed, had been paid and discharged. The agreement further provided that the plaintiff should have the custody of their minor daughter, and that Guy J. Russell should pay $25 per month for her maintenance and support, increasing the sum from time to time as the child advanced in school to a maximum of $50 per month, until she graduated from high school, or its equivalent.
In May, 1926, a divorce was granted to plaintiff from Guy J. Russell, in which the agreement made between the parties in February was approved by the court and in which the court adjudged that the rights of the parties to the matters in controversy became fixed by their agreement. Guy J. Russell paid the $25 per month to plaintiff for the support of their minor daughter up to and including the month of January, 1927, when he ceased to make such payments. At the time of the trial of this action he was in default of such payments in the sum of $580.96. The court found that Guy J. Russell neglected and refused to convey to plaintiff lots 13 and 14 in block 10, Pacific Place, free and clear of the mortgage lien thereon, and had failed to pay the $4,000 mortgage thereon, or to have the same transferred to other property, or to convey to plaintiff lots 5 and 6, block 11, Pacific Place, without expense to her, when the mortgage debt became due, but that before that note became due he had executed, without consideration, conveyances to all real property standing in his name to his brother, Frank D. Russell, with the intention of placing his property beyond the reach of plaintiff under the decree of divorce. The court found the deeds were fraudulent .as to the plaintiff; that plaintiff was entitled to be released from personal liability on the $4,000 note, and was entitled to have the lots 13 and 14, block 10, Pacific Place, released from the mortgage securing the note; that plaintiff was entitled to recover from defendant, Guy J. Russell, $580.96, and to receive from him further payments for the support of the child in accordance with the decree in the divorce case. The court directed the sale of enough of the property described in the deeds from Guy J. Russell to his brother Frank to pay the $4,000 secured by the mortgage on lots 13 and 14, block 10, Pacific Place, and other property, and for the sum due plaintiff for the support of the child. We take it from the record that the sum adjudged due for the support of the child was paid into court by the defendant Guy J. Russell, with the reservation of his right to appeal, but no point is made of that.
Appellants argue that the burden rests upon the plaintiff to prove that the transactions complained of were fraudulent. This may be conceded to be true. (Grisier v. Bank, 102 Kan. 7, 169 Pac. 215.) And also argue that this burden did not shift because of the relationship of the grantor and the grantee, citing Dillon v. Bryant, 104 Kan. 380, 179 Pac. 318, and allied cases. While, generally speaking, this is trae, the relation of the parties may be such that the court will carefully scrutinize the transaction. In Pfeifer v. Basgall, 112 Kan. 269, 211 Pac. 134, the rule is thus stated:
“A fraudulent transaction must in all cases be established by a preponderance of the evidence; the fact of relationship is merely an item of evidence, not sufficient in itself, to be weighed in with the other evidence to make up the requisite preponderance on which a verdict and judgment may be founded.” (p. 272.)
Appellants argue that the evidence is not sufficient to meet the requirements of the rule just stated. The evidence disclosed that the grantee, Frank D. Russell, did not reside at Kansas City; that after the conveyances the grantor looked after, cared for and collected the rents of the property the same as he had done before. The answers in this case pleaded the consideration to be past in debtedness, but in the written agreement between plaintiff and her husband he had represented that the only indebtedness to his brother had been paid. There is no showing in this case that there had been any new indebtedness. The five deeds involved in this action purported to convey to Frank D. Russell all of the property owned by Guy J. Russell and known to the plaintiff at the time of their separation and divorce and one additional piece of property. It was argued this is not a sufficient showing that Guy J. Russell did not own other property. There is no contention on behalf .of the defendants that he did own other property, and the plaintiff was not put to the burden of examining the records in each county in this state, and in every state in the union, to establish definitely that he owned no other property. The finding of the court that he had conveyed all the property he owned is the natural and reasonable one from the evidence. It is argued that it was not shown that Guy J. Russell did not have property other than the real property in controversy by which he could pay the mortgage debt of $4,000 above mentioned. It is clear from the evidence that he had not paid it, which indicates either his inability to pay, or his determination not to pay. There was-further evidence that for a few months after the divorce he kept his bank account in the name of his brother, later that he kept it in the name of his second wife, whom he married after plaintiff’s divorce from him, and then later in the name of his brother; that he made the deposits and checked on those accounts as though they were his own, and that the account, never very large, was sometimes overdrawn. But appellants argue that it is not shown that this was the only bank account he had, but having shown this the burden was not on the plaintiff to examine the accounts in all other banks in which it was possible he might have had an account. The only natural conclusion from the evidence was that which the court reached, that Guy J. Russell did not have other money or property with which he could satisfy this $4,000 obligation. With respect to the evidence on these matters it should be noted that defendants offered no evidence, and although both of them were present in court at the trial, neither of them testified. From this the court was justified in concluding that they had no testimony or other evidence to offer that would be beneficial to them or tend to weaken the evidence offered on behalf of plaintiff on the points in controversy.
Appellants argue that by the' agreement between the- parties and the decree in the divorce case there was no specific lien made upon the real property retained by Guy J. Russell, and that therefore he could convey the property and pass the title free from his contract obligations to the plaintiff. This is hardly a fair interpretation of the decree. The decree bound Guy J. Russell either to pay the $4,000 mortgage debt, or to transfer all of it to lots 5 and 6, block 10, which conditionally impressed a lien upon that property, or to other property which he owned, which in a sense impressed it upon all the other property which he owned. We understand appellants are not seriously contending that the court improperly ruled with respect to the payments for the support of the child, for they have tendered into court the amount found due for this without prejudice to their right to appeal from the other portions of the judgment.
From the record as a whole it appears that the trial court correctly interpreted the conveyances from Guy J. Russell to his brother as being a fraudulent scheme by which the grantor endeavored to relieve himself from carrying out the provisions of the decree in the divorce case. It would be strange indeed- if the power of a court of equity were so limited that it could not grant relief in such a case.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages which plaintiff sustained because defendants sold to him hogs which were infected with cholera. Plaintiff recovered, and defendants appeal.
Defendants were dealers in hogs at Mayetta. Ernest Gault was a hog raiser living on a farm near Denison. There was hog cholera within four or five miles of his farm, and he discovered two of his own herd were sick. Thereupon, ignoring dealers five miles from his farm, he sold twenty-two head to defendants at Mayetta, ten and a half miles from his farm. The remainder of his herd, except two animals, died of cholera. The two sick hogs had been with those sold to defendants. Gault did not call a veterinarian for the two hogs, but knocked them in the head. When the twenty-two head were delivered to defendants, Gault and defendants talked about sick hogs in the neighborhood, Gault told defendants there were sick hogs north of his place, and Gault testified as follows:
“I wanted to sell them, and spoke about these hogs, just two were off feed, but I thought they were all right.”
The' truck .driver who hauled the hogs to Mayetta for Gault testified that when the hogs were delivered defendants were present, and he heard Gault say he had some hogs which were “off feed.”
The day after Gault delivered the twenty-two head, defendant sold them to plaintiff. The next day one hog was sick, and the next day all of them were sick. Plaintiff called a veterinarian, and took two of the hogs to Topeka to be examined by a veterinarian of the state live-stock commission. All of the twenty-two head died of cholera. When plaintiff purchased the twenty-two head he had about 120 hogs on his farm. About twenty-five of them died of cholera. Defendants purchased thirty-six head, and shipped twenty-two more to Kansas City for plaintiff. In due time plaintiff disinfected his premises.
The court instructed the jury that if defendants knew the hogs sold to plaintiff were infected with cholera, or had knowledge of facts sufficient to put a prudent man on inquiry whereby he would learn of the infection, defendants would be liable for all actual damages resulting from the sale. The jury found for plaintiff, and so established the fact that defendants knew, or should have known, the hogs were infected.
Plaintiff pleaded and proved the following items of damages:
Price of twenty-two head of hogs...................... $168.00
Value of other hogs which died........................ 333.50
Loss on hogs sold at a discount........................ 306.35
Services of veterinarian................................ 27.00
Expenses of disinfection............................... 125.00
Total.............................................. $959.85
The verdict of the jury was for $500.
The measure of plaintiff’s damages for loss of the twenty-two head was not the difference between the value of hogs and the value of hogs about to die of cholera. Plaintiff purchased hogs, and not incipient carcasses, and as against defendants, the price paid was evidence of market value. Anybody in defendants’ situation could foresee that, if any of the hogs became sick, the buyer would likely call a veterinarian, and if the hogs had cholera, defendants were bound to know the law required the buyer to disinfect his premises. The result is, plaintiff was entitled to recover the three items of damages just discussed, amounting to $320.
The court instructed the jury plaintiff could not recover damages which he might reasonably have prevented by selling the infected hogs on the market if he had opportunity to do so after learning the purchased hogs were infected. Plaintiff testified as follows:
“Q. None of your hogs got sick for two weeks? A. Yes, sir; but I did not sell any of my hogs until they got sick.
“Q. Why didn’t you sell them when you learned these other hogs were sick? A. When the Gault hogs were sick?
“Q. Why didn’t you sell them? A. Because I am a poor manager; I don’t know what else.”
On the strength of this testimony alone, defendants say, the jury disregarded the court’s instruction.
The jury were authorized to interpret plaintiff’s testimony in the light of his demeanor when testifying, and the evidence in the case. He may have meant merely to call sharp attention to the expertness of Gault and of defendants in dealing with cholera hogs. However that may be, there is no indication the jury disregarded the instruction.
Plaintiff proved losses for dead hogs, and discount in price for hogs sold, amounting to substantially $640. If the jury allowed the items amounting to $320, they allowed only $180 of the $640._ Therefore, the jury may have allowed plaintiff nothing for dead hogs, and only part of his claim for loss on hogs sold. Plaintiff could not be charged with delay while he was investigating cause of sickness of the purchased hogs. The time consumed in making the investigation is not shown. His situation was such that he saved some of his own herd. His primary market was Colhouer & Coleman, Mayetta, and considering all the circumstances, the reasonableness of plaintiff’s conduct was a matter for the jury to determine.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages to an interstate shipment of butter. The jury answered special questions and returned a verdict for plaintiff. Defendant has appealed.
Plaintiff manufactures butter at its plant in Kansas City, and on August 13, 1926, delivered to defendant, in good order at Kansas City, 100 boxes of creamery butter of the weight of 3,500 pounds and 10 tubs of creamery butter of the weight of 350 pounds, for transportation and delivery to the Central Provision Company, Wilkes-Barre, Pa. The damage claimed was that upon arrival at destination the butter was covered with green mold and was greatly deteriorated in value. In this case the amount of damages is not questioned if plaintiff is entitled to recovery. The negligence alleged by plaintiff was that the shipment had not received proper refrigeration while in transit. The defense, in addition to a general denial, was that if the butter at the time of its arrival at destination was covered by green mold, as alleged by plaintiff, such condition was not the fault of defendant, or of its connecting carriers, but resulted solely in consequence of defect or vice in the shipment and the inherent nature thereof, in that the packages of butter already contained the germ which causes mold when loaded into the refrigerator car of defendant at Kansas City, and that no refrigeration which was practical would, or could, prevent the butter from becoming covered with spots of green mold. In .answer to special questions the juiy found that the refrigerator car in which the butter was loaded at Kansas City had previously been iced to capacity, and that the ice bunker of the car contained 5,500 pounds of ice when it reached Chicago; when the butter was unloaded at Chicago it was transported promptly by wagon to a cooler of the Wabash railroad, where it was kept from twenty to twenty-four hours in a temperature around 45 degrees, and was then loaded into a precooled refrigerator car containing plenty of ice, which car was re-iced at Detroit, Mich., and at Manchester, N. Y., and reached Wilkes-Barre with its ice bunkers three-fourths full. The jury also found that no other shipment of butter ever made by plaintiff became moldy; that the butter shipped in this case was wrapped in wrappers and packed in cartons furnished by the Central Provision Company, and that such wrappers and cartons had not been in storage at plaintiff’s plant for a considerable length of time before being used, and that the moldy condition of the butter when it arrived at destination was not due to a vice in the shipment and the inherent nature thereof, in consequence of butter coming in contact with the mold germs present in the wrappers. The jury was asked, if it found a verdict for plaintiff, to state what acts of negligence any of the carriers handling the shipment were guilty of, and answered:
“From evidence introduced butter did not receive proper refrigeration from the time Santa Fe received it at the dock until it was put in refrigerator car.”
Appellant contends that the negligence found by the jury was not within the issues, and says that, having been charged with a lack of proper refrigeration in transit, defendant had taken that to mean after it had been placed in the refrigerator car. There is no legal reason why defendant should have taken that view of the allegation of the petition. In General Oil Co. v. Crain, 209 U. S. 211, 228, the court said:
“The beginning and the ending of the transit which constitutes interstate commerce are easy to mark. The first is defined in Coe v. Errol, 116 U. S. 517, to be the point of time that an article is committed to a carrier for transportation to the state of its destination, . . .”
Plaintiff’s allegation of negligence was that there had been a lack of proper refrigeration at some time after the shipment had been delivered to the carrier ,and before it reached its destination. The shipment was as much in transit after defendant had taken possession of it, and before it was placed in the refrigerator car, as it was thereafter.
Appellant contends that it is shown that the-cause of'the deterioration of the butter was spores, which were in contact with the butter at the time it was delivered to defendant for shipment. The question whether the butter deteriorated because of the inherent nature or vice of the shipment was thoroughly tried out, and the jury’s finding on that point is against the contention of appellant. There was evidence that the spores which caused- the mold are present in the atmosphere; that the mold forms very slowly under proper refrigeration conditions, but in a temperature of 80 or 90 degrees would grow very rapidly. When the shipment reached Chicago its appearance indicated that the butter had been in a temperature of 80 to 90 degrees, for the butter in the tubs had apparently melted, so much so that the outside of the tubs was stained, and had again solidified. Since this condition could not have been brought about while the butter was in the refrigerator cars — iced, as the evidence disclosed and the jury found they were — the jury might reasonably infer that the butter had been subjected to a temperature of that kind after it was received by the.carrier and before it was placed in the refrigerator car.
On the hearing of the motion for a new trial, defendant, filed the affidavit of employees who handled the shipment at the place it was received. These affidavits were to the effect that the custom was to place the butter in the refrigerator cars at once, but the affiants were unable to state specifically how this shipment was handled. Appellant contends that a new trial should have been granted because of this showing. There was no showing of a good reason why this evidence could not have been produced at the trial, nor is it at all clear that it would have had a tendency to change the result. The fact that the butter had been heated at some time before it reached Chicago seems to have been clearly' established. It was noted there on the-freight bills, and no attempt is made to contradict that. The court was well within its discretion in declining to grant a new trial because of this showing.
Appellant complains of the language of some of the instructions of the court. There are sentences in the instructions which, stand ing alone, are subject to adverse criticism, but taken as a whole they fairly presented the case to the jury. On the point principally relied upon by defendant of the deterioration being the result of the inherent nature or vice of the commodity shipped, the instructions are quite full and complete.
Finding no material error in the record, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action for the possession of real property. Judgment was rendered for the plaintiff, and the defendants appeal.
The action was tried by the court. The judgment recites that-—
“The court having heard and considered the evidence, and being fully advised in the premises, finds for the plaintiff, and that she is the owner and entitled to the immediate possession of the lands described in her petition, and that the defendants have wrongfully and forcibly taken possession of a portion thereof, and built a fence thereon, and have excluded the plaintiff therefrom, which fence should be removed and possession of said lands restored to the plaintiff.
“The court further finds that James W. Drake, in 1901, owned all that part of the northwest quarter of section 28, township 24, range 18, in Allen county, Kansas, lying west of the middle of the Neosho river, except a roadway twenty-three and one-half (23%) feet wide off the south side.
“That there was at said time and now is in said tract 119.78 acres.
“That said James W. Drake in the year 1901, believing he actually owned 128 acres in said tract, made a will, a correct copy of which is attached to the plaintiff’s petition, devising the said lands to his wife, Mary A. Drake, for her natural lifetime, and at her death to the plaintiff and defendants in the following amounts: To the plaintiff, Cora E. Wilson, 18 acres; to Minerva Burton, 10 acres; to Dora Strauderman, 50 acres; and to Sarah E. Bliss, 50 acres. They all being daughters of the said James W. Drake. . . .
“The court further finds from the evidence that the will gives neither the plaintiff nor any of the defendants any priority over the other regarding the said several tracts of lands, and there being not sufficient number of acres in the tract to set apart to each one of the number of acres designated in the will, the court finds that in justice and equity, and according to the intention of the testator as derived from the said will, the lands actually in the tract should be prorated among the devisees, and to prorate the same, the number of acres going to each would be as follows:
“To Cora E. Wilson................................ 16.84 acres
To Minerva Burton................................ 9.36 acres
To Dora Strauderman............................. 46.79 acres
And to Sarah E. Bliss.............................. 46.79 acres
119.78 acres”
Judgment was rendered in accordance with those findings.
The will of James W. Dr alee provided that—
“Third. After the death of my said wife, Mary A., I desire that my real estate shall be divided among my children as follows:
“(a) To my son, Frank E. Drake, I give and bequeath that part of the northwest quarter (%) of section 34, township 24, range 18, commencing at the northwest corner of said quarter section and running thence south 80 rods, thence east to the Neosho river, thence up said river to the north line of said section and west to beginning and also I give and bequeath to him my undivided interest in the north half of the northwest quarter of section 19, township 24, range 18.
“(b) To my daughter, Cora E. Wilson, I give and bequeath that part of said northwest quarter or section 34, township 24, range 18, commencing 80 rods south of the northwest comer, thence south 40 rods, thence east to the Neosho river, thence up said river to a point opposite the point of beginning, thence west to beginning. I also give and bequeath to my said daughter, Cora E. Wilson, all that part of the northwest quarter of section 28, township 24, range 18, lying south of 100 acres hereinafter described and less 10 acres off the west end, being a tract of about 18 acres.
“(c) To my daughter, Nora Baker, I give and bequeath all that part of the northwest quarter of section 34, township 24, range 18, lying south of the two tracts above described.
“(d) To my daughter, Sarah E. Bliss, I give and bequeath 50 acres ,off the north end of that part of the northwest quarter of section 28, township 24, range 18, lying west of the Neosho river.
“(e) To my daughter, Dora Strauderman, I give and bequeath 50 acres in the northwest quarter of said section 28, lying adjoining and immediately south of the last-described tract.
“(f) To my daughter, Viola Harris, I give and bequeath the northeast quarter of the .northeast quarter, and 10 acres in the southeast corner of the southeast quarter of section 29, township 24, range 18.
“(g) To my daughter, Minerva Burton, I give and bequeath the southeast quarter of the northeast quarter of section 29, and 10 acres in the southwest quarter of the northwest quarter of section 28, township 24, range 18, which 10 acres lies west of the 18-acre tract bequeathed to my daughter, Cora' E. Wilson, and to these my children I give and bequeath said real estate', to them, their heirs and assigns in fee simple forever.”
1.- The plaintiff introduced evidence which tended to prove that the tract of land owned by James W. Drake in the northwest quarter of section 28 did not contain 128 acres, but did contain 119.78 acres. Defendants argue that the will was not ambiguous and that other evidence could not be introduced to explain its terms. The will was not ambiguous, but James W. Drake did not own as much land in the northwest quarter of section 28 as he thought he owned. He devised all that he thought he owned. The .only purpose of the evidence introduced and of which complaint is made was to show the amount of land which he actually owned. It did not explain, modify, contradict or vary the terms of the will. For that reason it was not error to admit the evidence.
2. The real controversy in this case is over the construction of the will when applied to the land devised by it. The defendants say:
“It will be observed the language employed by the testator in the will under consideration clearly indicates his intention to give Sarah E. Bliss 50 acres, Dora Strauderman 50 acres, Minerva Burton 10 acres, and the plaintiff, Cora E. Wilson, about 18 acres. In other words, it gives to Cora E. Wilson the remainder of the tract, whatever that acreage may amount to.”
We quote again from the brief of the defendants, as follows: '
“The first tract of land given to Cora E. Wilson by her father amounts to 40 acres. The second tract mentioned as about 18 acres, would give to Cora E. Wilson 58 acres, if there was that much land. To his daughter, Sarah E. Bliss, defendant herein, he gives 50 acres; to Dora Strauderman he gives 50 acres; to Minerva Burton he gave 40 acres, and in addition gave her the 10 acres lying west of the Wilson tract, containing about 18 acres, which made 50 acres to Mrs. Burton.
‘“Now, if the court’s construction of the will is sustained, it means that Mrs. Wilson, the plaintiff herein, gets 66.84 and cuts these defendants’ acreage down, Mrs. Burton to 49.36, Dora Strauderman to 46.79 acres, and Sarah E. Bliss to 46.79.”
The will does not say that Cora E. Wilson shall have what is left of the 128 acres after the devises to Sarah E. Bliss, Dora Strauderman and Minerva Burton have been carved out of that tract; neither does the will bear that interpretation. The only reasonable interpretation of the will is that it discloses an intention on the part of James W. Drake to devise the 128 acres to Sarah E. Bliss, Dora Strauderman, Minerva Burton and Cora E. Wilson in the proportion that the acreage of each of the tracts devised bore to the 128 acres if there had been that much land in the tract.
On the exact question for determination by this court, no case has been cited by either party; and the court, with the limited time at its disposal, has been unable to find any authoritative declaration. The nearest approach to the principle that must be here applied is found in the law of wills under the head of “Abatement of Legacies,” which in 40 Cyc. 1899, is defined to be, “Abatement is the reduction of a legacy on account of the insufficiency of the estate of the testator to pay all his debts and legacies in full.” The writer there says:
“It is to be presumed that a will was drawn honestly and in good faith and that the testator intended all the legacies provided for therein to be paid, putting all legatees on an equal footing in this respect, and contemplating that this property was sufficient in amount to carry out his scheme of distribution in all its details, and for this reason it is the general rule that, in case the personal property of the testator proves insufficient to pay all pecuniary legacies in full, all such legacies must abate ratably.”
In 2 Page on Wills (2d ed. § 1367) the following language is used:
“Where testator’s intention is evidently that his estate shall be equally divided, and he allotted specific property merely for the purpose of creating an equal division, it has been held that where title to certain property fails because of facts which were not known to testator, the disappointed beneficiary may have contribution from other beneficiaries.”
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Mary Zumbrun in behalf of herself and her minor child against the city of Osawatomie, to recover damages sustained by the death of her husband, alleged to have been killed by the negligence of the city in maintaining an electric-light plant which it owned and operated. The city denied the charge of negligence and alleged that Zumbrun’s death was the result of his contributory negligence. At the close of plaintiff’s evidence defendant’s demurrer to her evidence was sustained and judgment given in favor of defendant. She appeals.
It is conceded that the city owns and is operating an electric-light plant, that Zumbrun came to his death at the time and place stated and when he was in contact with one of the wires of the system, and that due notice of the time and place of the accident was given to the city by plaintiff. It is also conceded that Zumbrun was a qualified and experienced electrician, and for more than a year had been an employee of Otis Pierce, who was carrying on a general electric business in Osawatomie. Pierce, it appears, sent him to a two-story building to move a drop light in the upper story. To accomplish this it was necessary for him to go into the attic through a hatchway in the ceiling of the second story. Shortly after he went into the attic an unusual noise was heard which attracted the attention of others, and going up there they found him with his wrist lying over a wire, apparently lifeless, with an electric-burn on his wrist and one on his foot. A pulmotor was at once obtained and used upon him, but without restorative effect.
The electrical system of the defendant was a three-wire system, leading to the building where the accident occurred, consisting of a neutral wire and two hot wires. A current of 2,300 volts is carried up to a transformer, where it is reduced to about 110 volts, conveyed on wires to buildings for lighting purposes. There was testimony to the effect that it was necessary to provide a ground wire on the neutral at the transformer for the protection of life and from fire, and that where there is no grounding of that wire, and there happens to be a grounding elsewhere on the system, all the power is thrown on one of the hot wires, increasing the voltage from 220 to 230. A voltage of 110, it appears, will not cause injury to workmen or others coming in contact with it, but that 220 to 230 will kill those who make contact with the system. There was evidence that there was no grounding of the neutral wire at the transformer or the wires leading to the place in question. After the accident a number of tests were made and showed that when grounded elsewhere the hot wire carried from 217 to 228 volts. It is contended by the plaintiff that her evidence tended to establish every element necessary to a recovery. Testimony was produced tending to show that in such a system it was the duty of the city to ground the wire at the transformer, that the wire with which some one came in contact carried double the voltage usually carried in a lighting system, and that Zumbrun came to his death by accidentally coming in contact with an overcharged wire, fed from defendant’s defective system, and that if the neutral wire had been grounded the wire with which he came in contact would have canned only about 110 volts, which would not have killed or seriously injured him, and that under the evidence it was a question for the jury to determine whether his death was the result of defendant’s negligence.
The defendant contends that plaintiff failed to make out a prima facie case of negligence on its part, and that Zumbrun came to his death by some accidental or unknown cause not disclosed by the evidence. There is a further contention that the evidence discloses that Zumbrun failed to exercise ordinary care for his own safety, that he was working in a place of peril, a danger observable by any intelligent workman, and that being a trained electrician, the danger in the situation was necessarily known to him, and his failure to take precautions that an ordinarily prudent person would, the fault was his own and no recovery can be had for the fatal result of the operation.
As shown, the case was disposed of upon a demurrer to plaintiff’s evidence, the court holding that that offered by plaintiff precluded a recovery. The force of the evidence must be measured by the rules applicable where a demurrer to evidence is sustained. One of the rules is that a court cannot weigh conflicting evidence, but must take as true every part of it favorable to plaintiff which tends to prove his case. (Wolf v. Washer, 32 Kan. 533, 4 Pac. 1036; Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008.) If there are contradictions in the testimony offered or even in that given by a single witness, the court is not warranted in determining that evidence favorable to the plaintiff has been neutralized or destroyed by other conflicting evidence or contradictions of a witness relating to the same fact. That which is unfavorable to plaintiff must be discarded or laid aside, and that which is favorable must be accepted as the truth even though both come from the mouth of the same witness. In Acker v. Norman, 72 Kan. 586, 84 Pac. 531, it was decided:
“It is error for a trial court to sustain a demurrer to the evidence because there is a conflict between plaintiff’s testimony in chief and that given upon cross-examination. The court cannot weigh the evidence. If there is any evidence whatever to support plaintiff’s case it must be left to the jury to decide its weight and credibility.”
Every fact which any of the favorable evidence of plaintiff tends to prove in support of his case and all that fairly may be inferred from such evidence, must be accepted, and if these fairly tend tcv sustain plaintiff’s cause of action the demurrer should be overruled. Contradictions and conflicts of evidence must go to the jury or the trier of the facts for determination.
Touching the evidence in the record, there appears to be- sufficient evidence to show that Zumbrun came to his death by contact with an electric wire which was a part of an electric system maintained by the defendant. The question arises whether there is testimony tending to show that the system was negligently maintained and that the death of Zumbrun was due to the negligence charged. Witnesses describe the electric plant, as a single-phase three-wire system, consisting of a neutral wire and two outside hot wires. The wires leading from a transformer to buildings to be lighted are called a secondary system. In lighting a building current is carried by a neutral wire and two hot wires and sometimes the hot wires are conducted through different parts of a building. They carry from 110 to 115 volts, and if one of them should be accidentally grounded at some other place the voltage is doubled, and when that occurs the increased voltage is such that contact with a wire by anyone is liable to injure or kill, while 110 volts would not have that effect. One electrician, when asked if it was necessary or that safety required the neutral wire should be grounded at the transformer, said, “It most certainly is.”
“Q. If the neutral wire isn’t grounded and one of the hot wires should have an accidental ground, what effect would it have upon the other? A. You would get 220 volts, and sometimes — hardly ever, though — you are liable to get 2,300.”
Another electrician testified:
“Q. I will ask you as an electrician, from your experience, whether that neutral wire should or should not be grounddS? A. Well, for protection of fire and life we think it ought to be grounded.
“Q. If the neutral wire is grounded and there is a shortening of one of the hot wires, what would be the effect on the other? A. The effect would be that the voltage would still be 110 from the fact that the ground would show the balance.
“Q. And if the neutral isn’t grounded, and there is an accidental ground on one of the other wires, what would be the effect of that? A. It would throw the voltage of one of the secondary wires all' on the other.
“Q. In other words, it doubles the voltage? A. Yes, sir.”
A test was made after the accident by a grounding process, and it showed the secondary wire to carry a voltage of between 228 and 230.
A witness produced a book called the National Electric Code, and testified that it was a standard code for electric wiring and used generally by electricians all over the country, and that if any wiring is done which does not come up to the code standard, it can be condemned by the proper authorities and rewiring can be compelled. The code, he said, was in force in Kansas, used by the state fire marshal of Kansas, and applicable in an alternating system like the one at Osawatomie, and provides that grounding is necessary if the voltage exceeds 150. Testimony was received to the effect that a voltage of 110 to 120 would not have killed or seriously injured a young, healthy man as Zumbrun was shown to be. The evidence fairly tends to show that safety, not only of workmen but of others that might come in contact with the wiring system, required a grounding of the neutral wire, and that if it had been done injuries like that suffered by Zumbrun could have been averted. The evidence, we conclude, tends to show that the system of the defendant was defective, was negligently maintained by it, and that its negligence contributed to the death of Zumbrun.
Considerable is said as to a number of contradictions in the testimony of witnesses and that some brought out on cross-examination showed inconsistencies which tended to weaken the force of other parts of the evidence, but under the rule applicable upon a demurrer to the evidence as already pointed out, only that which is favorable to the plaintiff is to be considered and that which is unfavorable is to be left out of consideration. It may be that if the evidence produced had been submitted to the court upon the merits to be determined, upon the preponderance of the evidence deemed to be-credible, its decision that the plaintiff had failed to show a right of recovery would be unassailable. Upon the demurrer, however, the court cannot weigh conflicting evidence, determine credibility of witnesses, or settle which of two contradictory statements by a witness should be accepted as the truth.
The further contention is made in support of the ruling on the demurrer to the evidence that Zumbrun was shown to be guilty of contributory negligence, and therefore a recovery is barred. It is contended that he was a trained electrician of six years’ experience and had been at work for Pierce in a shop of the city for more than a year, and hence knew, or should have known, of the perils incident to the electrical work at the place of the accident. It is contended that he went into the attic where the roof of the building was only two and one-half feet above the ceiling, on which there wére a number of metal pipes, and necessarily had to work in a reclining and cramped position, and that his feet were placed on a gas pipe, which made a ground from the hot wire through his body to the gas pipe, and thus he was killed by the current. It is further contended that he could have avoided the risk by switching off the current or pulling the fuses from the block in the upper hall of the building. It may be conceded that the handling of electric wires while the current is on involves danger and that one so engaged should exercise such care as the danger of the surroundings would suggest to a man of ordinary prudence. As to the contention that Zumbrun should have known that there was no grounding of the wire at the transformer, the evidence does not show that he did know, and as the case was presented presumptions cannot be indulged against him. In the absence of evidence of knowledge he would be warranted in assuming that the plant was properly constructed. Concerning the fact that the fuses were not pulled when he went to work, there is some testimony that they were removed when he first went to the building, and that before completing the work he went back to the shop for some purpose not shown, and that he soon returned to finish the job. The fuses were found to be in the block when the accident occurred, but by whom they were replaced was not shown. There were a number of people in and about the building at the time of the accident. There was testimony that in doing the work he was engaged in it would have been prudent to have pulled the fuses or cut off the current. Other evidence was to the effect that it was not necessary to pull the fuses or cut off the current. This was evidently based upon the theory that not more than 110 to 115 volts of current would be carried over the wires if the system had been properly constructed and maintained. Some evidence was presented which tended to show that the risk could have been avoided if he had exercised caution to cut off the current while he was shifting the drop light. Whether he was guilty of contributory negligence is an affirmative defense and the burden of establishing it rests upon the party who asserts it and not upon the opposite party to disprove it. Where the evidence is open to different inferences the negligence charged against the plaintiff becomes a question of fact for the jury, and where reasonable minds might differ, it is error to take the case from the jury. (Eidson v. Railway Co., 85 Kan. 329, 116 Pac. 485; Bowers v. Mildren, 107 Kan. 584, 193 Pac. 318; Heck v. Quindaro Township, 113 Kan. 647, 216 Pac. 293.) Where there is no dispute in the evidence as to negligence, and only one inference is possible, the question becomes one for the court, but under the evidence the present case does not come within that rule.
As to whether Zumbrun was chargeable with knowledge that the neutral wire was not grounded, reference is made to Railway Co. v. Stanley, 71 Kan. 520, 81 Pac. 176, where it was held in a somewhat similar case that whether an injured person should have knowledge of the dangerous condition of the place was not a question of law for the court. We are of the opinion that under the evidence the question of whether Zumbrun was guilty of contributory negligence was one for the determination of the jury.
In a cross appeal defendant claims that upon the pleadings and the opening statement of counsel for plaintiff it was entitled to judgment. The court denied its motions, and in view of the conclusions reached and the statements in' the record it is clear that there is no merit in the complaint.
Some other questions discussed do not appear to require special attention. The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by five railway companies, as common carriers of freight, to enjoin the public service commission of the state from putting into force an order of defendant made April 30, 1927, in a proceeding before it (docket No. 8743) in which the Lawson Sand and Material Company was complainant and these five railway companies and four others were defendants, by which order defendants were “notified and required to establish on or before May 30, 1927, . . . and thereafter to maintain and apply to the transportation of sand, in carloads, from Shockey, Kansas,” to certain destinations in southeastern Kansas, “rates per net ton which shall not exceed the rates on like traffic from Grinter, Kansas, to the same destinations,” on the ground that the rates fixed by such order are unjust, unreasonable, discriminatory, unduly preferential, confiscatory and unlawful. The Lawson Sand and Material Company intervened. Answers and other appropriate pleadings were filed and there was a trial on the merits. The trial court made findings of fact and concluded that the order was “unjust, unlawful and unreasonable, and unduly preferential,” and rendered judgment for plaintiffs. The defendant and the intervener have appealed.
Appellees moved to dismiss the appeal for the reason that after the trial court had filed its findings of fact and conclusions of law appellants filed no motion to set aside any of the findings or to modify them, no motion for additional findings or for judgment on the findings, and for the reason that the motion for a new trial was general in its terms and was not argued, hence the trial court was never at any time advised of specific objections which the defendant and the intervener had to the findings, conclusions and judgments of the court, or of any specific reason why a motion for a new trial should be granted, citing Brick v. Fire Insurance Co., 117 Kan. 44, 230 Pac. 309, and allied cases. But the record does not bring this case within the rule there stated. In this case, a request having been made that the court make findings and conclusions, at the close of the evidence the court asked counsel to submit suggested findings of fact and conclusions of law. Counsel for each side prepared and submitted such suggested findings and conclusions. Considering these and the evidence, the court prepared findings of fact and conclusions of law, but before filing them sent copies to counsel for suggestions. A day was set for hearing and counsel for defendant and for the intervener argued at length and in detail their objections to the findings and conclusions as prepared by the court. Counsel for plaintiffs also made an argument, after which the court, with one modification which is not material, filed the findings of fact and conclusions of law as prepared by the court. In due time the defendant and intervener filed their motion—
“. . . to set aside the findings of fact and verdict, special verdict, judgment and decision heretofore rendered in this cause and grant a new trial, for the following reasons: I. Because of erroneous rulings of the court. II. Be cause the findings of fact and verdict, report or decision are in whole or in part contrary to the evidence. III. For newly discovered evidence,” etc.
(Since no new evidence was offered in support of the motion this ground becomes unimportant.) The motion for a new trial- was ruled upon on a regular day for the hearing of motions. Counsel for the defendant and the intervener were not present, but the court was fully advised of their objections to the findings, conclusions and judgment of the court, and so stated in the journal entry overruling the motion. We regard the case, therefore, as governed by the rule stated in Beam v. Farmers Union Mutual Hail Ins. Co., 127 Kan. 234, 273 Pac. 440, where it was held:
“Where a motion for a new trial was made upon alleged grounds that had been duly presented by oral argument and citation of authorities to the court in the course of the trial, the fact that counsel- was not present and did not orally repeat the arguments when the motion was considered does not warrant the overlooking of the grounds assigned nor a denial of a review of those errors.”
The record before us, therefore, is sufficient to enable' appellants to have considered the questions presented by them.
The findings are exceptionally complete. Appellants complain that in some respects they are not supported by the evidence, but from examination, not only of the abstract but of the transcript, we find this complaint not to be well taken. It is also argued that the findings are in some respects inconsistent, but a careful examination of them discloses that this point is not well taken. There is not much controversy about the law of the case. It is conceded that, generally speaking (R. S. 66-101 et seq.), the public service commission has authority to establish rates for intrastate shipments, subject to a review by a proceeding such as this as to whether they are just, reasonable, preferential, discriminatory, or confiscatory. Since the public service commission is organized and equipped to deal with questions of rates, courts should be slow to set aside their orders (Railroad Co. v. Utilities Commission, 95 Kan. 604, 623, 148 Pac. 667), but when their orders are attacked in court and it becomes clear, under the evidence and rules of law pertaining thereto, that the order complained of is unjust, unreasonable, unduly preferential and unjustly discriminatory, the court should not hesitate to set it aside.
For many years sand for commercial purposes has been produced by sand plants located at points on the Kansas river from Topeka to Kansas City, and on the Arkansas river from Wichita to Arkansas City, and shipped in carloads. Much of this sand is used in certain districts in southeastern Kansas, and hence the sand plants, -wherever situated, seek to obtain such a freight rate as to have this market available to them. The Union Pacific railroad runs from Topeka to Kansas City on the north side of the river. At Muncie, about one mile west of the Kansas City switching district, is a sand plant on the Union Pacific railroad. The Kansas City, Kaw Valley & Western Railway, hereafter called the Kaw Valley, an electric line, runs from Lawrence to Kansas City on the north side of the river. On this line at Sirridge, within the Kansas City switching district, is a sand plant, and another at Grinter, about two miles west of the Kansas City switching district. There are other sand plants within the switching district of Kansas City. Rates from Kansas City apply from all. sand plants within the shipping district of Kansas City. Shipments from Grinter, Muncie and Sirridge, through Kansas City to southeastern Kansas, are interstate shipments, and the rates are regulated by orders of the interstate commerce commission. When the railroads were under federal control and all operated as one line of railroad an order was made by the interstate commerce commission that shipments of sand from Grinter and Muncie through Kansas City to southeast Kansas should take the same rate as shipments from Kansas City (51 I. C. C. 350; 55 I. C. C. 683; 68 I. C. C. 111). After federal control of railroads ceased and the roads were turned back to the respective railway companies in March, 1920, the railroads applied to the interstate commerce commission for an increased rate for the shipments from Grinter and Muncie through Kansas City, for the reason that they are not actually within the switching district of Kansas City. This application was denied. (78 I. C. C. 687.) These rulings were based largely on the near location of the sand plants to each other, and the fact that their methods of producing sand and their distributing points were similar. The Santa Fe railway company has a line of road from Topeka to Kansas City on the south side of the Kansas river, and has a line, of road south from Lawrence, and another from Holliday making southeastern Kansas connections, and also a line of road from Holliday north to Atchison. This line crosses the Union Pacific and Kaw Valley railroads at Bonner Springs. Served by the Santa Fe there were sand plants at Topeka and at Lawrence, and at Turner, east of Holliday, and other plants inside of the switching limits of Kansas City. Shipments of sand from Grinter and Muncie and Sirridge via the Santa Fe to southeast Kansas points were ordinarily routed through Bonner Springs instead of Kansas City. If the shipments were via other railroads, plaintiffs herein, the routing was through Kansas City.
Sometime in 1922 the Diplomatic Gravel Company of Galena, Kan., complained to the public service commission of rates applicable to crushed rock and chats moving intrastate between points in Kansas. On consideration of the complaint the commission, on its own motion, decided to inquire into the reasonableness of rates on sand, gravel, etc., moving within the state, and by its order of July 5, 1922 (docket No. 4882) opened 'up a general investigation of such rates. -Notice was given to the carriers, to shippers, and to the public, and a hearing was had, after which, and on September 6, 1922, the commission found the existing rates to be unjust, unreasonable and .discriminatory; that the great volume of the commodities involved moved on specific commodity rates between points on the carriers’ lines, which had not been .shown in all instances to be. unreasonable, and that rate relationships exist between ship? ping points through the establishment of the specifics mentioned, which should not be disturbed, and further found that the only feasible remedy to apply under the circumstances was to establish a reasonable maximum mileage scale' of rates between all points in Kansas. The commission therefore ordered the carriers to. establish between all points in Kansas mileage rates to be observed as maximum, superseding all intrastate mileage rates in effect and to alternate with the specific rates then in effect, which maximum rates, were to be as per a schedule contained in the order. This schedule provided rates per 100 .pounds applicable to single-line hauls, to which was added one cent per 100 pounds if the haul was over two lines of. railroad, and one and' one-half cents per 100 pounds if the.haul was over three or more lines of railroad. The rate was graduated as to distance. .The minimum distance prescribed in-the order was 40 miles, and the .maximum rate for that distance for a single-line haul was 3.5 cents per 100 pounds., .Other ■ rates for single-line .-hauls, varying up to: 13 cents, were prescribed for distances--varying up..to 500.miles. This increased rate when the shipment, moved over two or more lines of' railroad was claimed by the. carriers., because of the, expense'of transferring a shipment from one line of railroad to another, and also the accounting between the companies made necessary thereby, and it was recognized by the commission as being fair and reasonable. It is a difference generally recognized in rate making. The rates so prescribed by this order were put in effect by the carriers. The sand plant at Lawrence, had a more direct line for the shipment of sand to southeast Kansas, and soon dissatisfaction developed among the producers who had plants at Kansas City, Topeka, and along the Arkansas river. These producers filed a complaint before the commission and the case was reopened for hearing. On May 15, 1923, an order called “the second supplemental order” was made modifying the order of September 26, 1922. We need not detail these modifications. In the making of this order the sand producers of Lawrence had not participated, and on their complaint the commission again reopened the case and made a “fifth supplemental order” dated January 29, 1924. In this order the claim of the Lawrence producers for a low rate because of short mileage was in part ignored on the theory that what was best for the majority of the producers was the best disposition that could be made of the matter. By this order the principal sand-consuming territory in southeast Kansas was divided into two districts, which came to be known as territory A and territory B. The commission found that the carriers’ proposed basis of 6% cents per 100 pounds from the Arkansas river and Kansas river sand-producing points to destinations in territory A, “via routes over which specific commodity rates on sand are now published,” is just and reasonable and should be approved; also that the proposal of the carriers as to territory B, “to apply the single-line mileage scale prescribed in our original 'order in this case to the average of the short-line distances figured via the shortest workable routes from each of said sand-producing points on the Kaw' river to each destination point in said territory via routes over which specific commodity rates on sand are now published from the respective sand-producing points, plus one-half cent per 100 pounds,’ is reasonable and should be approved”; also that the sand-producing points on the Arkansas river had never been grouped in the making of sand rates, into territory B, and that from those points the mileage rates- originally prescribed in the case 'should apply. The commission ordered the rate of 6% cents on sand in carloads from sand-producing points on the Arkansas river between Wichita and Arkansas City, and from sand-producing points on the Kansas river between Topeka and Kansas City to destinations in territory A via routes “over which specific commodity rates on sand were then published from the respective sand-producing points,” and also ordered rates from sand-producing points on the Kansas river from Topeka to Kansas City to destinations in territory B, “by applying the single-line mileage scale prescribed in our original order in this case to the average of the short-line distances via the shortest workable routes from each of said sand-producing points on the Kaw river to each destination point in said territory via routes over which specific commodity rates on sand are now published from the respective sand-producing points, plus one-half cent per 100 pounds,” and that the mileage rates on sand in the original order shall apply in territory B from each sand-producing point on the Arkansas river.
It should be noted that this “fifth supplemental order” modifies but does not supplant the original order of September 6, 1922. And the modification relates only to shipments to points in territories A and B, the boundaries of which territories were stated in the order. The result was that, no matter what the distance from any sand plant considered was to the point of destination in territory A, whether that distance was 100 miles or 200 miles, the rate was 6y2 cents per 100 pounds, if the shipment was a single-line haul. Witnesses for the plaintiffs and the intervener in this case differed as to the interpretation of this order as to whether the 6%-cent rate just referred to applied on a single-line haul only; but the order in question applied that rate “via routes over which specific commodity rates on sand are now published,” and such rates were published on single-line hauls only. No other reason is suggested for using that language in the order, and this is the interpretation given to the order by the commission in the report filed in connection with the order sought to be enjoined in this case, for in that it was said, referring to this “fifth supplemental order,” “With respect to territory A this order resulted in the establishment of a rate of six and one-half (6%) cents per hundredweight via single-line routes only.” More than that, the carriers put in the rate on that interpretation of the order, and no showing is made that the public service commission ever at any time objected to the rates promulgated in accordance with such interpretation.
With the rate matters in the situation as above stated the Lawson Sand and Material Company, in July, 1926, established a sand plant at Shockey, Kan., on the line of the Kaw Valley Railroad, 37 miles west of Kansas City and 4.3 miles east of Lawrence. The Kaw Valley railroad crosses to the south side of the river at Lawrence, but has no physical connection there with the Santa Fe railroad. It does have physical connection with the Union Pacific on the north side of the river at Lawrence. The Kaw Valley promulgated a rate of $10 per car for switching from the sand plant at Shockey to the Union Pacific at Lawrence, thereby placing Shockey, for the purposes of sand shipments, within the shipping district of Lawrence. For shipments of sand from Shockey to southeastern Kansas the shipment would necessarily move over two or more lines of railroad, and the rates applicable were those provided by the original order of September 6, 1922 (docket No. 4882). In October, 1926, the Lawson Sand and Material Company filed a complaint before the public service commission (docket No. 8743) that the rate from Shockey to southeastern Kansas destinations in territories A and B were unjust, unreasonable and unduly prejudicial as compared with rates from competing sand-producing points located in Missouri and Kansas for the same destination territory. On the hearing of this complaint the order was made April 30, 1927, which was sought to be enjoined by this action. We note that in this hearing other producers having plants at other points on the Kansas river, or on the Arkansas river, were not invited to be heard. The order made is stated early in this opinion. It will be noted that the order provided that the rates from Shockey should not exceed rates on like trafile from Grinter to the same destination. It might just as well have read from Kansas City instead of from Grinter, for by the rulings of the interstate commerce commission previously cited Grinter and Muncie were, with respect to rates on sand, treated the same as though they had been located within the shipping district of Kansas City, and the rates from Kansas City applied to shipments from those points. It cannot be said that the interstate commerce commission contemplated that the Kansas City rates should apply to shipments from Lawrence, or from a plant within the Lawrence shipping district, for in a hearing before the interstate commerce commission (Jackman & Jackman v. A., T. & S. F. Ry. Co., 118 I. C. C. 547) it was found that the rates on sand in carloads from Lawrence to destinations within a radius of 150 miles east of Kansas City would be unreasonable and unduly prejudicial to the extent they exceeded 20 cents per ton of 2,000 pounds, the rates from Grinter, Muncie and other Kansas City sand plants to the same destination. The additional charge over the rate for the mileage basis for a one-line haul, when the haul was over two or more lines, held to be reasonable and put into effect by the order of the public service commission of September 6, 1922, was not generally abrogated by the interstate commerce commission in the orders above referred to, nor by the second or fifth supplemental order above mentioned (docket 4882). It is a proper charge to be taken into consideration in rate making, and the carriers have at all times contended that it should be taken into consideration. The order sought to be enjoined removes that distinction so far as shipments from Shockey are concerned, but does not remove the distinction so far as shipments from Topeka or from plants on the south side of the river at Lawrence, or plants located on the Arkansas river. The order sought to be enjoined gives shipments from Shockey an undue advantage in rates over shipments from other points to destinations in the same territory in southeastern Kansas. Many illustrations of that are computed and set forth in the findings of the trial court. It seems as' unreasonable to give Shockey the same rate as Kansas City for shipments to southeastern Kansas as it would be to give to plants on the south side of the river at Lawrence the same rate as Kansas City on shipments moving east of that point. To give to shipments from Shockey the rate prescribed for a single-line haul to destinations in southeastern Kansas over which the haul would be on two or more lines of road is unduly preferential as against the plants situated at other sand-producing points from which shippers into the same territory are required to pay the rate for a two- or three- or more line haul.
As a practical matter in the actual movement of shipments of sand from Grinter, Muncie and Sirridge to southeastern Kansas points on the line of the Santa Fe railway the shipments do not go through Kansas City, but move west to Bonner Springs, where they are transferred to the Santa Fe line; and to points on the line of the Santa Fe railway in southeast Kansas shipments taken at Bonner Springs are handled the same, whether they reach Bonner Springs from the plants at Grinter, Muncie and Sirridge, east of Bonner Springs, or whether they reach it from the plant at Shockey, west of Bonner Springs. It is argued that this fact justifies the order sought to be enjoined. If the order in question were limited to rates to destination points on the Santa Fe railroad south of Bonner Springs there would be force in the argument, but the order is not so limited, and the merits of such an order are not before us, hence we cannot pass upon them. The order is applicable to each of the railroads named as defendants in,the order, five of which are plaintiffs herein. To reach the lines of these railroads, other than the Santa Fe, shipments from Shockey have to move through Kansas City, or through Topeka, or Junction City, or be transferred from the Santa Fe at some point south of Bonner Springs. The result of the order sought to be enjoined is therefore to disturb existing rates from each of the sand-producing points on the Kansas river and on the Arkansas river to destinations in the designated territory. And this order was made without hearing the shippers from such points, or the consumers at points- of destination. The fact that the order gives shipments from Shockey á lower rate to destinations in the described territory than exist for shipments into the same territory from many other sand-producing points makes the order unduly preferential. If the establishment of the sand plant at Shockey required an adjustment of existing freight rates on sand the inquiry as to the appropriate order should have been as extensive as the effect of the order to be made. Here the inquiry was limited, and the order limited in its wording, but its effect was to disturb existing rates from many other shipping points. Taken as a whole, it seems clear that the order made was unreasonable and unduly preferential, and therefore unlawful. .
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 action to quiet title. There was judgment for plaintiff, and the defendant, Mary Mason Maddis, has appealed.
For the purpose of considering the questions presented we start with the title to the land in question in John Mason, who in 1905 executed a will disposing of this land by a paragraph which reads as follows:
“I will, devise and bequeath to my beloved son [Thomas E. Mason] and heirs of his body (the land is described), the same not to be mortgaged or sold during the lifetime of my son.”
After the death of John Mason the son, Thomas E. Mason, and his wife, Mary Mason, lived on this land for a number of years. In 1920 Mary Mason sued Thomas E. Mason for a divorce and alimony and sought the custody of minor children and pay for their support. The parties entered into a stipulation in which they agreed that the following is a fair, just and equitable division of their property rights and a fair division of their joint property:
First, that plaintiff should have as her full distributive share of the joint property of the parties, and in full of alimony, suit money and maintenance, the sum of $2,000 in cash, of which $500 was paid at the time of the stipulation and $1,500 payable on or before October 1, 1921, with 8 per cent interest. Second, “that the real estate now owned by the parties (which included the land in question) . on which there is a mortgage of thirty-six hundred ($3,600) dollars, and all personal property ... is and shall become the sole absolute property of the defendant, subject to all mortgage liens now on said property, which defendant hereby assumes and agrees to pay and holds plaintiff free and harmless from the payment of any such liens or any part thereof.” There was a further provision with respect to the division of the household goods, the custody of the minor children and their support, and . . It is agreed, subject to the approval of the court, that this stipulation shall be in full settlement of the property rights of the parties hereto and that no other judgment shall be made or rendered herein, with reference to the division of property, alimony, suit money or any money judgment against the defendant, except that the judgment shall be and become a lien against all property now or hereafter owned by said defendant, which is not now subject to mortgage.”
On the trial of the divorce action judgment for divorce was rendered for plaintiff, and the court found the stipulation “to be fair, equitable and just division of the property rights between plaintiff and defendant.”
The court decreed the custody of the children and the amount defendant should contribute to their support in accordance with the stipulation, and further—
“. . . ordered, adjudged and decreed that said stipulation, as to property rights, be and the same is hereby ratified, confirmed and approved and that each of the parties is hereby given as his or her own individual property re spectively to handle and dispose of without the consent of the other the property set aside to each as in said stipulation provided, except, however, the property of said defendant shall be subject to the payment of the amount herein decreed to plaintiff and to the payment of the amount herein specified towards the maintenance and support of the two minor children; . . .”
Thomas E. Mason did not pay the $1,500 which by the stipulation, confirmed by the court’s decree, he had agreed to pay by October 21, 1921, and in January, 1926, Mary Mason caused an execution to be issued upon the decree in the divorce case, levy to be made upon the land in question; the same was sold by the sheriff and bid in by her, the sale was confirmed, and there being no redemption of the property in the eighteen months’ period for redemption, a sheriff’s deed was issued to her August 20, 1927. In the meantime, and on February 13, 1927, Thomas E. Mason had conveyed the real property in question by general warranty deed to the plaintiff, Ray K. Hart, who, on March 29, 1927, began this action to quiet title. The only defendants named in the action are Mary Mason Maddis and E. M. Wiley, Mary Mason having remarried.
We shall first examine the decree in the divorce case to see whether the sums provided therein to be paid by Thomas E. Mason were made a lien upon the land in question. By the stipulation of the parties it was agreed that there was a mortgage for $3,600 on this land, that all of the title which the parties had to the real estate was to pass to Thomas E. Mason, who assumed and agreed to pay the mortgage and hold Mary Mason free from liability thereon. It was further agreed that the money judgment to be rendered in the action should be a lien against all property then or thereafter owned by Thomas E. Mason “which is not now subject to mortgage.” By their stipulation, therefore, the parties did not impress a lien upon the land in question for the payment of any money judgment to be rendered in the action. The court found this stipulation “to be fair, equitable and just” in its entirety and without exception, and in his decree specifically approved it. The question is: Did the court, notwithstanding the stipulation, his findings thereon and his approval of it, intend to impress a lien on this land with a money judgment rendered against defendant in the action by this language in the decree, “except, however, the property of said defendant shall be subject to the payment of the amount herein decreed to plaintiff” and for the support of the children? It seems clear to us that this language did not have that effect, but on the other hand that the court was making the money judgment rendered against defendant a lien upon, or charge against, all property then owned, or afterwards acquired by, defendant, except that then subject to mortgage, which was the land in question, as the stipulation provided. That is the only interpretation of the decree consistent with his finding that the stipulation was “fair, equitable and just.” It is the rule, frequently announced by this court, that when an action is tried to the court, and it makes findings of fact, it is presumed to have made all findings necessary to support the judgment rendered. (See Martin v. Scott Lumber Co., 127 Kan. 391, syl., 273 Pac. 411; Heyen v. Garton, 129 Kan. 453, 283 Pac. 636, and authorities cited therein.) If the general language of the judgment appears to be broader than the findings it will be limited to them. The result is that the lien of the money judgment in favor of Mary Mason in the divorce action never attached to this land, and same was not subject to sale under an execution predicated on such judgment and decree.
We are asked to say whether the will of John Mason created an estate tail in Thomas E. Mason and the heirs of his body, but we decline to do so for the reason that the decision of that question is not necessary for the determination of this case. It is also unnecessary and would be futile to pass on another question argued by counsel, namely, whether the interest of a tenant in tail can be sold on execution, and what is the nature of the estate that would pass to the purchaser at such sale.
One other point needs to be noted. The taxes on the land in question became delinquent, and in due course E. M. Wiley procured a tax deed. Plaintiff made Wiley a party defendant in the action, alleged that the tax deed was void as of conveyance of title, for reasons which need not now be stated. His testimony was that he had tendered Wiley the amount of the taxes with interest represented by his tax deed. The court below made it a condition of quieting title in favor of plaintiff and against Wiley that he pay Wiley the amount of the taxes with interest. The plaintiff has filed a cross appeal on thi§ question and contends that the ruling of the court was erroneous for the reason that Wiley had never had possession of the property under the tax deed. Passing other considerations which would reach the same result, the action to quiet title was an equitable action. It was within the judicial discretion of the court to require the payment of such taxes as a condition to quieting title in plaintiff. (Alison v. Harper, 104 Kan. 497, 180 Pac. 449.) There is nothing in this record to indicate that such discretion was abused.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff seeks to recover damages for. the failure of the defendant to carry out a contract made between them for the exchange of real property. The defendant filed a motion asking the court to determine issues of law in advance of the trial and asking for judgment in his favor on the pleadings. The court overruled the motion of the defendant for judgment on the pleadings and determined that under the allegations of the petition and amended reply the plaintiff was entitled to submit evidence to prove the damages alleged in his petition. The defendant appeals.
The petition alleged that the plaintiff was the owner of two adjoining quarter sections of land in Graham county encumbered by a mortgage of $10,000, and that the defendant was the owner of a half section of land in Sheridan county, free of encumbrance, which they in writing agreed to exchange on certain terms not here necessary to mention, except that defendant assumed and agreed to pay the $10,000 mortgage on the land owned by the plaintiff and that plaintiff was to give to the defendant a mortgage for $4,000 on the land in Sheridan county. The defendant refused to carry the contract into execution, and the plaintiff sued for the damages sustained by him.
One of the defenses presented by the amended answer was that the defendant, who was a married man, with his family occupied as his homestead 160 acres of the land he had agreed to convey, and that his wife had not joined in the contract for the exchange of properties. The amended answer described the land occupied as his homestead. The amended reply admitted that the defendant occupied 160 acres of the land in controversy as his homestead.
Section 60-3503 of the Revised Statutes reads:
“That no action for the specific performance of a contract for the sale or exchange of real estate in the state of Kansas or for damages by reason of the violation of any contract to sell or exchange lands within the state of Kansas, occupied as a homestead by the owner and his family, shall be maintained unless the contract of sale is signed by both the husband and wife, or by an agent or broker duly authorized in writing by both the husband and wife to make such sale or exchange.”
The plaintiff concedes that the contract so far as the homestead is concerned is unenforceable, but argues that the contract is divisible and that he can recover damages for the failure of the defendant to carry out the contract as to the 160 acres of land not occupied by the defendant as his homestead. The defendant claims that the contract is not divisible, and that because the contract is not divisible this action cannot be sustained as an action for damages.
In Herman v. Sawyer, 112 Kan. 6, 209 Pac. 663, we quote the first paragraph of the syllabus as follows:
“The action was one by a vendee to compel specific performance of a contract to convey three quarter sections of land. The contract was not signed by the vendor’s wife, and one quarter section was a homestead. Held, a decree should be entered for conveyance of the other two quarter sections, with proper abatements of price.” (Syl. ¶ 1.)
From the briefs in that action and from the opinion of this court we learn that the contract there was for the exchange of three quarter sections of land in Lane county for hotel property in Kansas City, Mo. The contract in Herman v. Sawyer was of the same character and subject to the defense that part of the land was a homestead the same as the contract in the present action. If part specific performance could be compelled in Herman v. Sawyerf damages for failure to perform that part of the contract not involving the homestead can be recovered in the present action. The difficulty attending the ascertainment of those damages is for the court on the trial of the action. That difficulty is not now before this court. Herman v. Sawyer, supra, compels an affirmance of the order of the trial court.
It is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
In a case tried by the court, plaintiff requested the court to state findings of fact and conclusions of law. The request was denied, and plaintiff appeals.
The request, which was made on October 6, follows:
“Plaintiff, while the taking of testimony is still in progress, requests the court to make special findings of fact' and conclusions of law herein, and offers to furnish to the court for his convenience therein a full transcript of the testimony.”
The journal entry of the proceedings shows the trial commenced on October 5. Plaintiff introduced her evidence, and at 3 p. m. rested. A demurrer to plaintiff’s evidence was interposed, and was overruled. Thereupon defendants offered evidence until 6 p. m., when the court adjourned until 9 a. m. the following day. Beginning at 9 a. m. of October 6, defendants offered evidence until 10 a. m., when they rested. Plaintiff then offered evidence in rebuttal. So far as the record discloses, the request may have been made just before plaintiff closed her rebuttal evidence. Plaintiff’s brief states that most of the testimony had been introduced when the request was made. Defendant’s brief states the request was not made until shortly before the close of the testimony. The reply brief does not deny this statement.
Error will not be presumed. Error must affirmatively appear. •The presumption on appeal is, in the absence of a contrary showing, that proceedings were regular. The burden is on the complaining party to show irregularity. The statute does not fix the time, with relation to commencement of trial, when request for findings of fact and conclusions of law shall be made. The matter is subject to regulation by rule of court. In this instance, in order to make error affirmatively appear, it was necessary for plaintiff to show to this court absence of any rule and timely request under the particular circumstances, or compliance with an existing rule. There is no such showing.
Defendant’s brief says the trial court had a rule requiring the request to be made before introduction of testimony, and says the court called attention of counsel for plaintiff to the rule when the belated request was made and denied. The reply brief does not dispute these statements.
Leaving at one side everything except the formal abstracts of the record, there is nothing to indicate that plaintiff suffered any prejudice on account of the court’s refusal to make findings of fact. The court did find that plaintiff failed to establish the allegations of her petition. The record necessitates the inference that the court disbelieved testimony offered by plaintiff to sustain allegations of her petition which she was obliged to establish by proof in order to recover, and believed contradictory testimony offered by defendants. Apparently the assignment of error relating to refusal of the request for findings of fact merely serves as an excuse to debate in this court conflicting testimony.
There is nothing else in the case which requires discussion, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The plaintiff in this action appeals from the ruling of the trial court sustaining a demurrer to his evidence.
The action was upon a written contract, which was fulfilled by the plaintiff, but only in part by the defendant. The answer denied liability under the contract because it was void for uncertainty and indefiniteness and that the failure of fulfillment, which was admitted, was alleged to be not the fault of the defendant, but that of the plaintiff who had promised to make ready for such fulfillment but had never done so. The plaintiff maintains that the contract calls for fulfillment by defendant by payment of dollars or dollars’ worth of property at the option of the defendant if fulfilled promptly, but since prolonged default, it requires payment now only in money.
The court overruled a demurrer to the petition, but suggested the rule of quantum meruit might apply, and evidence was introduced largely along that line without any change being made in the petition. In sustaining the demurrer to the evidence of the plaintiff the court did so upon the theory that the contract and the evidence showed nothing more than a joint enterprise or adventure, and that the evidence failed to show the plaintiff entitled to recover anything under such partnership.
The contract as attached to the- petition is as follows :
“This agreement, made and entered into this 15th day of February, 1926, whereby and under the terms of which George V. Smith, a sole trustee, doing business as the Lieunette Oil Company, hereinafter called first party, and Frank A. Whan, hereinafter called second party, as follows, to wit:
“That under the terms and conditions hereinafter set forth, first party does hereby employ said second party to drill a well for oil and gas mining purposes, at a location approximately one thousand feet (1,000) west of the northeast corner of lot one (1) of section twenty-seven (27), township twenty-six (26), range nine (9), Greenwood county, Kansas, and first party agrees to pay second party therefor, as is hereinafter set forth, eleven thousand five hundred dollars ($11,500).
“Second party is to furnish the labor, fuel and water, and said amount is to be paid by first party out of said $11,500, and the difference between the amount of labor, fuel and water, and the said $11,500 first party shall pay to second party by delivering to second party certificates of units or shares of stock in the Lieunette Oil Company, which said company shall be capitalized in the amount not to exceed $25,000.
“In addition to the said $11,500 first party shall furnish to second party a new wire line drilling cable thirty-five hundred (3,500) feet in length. First party is to furnish the derrick and casing. George Smith, First Party.
Frank A. Whan, Second Party.”
The uncontradicted evidence is that lot 1, on which the well was to be drilled, contained twenty acres, and the additional holdings of the defendant and the proposed Lieunette Oil Company was a 60-acre tract near by; that the well was drilled by plaintiff and his work completed under the contract; that defendant paid for the labor, fuel and water as the contract required in the sum of $3,-682.51, thus leaving a balance under the contract of $7,817.49, which is the specific sum prayed for by plaintiff to be paid in money since - the defendant did not exercise his option to pay it promptly in stock of that worth or value. The court intimated that an accounting might be had in this case, but no such evidence was offered, and of course on the joint-adventure theory the evidence was not complete nor sufficient to entitle plaintiff to recover, but the main question on appeal is whether or not the contract and the evidence make this relation of these two parties a joint adventure. As was well said in Howard v. Zimmerman, 120 Kan. 77, 79, 242 Pac. 131: “The term ‘joint enterprise’ is not helpfully elucidated by definition.” The opinion then applies the term “enterprise” to the conduct of parties associated together with “equal privilege to control the method and means of accomplishing the common design” and with “equal authority to prescribe conditions of use.” The contract itself in the case at bar is silent about the use, control and management of the lease on which the well was to be drilled, and makes no reference to the lease on the sixty-acre tract which it is conceded was considered as belonging to the proposed Lieunette Oil Company. On the face of the contract it would seem more nearly like a joint ownership. Of course, the success or failure of an ownership of any property is in some respects an adventure, but not such as is contemplated in the particular legal use of the term. This contract by itself appears to be no different than if it had provided for a fractional or entire interest in a mercantile business in a neighboring town as compensation for his services in drilling the well, or an undivided interest in a farm. They cannot be made partners by operation of law, but only by their own express or implied agreement to become such.
The mere purchase of property by two persons each of whom contributes a portion of the purchase price makes them joint owners of the property, but does not establish between them the relation of joint adventurers.” (33 C. J. 842.)
“A joint adventure can exist only by the voluntary agreement of the parties to it. The joint ownership of property does not create it; nor can it. arise by mere operation of law.” (33 C. J. 847.)
“Although courts in modern times do not treat a joint venture as identical with a partnership, it is so similar in its nature and in the contractual relationships created thereby that the rights as between the adventurers are governed practically by the same rules that govern partnerships. A joint adventure generally relates to a single transaction. The usual test of a partnership as between the parties to a joint adventure is their intent to become partners.” (15 R. C. L. 500.)
The contract in the case of Crawford v. Forrester, 108 Kan. 222, 194 Pac. 635, cited, embraced many details as to the procuring of oil leases, selling them for particular purposes, development of some of them, the handling and disposition of the proceeds and retention of remaining leases, which contract was held to constitute a joint adventure.
In the case of Livingston v. Lewis, 109 Kan. 298, 198 Pac. 952, three parties entered into a contract to purchase, own and operate a newspaper and printing plant, which they did for some time with unsuccessful results, and the court held, “That business relationship, not arising to the dignity of a true partnership, impliedly did consist of a joint adventure.” (p. 301.)
The facts in the case of Lumber Co. v. Marshall, 109 Kan. 172, 197 Pac. 861, more nearly agree with those in this case. There the oil company owned the lease and contracted with one Marshall to drill a well thereon, agreeing to give him a half interest in the lease after deducting the interests sold by the company to other leaseholders for contributions by them toward the expense of drilling this well, and Marshall and the oil company were each to pay one-half of the expense of drilling the well after deducting the contributions made by outside parties. Marshall paid his half of the expense, but the oil company did not, and it was held that such contract did not create a partnership nor imply a joint adventure. The contract itself should indicate that the intention was to create such a relation between the parties. Besides, if we look to the testimony for assistance in such determination, it is thus far positively against any such relationship. Plaintiff testified:
“I didn’t have any interest in the oil runs. . . . We never operated this well together. I had nothing to do with the operation of the well. Smith had hired a pumper for that purpose. Smith and I had no well together. We had no joint interest in this well.”
We cannot agree that this contract, either alone or with the evidence, creates a joint enterprise or adventure.
As to the right of plaintiff to recover on the theory of quantum meruit, we think the general rule applies that such resort is only available in case the contract is void, unenforceable, rescinded or waived by the party seeking to recover.
“Where a person for whom work is to be done breaks the contract, the other party either may sue upon his contract and recover so far as he has performed, as well as for loss of profits, or he may waive the contract, sue upon a quantum meruit and recover the value of his labor. But he cannot pursue both remedies, for they bear a different measure of damage.” (6 R. C. L. 1032.)
The contract is certainly not waived in this case by the plaintiff. On the contrary, plaintiff seeks to enforce it and alleges breach thereof by defendant. Neither does it seem to be void for uncertainty. There does not appear to be any difference between the parties hereto,- either in their pleadings or their briefs, as to what was originally intended to be given to the plaintiff by the defendant. It was the difference between $11,500 and the cdst of labor, fuel and wáter to be paid by first party to second party by delivering certificates of units or shares of stock in the Lieunette Oil Company, which company shall be capitalized in an amount not to exceed $25,000. The only differences existing are who breached it, and whether it is payable in stock or money’s worth of stock. If not void for uncertainty, then it stands as a valid contract alleged by the plaintiff to have been breached by the defendant. The contract was introduced in evidence, abundant evidence was furnished by plaintiff tending to show it was breached by the defendant, which fully supports the plaintiff’s claim in his suit upon the contract to recover something thereon, either $7,817.49 in stock of the proposed oil company, stock of the worth or value of that amount, or that amount in money. We think the rule in the construction of a contract which has been fully performed by one party and breached by the other is that the person injured by the breach is to be placed, so far as it is possible by a monetary award, in the position he would have been in had the contract been performed, and is not entitled to be placed in any better position by a recovery on his contract when broken than he would have been if there had been performance of the contract. (17 C. J. 847.) Accordingly, if it is established that plaintiff has fully performed his part of the contract and defendant has breached it, and failed in performance, the plaintiff will be entitled to recover the reasonable value of $7,817.49 of the stock of the proposed company at the time of the breach.
The judgment is reversed and the cause is remanded with instructions for further proceedings in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the city of Ottawa to have declared void and to set aside an order of the public service commis sion permitting the Municipal Power Transmission Company to sell its properties to the Kansas City Power and Light Company, also an order of the public service commission granting a certificate of convenience and authority to the Kansas City Power and Light Company to operate that property. The trial court made findings of fact and conclusions of law and rendered judgment for defendants. Plaintiff has appealed.
About 1906 the city of Ottawa, a city of the second class, being authorized by statute (R. S. 12-842) to do so, built a municipal water and electric light plant for the purpose of supplying the inhabitants of the city, and such contiguous territory as it could servé, with water and electric energy for light and other purposes. In May, 1918, the city of Williamsburg, a small town in Franklin county, desiring electricity for its inhabitants, entered into a contract with the city of Ottawa by which the city of Williamsburg agreed that it would build an electric transmission line from Williamsburg to the electric plant of the city of Ottawa and purchase electric current for its use to be transmitted over such line for a period of twenty years. The city of Williamsburg built this transmission line, also a distribution system in the city. Under this contract the city of Ottawa sold its electric energy at its switchboard. It had no duties with respect to building the transmission line or distribution system of the city of Williamsburg, or of maintaining such line or system. The contract provided, among other things, that it could not be assigned by the city of Williams-burg without the consent of the city of Ottawa. In January, 1920, the city of Richmond made a similar contract with the city of Ottawa and built a transmission line from Richmond to Ottawa, also a distribution system. In October, 1921, the city of Quenemo made a similar contract with the city of Ottawa and built a distribution system and transmission line from Quenemo to Ottawa. All of these contracts were similar in their terms. Some of the cities so contracting with the city of Ottawa had contracts by which they furnished electric energy to other small cities.
I. C. Bushong had been engaged in the electrical construction business and, as a contractor, had constructed the transmission lines and distribution systems of the small cities above mentioned. Early in 1925 Bushong purchased the transmission line and distribution system of the city of Richmond, and on March 14, 1925, the city of Ottawa consented to the transfer of the contract between it and the city of Richmond to Bushong. About March 21, 1925, Bushong entered into a contract with Joseph C. Porter, president of the Kansas City Power Securities Corporation, which corporation holds the common stock of the Kansas City Power and Light Company, which company has a generating plant at Kansas City, Mo., and a distribution system in Kansas City, Mo., and contiguous territory, a part of which is in Kansas, by the terms of which Bushong was to organize the Municipal Power Transmission Company and to purchase and operate electric transmission lines and distribution systems in Kansas near Kansas City, Mo., and in the vicinity of Ottawa. .The Municipal Power Transmission Company was organized as a Kansas corporation. Its stock, except five shares for qualifying directors, was issued to Bushong; all the stock was then placed with the Kansas City Power Securities Corporation as collateral for money to be advanced for the purchase of electric transmission lines and distribution system, and rebuilding and extending them into the territory mentioned. Bushong was general manager of the Municipal Power Transmission Company, with headquarters at Ottawa. In April, 1925, Bushong transferred to the Municipal Power Transmission Company the transmission line and distribution system he had purchased from the city of Richmond, and later this company purchased the transmission lines and distribution systems of Williamsburg and Quenemo. The city of Ottawa consented to the assignment of their contracts by Bushong and the cities to the Municipal Power and Transmission Company. The transmission lines and distribution systems so purchased by the Municipal Power and Transmission Company had been permitted to deteriorate until they did not give good service, and were rebuilt, repaired and extended by the Municipal Power and Transmission Company. On April 14, 1926, the city of Ottawa entered into an agreement with the Municipal Power and Transmission Company which recites that the company owned these various transmission lines from the small cities to Ottawa, and planned to construct other linesthat it was desired to cancel the various different contracts under which the small cities originally, and the transmission company at that time, was purchasing electricity from the city of Ottawa, and to make a new contract by which the transmission company agreed to purchase, for a term of twenty years from the date of the contract, electricity from the city of Ottawa for its transmission and distribution system in Franklin and adjoining counties. This contract, like the previous one, contained a provision that it could not be assigned without the consent of the city of Ottawa. The Municipal Power Transmission Company extended its transmission lines and distribution system, to several other small cities in Franklin and adjoining counties, and also to a number of farms. It purchased a transmission line and distribution system from the city of Lane, in Miami county, which was under contract to purchase electric energy from the city of Osawatomie, and continued to carry out that contract. Some other extensions were made, the details of which need not be set out. In 1927 the city of Ottawa made improvements to its water and light plant at a cost of about $100,000, and in doing so took into consideration its contract with the Municipal Power Transmission Company with its present and possible future needs. All of this expenditure was not made because of its contract with the transmission company, but part of it was to improve the waterworks 'plant, and part of it was because of the increased use of electric energy within the city of Ottawa, which increase had been even more rapid than that of the Municipal Power Transmission Company. In October, 1928, the Municipal Power Transmission Company entered into a contract with the Kansas City Power and Light Company by which the latter company purchased the property of the former company for the sum of $150,000, to be paid to the holders of the capital stock of the selling company, and in addition thereto assumed the payment of all of the outstanding debts, which then exceeded $300,000, of the selling company. The city of Ottawa was requested to consent to the assignment of the agreement between it and the Municipal Power Transmission Company of April 14, 1926, to the Kansas City Power and Light Company, but declined to do so. In November, 1928, the Municipal Power Transmission Company petitioned the public service commission (docket No. 10,446) for permission to sell its property to the Kansas City Power and Light Company. About the same^time the Kansas City Power and Light Company petitioned the public service commission (docket No. 10,441) for a certificate of convenience and authority to operate the property it was purchasing from the Municipal Power Transmission Company. These matters came on to be heard before the public service commission. The communities being served by the Municipal Power Transmission Company made no objection. The city of Ottawa objected, on the ground that it had encouraged the development of the ter ritory for the use of electric energy with the view of supplying the same fi*om its plant, and had expended large sums in constructing its plant, and that to permit the transfer of the property of the transmission company to the Kansas City Power and Light Company, which had a large generating plant of its own, would ultimately cause the loss of the territory to the city of Ottawa. The public service commission granted both petitions, effective in thirty days, four members voting in favor, and one dissenting. The city of Ottawa applied to the public service commission for a rehearing in docket No. 10,446. Two of the members of the public service commission voted in favor of granting such a rehearing, two voted in the negative, and one declined to vote. The city of Ottawa then brought this action. The trial court, after having made findings of fact, much more in detail than is here stated, made conclusions of law as follows:
“1. The contract of April 14, 1926, between the city of Ottawa and the Municipal Power Transmission Company is one over which the public service commission would have no jurisdiction, and is a contract which that commission would be powerless to enforce, set aside or modify. Under the law, the commission would have no authority to substitute one party for another in this contract.
“2. Under the statutes of this state, the public service commission has no jurisdiction, power or authority over an electric power plant owned and operated by a city of the second class, nor to allocate territory between a utility over which the commission does have jurisdiction and such plant of such city.
“3. The jurisdiction, power and authority of the public service commission respecting a proposed purchaser of an electric power utility in Kansas is limited, in a case such as this, to the question whether the public convenience will be adequately served by the proposed purchaser in the event it be permitted to assume control and operation of the property involved.
“4. The certificate of convenience and authority granted in this case to the Kansas City Power and Light Company covers, and was intended to cover, only the territory occupied and served by the Municipal Power Transmission Company, which territory is being given electric service by no other concern.
“5. The action of the public service commission in approving the sale made, and granting the certificate of convenience and authority, was within the sound discretion of the commission, and was not unreasonable, arbitrary, capricious or unlawful.
“6. Judgment should be entered in this case upholding the order and certificate of the public service commission, but further adjudging that the rights of the city of Ottawa, under its contract with the Municipal Power Transmission Company, cannot be affected or prejudiced by such order or certificate without its consent.”
Appellant contends that the orders of the public service commission sought to be set aside are void for the reason that before the expiration of thirty days, when they were to go into effect, on an application for rehearing on one of the orders, only two of the five members of the commission voted to deny the rehearing. From this it is argued that a majority of the commission was not in favor of the orders at the time they went into effect. We regard the point argued as being without substantial merit. It does not follow that a member of the commission who voted for rehearing would have voted against the granting of the orders on a rehearing, if one had been had. The orders had been made by the commission (R. S. 66-111), a majority of the commission was not in favor of a rehearing, hence the order stood, so far as the commission was concerned.
Appellant argues that the orders sought should have been denied by the public service commission on their merits for the reason’ that the city of Ottawa had established a power plant at great expense, had encouraged the use of electricity in near-by territory, and was then supplying electricity to the territory, and that if the Kansas City Power and Light Company were permitted to buy the lines, systems and property of the transmission company it ultimately, and perhaps as soon as it could do so, would cease purchasing electricity from the city of Ottawa. There is not a great deal <of merit to this argument. So far as the small cities and outlying •communities are concerned, the real question is, How can they best be supplied with electric energy for their needs? Had they waited for the city of Ottawa to build transmission lines and distribution systems for them perhaps they never would have had electricity. They obtained that in the first place by building their own distribution systems and their own transmission lines. The city of Ottawa did not obligate itself in any way for the construction and maintenance of those systems and lines. After these were built the small cities found it difficult to maintain them, for the reason that they were unable to employ, at sums they were able to pay, competent superintendents, linemen, etc., to keep their systems and lines in repair. The result was, these deteriorated and the service was poor and unsatisfactory. When the Municipal Power Transmission Company took these lines over it was necessary to rebuild them. They were put in good condition and furnished satisfactory service, but in doing this the transmission company had exhausted its credit, or at least to the extent that it became difficult for it to finance itself. The trial court found, among other things, that there was reason to believe that the sale of the property to the Kansas City Power and Light Company would effect a saving in financing expenses, and would be advantageous in the purchase of supplies and equipment, which benefits should be reflected in reduced rates to the consumers. Hence, so far as the communities to be served were concerned, it is reasonable to anticipate an advantage to them resulting from the purchase of the property by the Kansas City Power and Light Company.
Appellant contends that it never would have entered into the contract of April 14, 1926, with the Municipal Power Transmission Company if it had known that this company had any connection with the Kansas City Power and Light Company, or any company having a generating plant of its own, and contends that Bushong represented at the time that contract was made that the Municipal Power Transmission Company was a Kansas corporation, all of its stock being owned by himself and his immediate friends. The trial court found that there was no intentional misrepresentation by Bushong in that connection. Appellant complains of that finding. We have examined all the evidence relating thereto and find the finding well supported by the evidence. But this is not an action to set aside that contract because of fraud which induced its execution. It should be noted that the contract was favorable to the city of Ottawa, at least to the extent that it extended for twenty years from its date the obligation of the Municipal Power Transmission Company -to purchase electricity from Ottawa, while the contracts previously existing, although made for twenty years, had run from four to six years. It should be noted, also, that this contract -was not set aside by the public service commission, nor by the court in this action, but stands, so far as these proceedings are concerned, as a binding contract between the parties. The city of Ottawa has all that it had under its contract with the transmission company, and it is difficult to see where it is in a position to complain.
Appellant argues that the service now being furnished to the small cities and communities supplied by the Municipal Power Transmission Company is good, no complaint is being made of it, and that there is no assurance that these cities and communities will be better served by the Kansas City Power and Light Company than they are now served; hence, that there is no reason for a change in the ownership of the property. We do not understand it to be the rule that a property has to be deteriorated to the extent that it gives poor service before it can be sold by its owners. Naturally, if the service were poor and the purchaser contemplated improving the service, that fact would constitute a reason for permitting the sale; but if the service is good, and the purchasing company will continue good service, possibly at a lower rate, we see no reason why the public service commission should object to the transfer of title. The individuals owning the property should have something to say as to whether they can sell it or not. To deny them that right would be to deny to them an incident important to the ownership of property. (Utilities Co. v. Public Service Co., 154 Md. 445. See, also, 17 Mo. Pub. Ser. Com. Rep. 276.)
We find no error in the record'. The judgment of the court below is affirmed.
Burch, J., not participating in the decision. | [
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The opinion of the court was delivered by
Harvey, J.:
Among the items of damages sought to be recovered by plaintiff is one “for loss of time and inability to perform her household work and domestic duties in the sum of $500 for which last amount plaintiff sues to recover for the account and benefit of her said husband, J. R. Carlgren, who is legally entitled thereto.”
This allegation in the petition appears to be authorized by R. S. 23-205. In a motion for rehearing appellee now contends that, in view of the answer by the jury to question No. 4, plaintiff cannot recover for this item. Perhaps, because of the claim for this item of damages, there was a reason in addition to those discussed in the opinion for submitting question No. 4. Our inclination is to agree with appellee in the position he now takes on this matter, but we are in no position to decide it, for the reason that the point has never been determined in the court below, neither was it presented to this court either in the briefs or in oral argument. Other matters now urged in the motion for rehearing were considered and determined when the opinion was written, and nothing further need be said concerning them.
The motion for rehearing is denied. | [
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The opinion of the court was delivered by
Burch, J.:
The question is whether a cooperative creamery and store association had power to adopt the following by-law:
“Any stockholder of the association dying or moving out of said locality, the directors shall repay to him or his legal representatives the face value of the capital stock owned by said stockholder with all accrued interest and patronage dividends within twelve months after the absence or death of said stockholder.”
The petition alleged that in June, 1918, November, 1918, and February, 1920, William Loch, Sr., purchased shares of defendant’s capital stock to the number of sixty, at the face value of $10 per share; that at the time the shares were acquired and at the time the action was commenced, the quoted by-law was in force; that the shareholder died in June, 1927, and plaintiff was his executrix; that more than a year had elapsed since the shareholder’s death, and demand had been made on the corporation for the face value of the shares. The prayer was for $600 and accrued interest and dividends. Copies of the share certificates issued by the corporation were attached to the petition. The answer admitted defendant was a corporation duly organized and existing when the certificates were issued, and admitted existence of the by-law, and plaintiff’s capacity to sue, but alleged the by-law was illegal and void. Judgment was rendered on the pleadings for plaintiff for $600 and interest from date of the judgment.
Defendant contends there was no law in existence when the certificates were issued which authorized the by-law. Defendant overlooks chapter 137 of the Laws of 1913, which provided for incorporation of cooperative associations for the purpose of conducting agricultural, dairy, and mercantile business on the cooperative plan, including payment of fixed dividends on stock and the prorating of the remainder of profits among stockholders on their purchases and sales from and to the association. The statute was an incorporation law complete in itself, and contained the following provision:
“No association organized under this act shall be required to do or perform anything not. specifically required herein, in order to become a corporation, or to continue its business as such.” (Laws 1913, ch. 137, § 10.)
The amount of stock which any one person was permitted to own was limited (§7). It was not necessary to report the names of stockholders and the amount of stock held by each, unless required by the secretary of state (§ 9). The corporation itself was authorized to formulate by-laws relating to membership and distribution of profits, and to make such other rules as would tend to make the corporation an effective business organization (§8). Corporations organized for profit were forbidden to use the word “cooperative” as a part of corporate or business names (§ 11).
In 1887 the legislature enacted a statute to encourage cooperative societies, consisting of three short sections reading as follows:
“Section 1. That twenty or more persons in this state may organize and incorporate a cooperative society or company in the manner and form provided by law in other cases, for the purpose and to the end of more successfully promoting and conducting any industrial pursuit.
“Sec. 2. Every such society or company when so organized shall enjoy all the rights, privileges and powers conferred by law on other chartered or incorporated companies in this state.
“Sec. 3. The shareholders in any such society or company shall each have but one vote in all matters pertaining to the business of such society or company, without regard to the number of shares owned.” (Laws 1887, ch. 116.)
As indicated by section 2, societies created under this act were obliged to organize and operate under the restrictions of the general corporation law, except as noted in section 3. Experience demonstrated that if cooperative societies were to be really encouraged, a law was necessary which would offer the advantages of corporate form to exchanges, unions, and other associations, and at the same time allow great freedom of self-direction and self-control in cooperative effort for mutual benefit. The result was, the statute of 1913 was enacted. Section 10 permitted corporations which had organized or which had tried to organize under previous statutes to take advantage of the act by vote of a majority of the stockholders.
In 1915 the statute of 1887 was amended, the sections of that act were repealed, and corporations organized under the 1915 act were granted all the rights, privileges and powers conferred on other cooperative associations, which included cooperative associations organized under the law of 1913.
In 1913 rural telephone companies were authorized to take advantage of the law of 1887 (Laws 1913, ch. 138). In 1921 the cooperative marketing act was passed (Laws 1921, ch. 148; R. S. 1923, ch. 17, art. 16). In 1923 the laws relating to other cooperative societies were revised (R. S. 1923, ch. 17, art. 15).
The cooperative marketing act authorized by-laws providing for purchase of a member’s shares on death or withdrawal of the member (R. S. 17-1609), and it might be argued that power of a cooperative society to enact such a by-law did not previously exist. The court is of the opinion, however, the provision merely adapted to the needs of cooperative marketing associations the existing practice of cooperative societies organized under the laws of 1913.
In the case of Steele v. Telephone Association, 95 Kan. 580, 148 Pac. 661, a telephone company organized under the general corporation law undertook to place restrictions on the sale of shares of capital stock by a “constitution and by-laws” adopted pursuant to power to adopt by-laws granted by the general corporation law. It was held this could not be done, and the distinction between corporations organized under general law, and cooperative corporations organized under the Laws of 1913 and 1915, was pointed out in the opinion.
The business of a farmers’ union cooperative creamery and store association, such as defendant, is essentially local, and the advantage of a by-law like that of defendant to the institution and conduct of its business is cpiite manifest. The court concludes the restrictions on purchase of its own stock by a corporation organized under the general corporation law do not apply, and the by-law under consideration was valid.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Jochems, J.:
The defendant was adjudged guilty of contempt for violation of a restraining order and sentenced to thirty days in jail and to pay a fine of $100. He appeals.
On June 9, 1928, the assistant county attorney of Reno county filed a petition for an injunction against the defendant Vedder, and D. W. Hills, who was alleged to be the owner of the property described in the petition. The petition charged that the defendant Vedder was maintaining and conducting a liquor nuisance. Upon the filing of the petition a restraining order was issued ex parte as prayed.
On the day after the order was served on the defendant Vedder his counsel called the assistant county attorney’s attention to the fact that the defendant D. W. Hills was not the owner of the prop erty. Thereafter the assistant county attorney made a short investigation and advised counsel for defendant Vedder that he would file an amended petition. This was never done. Relying upon the statement of counsel for the state that an amended petition would be filed, the defendant Vedder did not file any answer. Contempt proceedings were had against Vedder on February 14, 1929, under the original order issued on June 9, 1928.
The defendant contends, first, that he filed no answer due to the understanding that an amended petition was to be filed and that if he had answered and the cause had been set down in the regular way it is possible that on a trial under the facts as they then existed no injunction would have been granted; and second, that the temporary injunction issued herein had lost its force and become inoperative by the lapse of more than a reasonable time.
This court finds no merit in either contention. The understanding relative to filing an amended petition had nothing to do with any change in the proceedings against the defendant. It merely contemplated correction as to the defendant owner of the property. The action could have been brought against the defendant without joining the property owner as a defendant. The understanding between counsel did not go to the extent of suspending or making the temporary injunction inoperative until an amended petition was filed. There was nothing in this understanding which contemplated setting aside the order already served on the defendant Vedder. If a new and different defendant had been brought in it would not have necessitated the issuance of a new order against the defendant Vedder.
Some discussion is advanced by the appellant as to the meaning and effect of a “restraining order” or “temporary injunction.” In Laswell v. Seaton, 107 Kan. 439, 191 Pac. 266, it was said:
“ ‘Temporary injunction’ and ‘restraining order’ are often used synonymously. . . . The restraint which the order purports to impose, and not the name given to it, determines its true name and character. (State v. Johnston, 78 Kan. 615, 97 Pac. 790. See, also, City of Emporia v. Telephone Co., 90 Kan. 118, 133 Pac. 858.)” (p. 442.)
It has become the custom as a matter of practice in Kansas to use the two terms “restraining order” and “temporary injunction” interchangeably. In twenty years of fairly active practice in this state the writer has failed to learn of any difference between the two. If a distinction does exist it is one “without a difference.” After all, as pointed out in the Laswell case, supra, it is the effect of the order, not the name given it, which determines its true character.
The order served on the defendant stated that he was restrained and enjoined until further order of the court. He made no effort to dissolve or modify the order. Such an order restraining the maintenance of a common liquor nuisance does not lose its force by the lapse of time even if there is no trial or hearing. Once served it must be obeyed, and the defendant disregarded it at his peril. (See 32 C. J. 373, § 633; also, State v. Werner, 80 Kan. 222, 101 Pac. 1004.) Nor does the fact that several terms of court have intervened since its issuance, without any trial or further order with reference thereto, cause the original order to lose its force where it is to remain in effect until the “further order of the court.” (Ex Parte Roper, 61 Tex. Cr. Rep. 68, 134 S. W. 334.)
The trial court had the right and power to enforce the original order by punishment for contempt.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The appeal is from an order of the district court denying a motion to modify a judgment for alimony.
The plaintiff, Charlotte Conway-, was granted a divorce from her husband, A. D. Conway. The parties had entered into contracts relating to property matters which were carried into the judgment. The following provisions of the judgment are those which are now material:
“That the real estate now occupied as the residence of the plaintiff, to wit [description of city lots], shall remain the property of the defendant, with the right of the plaintiff to continue in the possession of same, and to use same as her residence. Defendant shall keep the taxes paid on said real property, and shall pay the insurance premiums and interest on the mortgage against the same, and shall keep said mortgage - or another mortgage in no larger amount in force and effect, or discharge the same if he desires; but defendant shall not have the right to sell or further encumber said real property, so long as plaintiff uses same as her residence. In event plaintiff desires to reside elsewhere than in said residence, defendant shall pay to the clerk of the district court for the plaintiff on the 10th of each month, the sum of $45, which sum shall be in addition to the $200 monthly payments hereinafter specified; and in such event, the defendant shall be free to dispose of, rent, or otherwise handle said real estate as the defendant may desire, free and clear of any interest or claims of the plaintiff whatsoever. . . .
“The defendant shall pay into the office of the clerk of the district court the sum of $200 per month on or before the 10th day of each month, as alimony to and for the plaintiff, and not as support money for the children of the plaintiff. In event either of the death or remarriage of the plaintiff, any and all payments commencing with the date of said occurrence shall thereupon cease and terminate; ...
“The district court of Reno county, Kansas, shall retain jurisdiction of this cause, for the purpose of controlling and changing, in the court’s discretion, the amount or amounts of alimony to be paid in the future; and said matter may be regpened and reconsidered at any time upon application of either party; . . .”
The judgment was rendered on September 5, .1928. Neither party appealed, and time for appeal expired. Afterwards defendant filed a motion to modify the judgment. One ground of the motion was that the provision for payment of $200 per month was void, and the prayer was that defendant be relieved from complying with that provision. The motion' also prayed that the real estate occupied as a residence by plaintiff be sold, and the proceeds divided. After a hearing, the motion was denied, and in denying it the court said;
“Under the evidence, I believe the award should be reduced to $125 per month, had the court the legal power to do so.
’ “However, under the law and decisions as outlined, below, the court does not have such power.”
Plaintiff moves to dismiss the appeal, and the motion raises the question whether the court had power to reserve in the original judgment jurisdiction to reframe the judgment as mutations of time and circumstance might suggest. The question is one of statutory interpretation.
When an action for divorce and alimony has been commenced, the court may make orders relating to support of wife and children during pendency of the action, and relating to expenses of suit. (R. S. 60-1507.,) Such orders are interlocutory only. When a divorce is refused, the court may make orders for custody and maintenance of children, and may make orders relating to property interests of the parties, including control, division and disposition. (R. S. 60-1506.) An action may also be commenced for alimony alone, based on conduct for which a divorce might be granted. (R. S. 60-1516.) We have no present concern with these regulations except as they disclose legislative purpose to cover in detail and with precision the entire subject of what the court may do when the matrimonial bark is foundering.
When a divorce is granted, the marital status is dissolved. We have no such thing as divorce a mensa et thoro, conditional divorce, suspension of marital relation, and the like. Divorce ends marital relation, and the judgment is final and conclusive. (R. S. 60-1512.) The judgment is self-executing, and because of its absolute character, the regulation relating to remarriage after divorce is a regulation applying to divorced persons, and not to persons still having some sort of relation to each other as husband and wife. •
When the marriage is dissolved, the court winds up its affairs, as the court would do on dissolution of any other associate venture.- The affairs to be dealt with are two, and only two — children and property interests; and the court makes provision for custody, support and education of children of the marriage (R. S. 60-1510), and settles the property affairs of the former spouses (R. S. 60-1511).
The power vested in district courts to grant divorce, which includes- power to dispose of sequelae of divorce — custody and maintenance of children, and property matters, is “subject to regulation by law” (Const. art. 2, § 18). In the opinion in the case of Durland v. Durland, 67 Kan. 734, 74 Pac. 274, the court said:
“The word ‘regulation.’ is of broad signification, and in the absence of restrictive words the power granted must be regarded as plenary over the entire subject. The causes for which a divorce may be granted may be prescribed, and none other will suffice. Rules of procedure to be followed by the courts in granting relief for the causes named may be established, and no other course may be pursued.” (p. 736.)
In framing the existing law, the legislature had distinctly in mind and expressly dealt with the subject of continuing jurisdiction. The regulation relating to settlement of property interests follows im mediately after the regulation relating to custody and maintenance of children. Continuing jurisdiction to change any order relating to custody, support and education of children was granted. No such power was granted with respect to settlement of property interests, and the omission is tantamount to express denial. The judgment for alimony is a final determination of the rights of the parties in respeeLto alimony. A court cannot give itself power by its own order IPmake future revisions of the merits of the judgment, and, of course, the parties to the action cannot confer such jurisdiction by agreement.
As a result of divorce, the parties become single persons having no claims against each other, except such as are created by the judgment, and the statute is specific with reference to the nature of a money judgment for alimony — “by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable.” (R. S. 60-1511.) The sum may be large or small. The court may prescribe that the fixed sum shall be paid in gross, or be paid in divided portions at different times, but the sum is not variable. It may not be increased or diminished at some indefinite future time, as fortune may smile or frown upon those who tread their dissevered ways.
The foregoing merely elaborates what the court said in the opinion in the case of Noonan v. Noonan, 127 Kan. 287, 273 Pac. 409. In that case the district court awarded plaintiff custody of minor children, and made an allowance to plaintiff of $25 per month “as support and for education of her children . . .' until further order of this court.” One of the children died, the other attained majority, and after complying with the judgment for fourteen years, defendant moved that he be relieved from further payments. Plaintiff moved for an increased allowance to her on account of her necessitous condition. The district court held the allowance had two purposes, support of plaintiff and support and education of children, and denied both motions. This court held the allowance could not be regarded as alimony to plaintiff for her own support, for two reasons: The total sum was not definitely fixed, as the statute required, and the district court assumed to retain jurisdiction — something which it had no power to do. The two provisions, $25 per month payable monthly without express limitation as to time, and retention of jurisdiction, were appropriate to a judgment for support and education of children. Therefore, this court interpreted the allowance as one which the district court had power to make. The purpose of the allowance, so considered,, having been fulfilled, defendant was entitled to discharge from obligation to pay.
In the .opinion in the case of Hipple v. Hipple, 128 Kan. 406, 278 Pac. 33, appears the following statement:
“The court had jurisdiction to mhdify the award of alimony.” (p. 410.)
This court had nothing before it to which the statement could apply except an order reducing an allowance to plaintiff for support of minor children committed to her custody.
Applying what has been said to the facts of the present case, the allowance of $200 per month payable to plaintiff until her death or remarriage, was without any legal effect. It was not voidable, to be corrected by appeal. It was void for lack of power of the court to make it, and could be stricken from the judgment on motion at any time.
The real estate awarded to plaintiff as a residence was acquired by defendant after the marriage. The court was authorized to make such division between the parties of interest in the real estate as seemed to be just and reasonable. (R. S. 60-1511.) The division of interest which the court did make was this: Plaintiff may use and occupy the premises for residence purposes as long as she desires; subject to plaintiff’s interest, defendant shall be owner in fee, with the obligations of owner respecting payment of taxes and insurance premiums and protection against lien; on abandonment of the premises by plaintiff, defendant’s ownership shall- become absolute. Whether this division of interest was just arid reasonable could be tested only by appeal.
At the time the motion to modify was denied, plaintiff was residing on the real estate. The question whether the allowance to her, to be added to the money judgment in case she chooses to reside elsewhere, is valid, is not before the court for determination, and may never arise.
The district court had no power to reserve jurisdiction to modify either the money portion of the judgment or the portion relating to the real estate.
The order denying the motion to modify the original judgment is affirmed so far as it related to the real estate. The order is reversed so far as it related to the money judgment, and the cause is remanded with direction to strike from the original judgment the allowance to plaintiff of $200 per month. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one against an insurance company to recover on a policy insuring an employer against liability arising under the workmen’s compensation act. A demurrer to the amended petition was sustained, and plaintiff appeals.
The employer named in the policy was a copartnership consisting of J. C. McClellan, O. X. McClellan and E. J. Wheeler, doing business as the Eclipse Drilling Company. In fact, E. J. Wise was also a partner. The two McClellans and Wheeler were included in the undertakings of the policy. The address of the Eclipse Drilling Company was Tulsa, Okla. The classification of operations of the Eclipse Drilling Company covered by the policy was oil-well development, excluding the shooting of wells, and some operations incidental to oil-well development.
O. X. McClellan was killed while engaged in drilling an oil well in Seward county, Kansas. His widow and children were dependents. The widow, for herself and as guardian for the children, commenced an action against the insurance company before liability for compensation had been established, and a demurrer was sustained to the petition. An agreement to arbitrate was signed, and the claim for compensation was submitted to an arbitrator, who heard the claim and made findings on questions submitted to him. Plaintiff then amended her petition and included in it a transcript of the evidence introduced before the arbitrator, and his findings, including some supplemental findings. Unless the findings show liability under the workmen’s compensation act the demurrer to the petition was properly sustained.
The arbitrator found the facts by answering fully the questions submitted to him. The findings material here were that the Eclipse Drilling Company was not drilling the well in Seward county, and O. X. McClellan was not working for the Eclipse Drilling Company when the accident resulting in his death occurred.
There was some conflict in the oral testimony before the arbitrator, but besides oral testimony explaining the origin and nature of the Kansas enterprise and showing who were engaged in it, there was documentary evidence which could not be sworn away which demonstrated the correctness of the arbitrator’s findings.
The arbitrator was authorized to make all the findings which show nonliability on the policy. The questions submitted to the arbitrator extended to subjects which became immaterial when it was found the Eclipse Drilling Company was not interested in the Kansas project. The arbitrator properly dealt with all the questions, but the fact that he did so does not change the result. The arbitrator’s supplemental and explanatory findings were strictly relevant to the specific matters submitted to him and accorded with the written contract under which the well was drilled, and undisputed oral testimony.
Plaintiff’s abstract states that arbitration was had pursuant to agreement in writing wherein and whereby the question of liability was submitted to the arbitrator. The arbitrator has discharged his duty. The findings were filed, pursuant to agreement, with the clerk of the district court. They lie in his office unmodified and unimpeached, and when plaintiffs pleaded the findings of the arbitrator as a basis for recovery they pleaded themselves out of court. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The principal question involved in this appeal is whether the nonclaim provision of section 5 of chapter 88 of the Laws of 1927, reducing the time for depositors and creditors to file their claim with the receiver of an insolvent state bank to one year after the appointment of the receiver, applies to claims against a bank in the hands of the receiver prior to the time the new law became effective.
The two claims of the plaintiff in this case, one a certificate of deposit and the other a dishonored draft, were presented to the receiver for allowance at a time which was more than one year after the date of his appointment, and were by him rejected on that account. The plaintiff later filed this action in two counts, and the answer of the receiver is a general denial, and also that the claims are barred by the statute of limitations, having reference to this provision in the Laws of 1927. Trial was had to the court and judgment was rendered for the plaintiff on both counts, from which the receiver appeals.
The certificate of deposit was issued January 1, 1927, and the draft January 31, 1927. The bank failed March 31, 1927, and the receiver was appointed in April, 1927. Chapter 88 of the Laws of 1927 became effective June 1, 1927. Notice was published by the receiver May 15, 1928, fixing June 1, 1928, as the final date for depositors and creditors to file claims, which was the only notice of the kind given in this case. These claims were presented to the receiver in September, 1928, and being rejected, this action was commenced March 7, 1929. It was shown in the trial that at the time this action was commenced the receivership had not been closed and that he had funds on hand for final distribution.
The part of section 5 of chapter 88 of the Laws of 1927, urged by the appellant as controlling and applicable to the facts in this case, is as follows:
“All claims of depositors and other creditors must be filed with the receiver within one year after the date of his appointment, and if not so filed such claims shall be barred from participation in the estate of such bank.”
Prior to the enactment of this statute, R. S. 60-306, or the five-year statute of limitations, is conceded to have been the only statute limiting the time of filing such claims. However, since the administration of receivers of insolvent banks is under the supervision and jurisdiction of the district court of the district in which the bank is located, it has been held under the old law that the court could make an order fixing a reasonable time within which depositors and creditors must present their claims to the receiver or be barred from participating in the assets of the bank, even though the time thus fixed be less than the maximum period of the statute of limitations. (Thompson v. Bone, 122 Kan. 195, 251 Pac. 178.) So that while the new enactment might appear on its face to be a specific reduction of the time allowed for filing such claims from five years to one year, yet in practical effect it was only changing or limiting it to one year instead of what a court of equity might think was a reasonable time within five years. That the legislature has the right and power to increase or reduce the time for filing claims and to lengthen or shorten the period of limitation statutes is not a debatable question in Kansas, as such changes have been held to affect the remedy only and not to impair rights or obligations. (Swickard v. Bailey, 3 Kan. 507, 512; Keith v. Keith, 26 Kan. 26; Milbourne v. Kelley, 93 Kan. 753, 145 Pac. 816; Davis v. Nation, 82 Kan. 410, 108 Pac. 853; Mayse v. Belt, 83 Kan. 746, 112 Pac. 624; Serrault v. Price, 125 Kan. 548, 265 Pac. 63.)
Chapter 88 of the Laws of 1927 consists of eleven sections (in addition to formal ones), each of which is an amendment of a distinct and separate section of chapter 9 of the Revised Statutes of 1923, and the chapter makes no specific exception of existing or accrued causes of action, from which the appellant forcibly argues that such omission would naturally make it apply to actions already accrued as well as those arising or accruing in the future, citing 37 C. J. 694. The omission of such express exception does not wholly determine the question; it only raises a presumption that no exception was intended, as stated in the authority just cited. But a construction of the act itself is necessary to learn the intention of the legislature in this particular respect. Observing the changes or new matter found in this chapter, section 1 requires the approval of officers’ bonds by the bank commissioner. Section 2 imposes many restrictions on the making of loans to managing officers of the "bank. Section 3 is almost entirely new as to safeguarding the reserve. Section 4 requires the bank examiner to examine the bank at least twice each year instead of once as formerly. Section 5 has no change except the addition of the limitation provision above quoted. Section 6 concerns voluntary liquidation, eliminating many ■provisions in the former law. Section 7 is a criminal statute and increases the maximum punishment from 15 to 50 years for violations. Section 8 extends the privilege to more than two persons to check on same account under special arrangement to that effect ■and uses this language, “when a deposit has been made, or shall hereafter be made.” Section 9 adds to list of securities that may be handled, and prohibits the operation of branch banks. Section 10 increases the minimum amount of capital stock required, •and provides, as did the section amended, “That the limitations in ■regard to capital herein shall not apply to banks already chartered •at the time of the passage of this act.” Section 11 imposes new •requirements relative to surplus, and limits dividends.
Section 10 answers for itself the question here under consideration, and nearly all the other changes are such as could only apply •to the future. Besides, we must not overlook the fact that a strict interpretation of the retrospective application might in many cases near the border line seriously violate the former rule of a reasonable -.time as prescribed by the court. No one could safely say that a retrospective operation of this act as a whole, or any particular part of it, unless it be section 8, has been unequivocally expressed, and it is never the rule to construe a statute as applying retrospectively unless such is clearly the legislative intent.
“Generally, a statute will be construed as applying to conditions that may arise in the future. An act will not be given a retrospective operation unless the intention of the legislature that it shall so operate is unequivocally expressed.” (Douglas County v. Woodward, 73 Kan. 238, syl. ¶ 1, 84 Pac. 1028.)
“Ordinarily statutes are designed to apply prospectively rather than retrospectively. They may, of course, be remedial in their nature, designed to apply to and remedy existing conditions. They are not construed as applying retrospectively unless such is clearly the legislative intent. When such construction will disturb vested rights, or impair the obligations of existing contracts, it will not be given unless the wording of the statute makes such construction imperative.” (Bank Savings Life Ins. Co. v. Baker, 120 Kan. 756, 758, 244 Pac. 862.)
We therefore conclude that there was no error in the ruling of the trial court that the one-year limitation of the amended act did not apply to the claims of the plaintiff in this case against a bank which was in the hands of the receiver prior to the time the new law became effective.
Appellant suggests an error in the matter of the allowance of interest on the two claims, and appellee concedes the error to a certain extent. We think the certificate of deposit properly drew interest at four per cent from its date, January 1, 1927, until the failure of the bank on March 31, 1927, and no more until the date of the judgment; and the other claim should not draw any interest, prior to date of judgment.
With the modification as to the allowance of interest, as herein specified, which the trial court is directed to make when the cause is remanded, the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action between adjoining landowners, wherein the plaintiff sued the defendant for a mandatory injunction to remove a dike which the latter had constructed across a swale on his land to prevent the natural flow of water from the land of plaintiff.
It appears that for many years the defendant, Nicholas T. Weaver, has been the owner of the southeast quarter of section 31, township 7, range 5, in Cloud county. In 1923 plaintiff acquired the southwest quarter of the same section. There is a shallow, intermittent watercourse, known as Lost creek, which drains several sections of land in that vicinity. It enters plaintiff’s land at its north line about 600 feet from the northeast corner. It holds a southerly course for over 80 rods and then turns easterly for about 450 feet, and thence southeasterly across the boundary line between the lands of these litigants at a point about 40 rods north of the section line. Thence it angles southeasterly through defendant’s land and across the section line toward lands of lower proprietors.
When plaintiff acquired his land he set about cleaning and straightening the channel of the creek, and piled and scattered on its right and left banks the soil and debris which he dug' from the stream bed. At and near the point where the creek leaves his land and enters the land of defendant, plaintiff erected a low levee on the right bank. Defendant built a corresponding levee on the left bank. Both levees were made parallel to the course of the stream, which thereabout ran southeastwardly, but defendant also extended the upper end of his levee or dike directly northward away from the stream, at right angles thereto, for several hundred feet. That upper part of defendant’s dike crosses a swale or depression which lies in the natural course of drainage for a few acres of plaintiff’s land immediately to the west. The effect of this dike, in rainy seasons, has been to hold water on plaintiff’s land which would naturally drain toward the east, and on more than one occasion plaintiff’s growing crops of alfalfa have been drowned in consequence.
These and similar incidents precipitated a lawsuit between these parties in 1926, but through the friendly interposition of neighbors the litigants came to an understanding whereby the status quo was to be preserved between them and the lawsuit dismissed. At that time, however, according to plaintiff’s contention, defendant’s dike across the swale which dammed the water on his alfalfa field was either not constructed or not to the height it was being maintained at the time the present action was begun. The incidents of the earlier lawsuit are of minor consequence in this case, serving merely as matters o'f inducement hereto. There was no binding adjudication, not even a dismissal with prejudice.
In the present case the pleadings and evidence, covered a considerable range of issues and inquiry. The trial court made findings of fact, some of which we have summarized above. Others, in part, read:
“5. That before plaintiff did any work on Lost creek the south [right] bank thereof was probably a little higher than the north and east [left] bank, but not to exceed a few inches.
“6. The land of plaintiff and defendant is generally level, is agricultural land, and slopes from the north to the south, the southwest corner of plaintiff’s land being the lowest part of his land, . . .
“7. The improvements on plaintiff’s land are east of Lost creek, and near the east line of plaintiff’s land . . .
“8. There is a depression just south of the improvements of plaintiff, running from Lost creek east onto the land of defendant, which is slightly lower than the land towards Lost creek and to the north; . . .
“9. That before any work was done by the plaintiff on Lost creek, in time of floods, when more water came down Lost creek than its channel would carry, most of the water overflowed to the southwest, and passed over plaintiff’s land to the southwest, passing off his land within two or three hundred yards of the southwest corner thereof, but sometimes when the water was higher than the ordinary flood water it would pass to the east, south of the improvements on plaintiff’s land, through the depression mentioned in finding number 8 into the lands of the defendant, and across his land toward the east.
“10. That in 1925 the defendant constructed a dike on his land, starting south of the north end of the hedge on the division line and running south to Lost creek, and then southeast along its course for 100 or 150 feet; this dike is two or three feet in height, and extends north and south across the depression mentioned in finding No. 8, on the west of this dike, and between it and the hedge is a ditch constructed by defendant, the bottom of which is slightly higher at some places between said depression'and Lost creek than it is at said depression. . . .
“11. This ditch is sufficient to carry the ordinary surface water that falls and runs into said depression quickly into Lost creek, but when the flood waters overflowing Lost creek are high enough to get into this depression, said ditch is not sufficient to carry away said waters and is prevented from carrying the water off rapidly because the level of the water in Lost creek where it empties is so near the level of the water at the north end of said ditch.
“14. That the parties to this action in all their transactions in reference- to building dikes and ditches to repel or drain water from or off their respective lands had no intent to injure the property of the other, but all things were done in an honest endeavor to protect their own property and interests, and the court finds this was their purpose and that none of the parties t'o this suit had any intention at any time to injure the property of the other or do him wrong.
“16. That the height of the. south [right] bank of Lost creek, where it enters the land of defendant, is one foot higher than the level of the depression in the triangular [alfalfa] patch of land owned by plaintiff west of the levee constructed by defendants, and this is 'the lowest point of elevation on the south bank of Lost creek on the premises of plaintiff. That said levee made by defendants at the south end thereof is one-half foot lower than the levee on the south side of Lost creek where it enters the land of defendant; that its height is gradually raised toward the north until it is a little over a foot and a half higher at the north end.
“17. The court further finds that the defendants are justified in building the levee on their land of which plaintiff complains, in the same height that it now exists, except the north 150 feet, which should be lowered approximately one foot, and that if this is done by the defendants within thirty days the relief asked for plaintiff should be denied.
“Conclusions op Law.
“1. From the above findings of fact the court concludes that as a matter of law the plaintiff was justified in making what changes or improvements he did on Lost creek, and that the damage, if any, sustained by plaintiff on account of the defendant constructing a levee on defendant’s land complained about in this action, is contributed to by his own acts in raising the southwest bank of Lost creek so that it forces the flood water to the north and east of the regular channel of said creek to such a height that the water cannot drain through the ditch constructed by defendants into Lost creek.
“2. That plaintiff is not entitled to an injunction in this case, if the dike of defendants be lowered one foot on north 150 feet thereof. Judgment is rendered for the defendants and against the plaintiff for one-half of costs and against defendants for one-half of the costs.”
On June 25, 1929, judgment was entered accordingly and on July 8, 1929, defendants served their formal notice of appeal.
Several questions of appellate procedure are raised by counsel for appellee because defendant’s appeal was taken before the trial court passed on certain motions — for a new trial, for judgment, to set aside certain findings and for additional findings. It is also suggested that when the trial court did rule on these motions, which was several months after the appeal was taken, it entered a different judgment which in effect superseded the judgment of June 25, and the later judgment has not been appealed.
We hardly think the judgment entered on October 2, 1929, superseded the judgment of June 25. Liberally construed, it modified the earlier judgment on a detail of no present importance, but in its main aspects it confirmed it. As our whole system of procedure and practice favors the right of appeal, the court holds that the judgment of June 25 is here for review.
It is quite correct, however, that since no appeal has been taken from the trial court’s ruling on the motion for a new trial, nor from the other adverse rulings entered on October 2, our appellate review is necessarily restricted to questions of law arising on the pleadings and on the findings of fact and conclusions of law, and the propriety of the judgment entered thereon. (Buckwalter v. Henrion, 111 Kan. 781, 208 Pac. 645; King v. Stephens, 113 Kan. 558, 560, 215 Pac. 311; Seigle v. Soldiers’ Compensation Board, 119 Kan. 253, 254, 237 Pac. 657; Burnham v. Burnham, 120 Kan. 90, 91, 92, 242 Pac. 124.)
Turning, therefore, to the matters which are open to this review, appellant summarizes his specifications of error into three questions for our consideration, viz.:
“1. Did. the court rightfully decree that the defendants remove one foot ofi’ of the top of the north one hundred fifty feet of their levee, which levee the court found had been rightfully built and maintained?
“2. Did the court rightfully divide the costs between the parties?
“3. Did the court rightfully render no relief under the cross petition?”
It would seem that the first of these questions is effectively answered by the findings of fact. The swale or depression across which defendant constructed his dike is slightly lower than plaintiff’s alfalfa field to the west. When more water comes down Lost creek than it can carry, part of it flows over the alfalfa field through the depression, which is its natural outlet, across defendant’s land. That natural outlet has been obstructed by defendant’s dike. The pertinent statute says:
“A lower owner or proprietor shall not construct' or maintain a dam or levee for the purpose of obstructing the flow of surface water onto his land to the damage of the adjacent upper owner or proprietor; but nothing herein shall be construed as preventing an owner of land from constructing a dike or levee along the bank of a natural watercourse to repel flood water from such natural watercourse: Provided, That the provisions of this act shall apply only to lands used for agricultural purposes and highways lying wholly outside the limits of any incorporated city.” (R. S. 24-105.)
Defendant argues that plaintiff is not entitled to complain of this dike under the rule announced in Thompson v. McDougal, 103 Kan. 373, 175 Pac. 157, because of some wrongdoing on his own part. The record shows nothing of that sort. Plaintiff was entirely within his rights in cleaning out the channel and in piling and scattering the debris on both banks of the creek. In so doing he did not create a solid levee. The only levee constructed by plaintiff was a short one along the right bank of the stream at and near the point where it enters the land of defendant. This short levee was lawfully constructed by plaintiff (R. S. 24-105, 24-106) as was also that part of defendant’s levee on the left bank of the creek opposite thereto. Defendant concedes that the statute accorded plaintiff that right, but argues that “likewise under the same section the defendants had a right to build their dike in order to repel flood waters.” Quite true, but not across the natural course of drainage, and to the detriment of plaintiff as the upper landowner. (Clements v. Phœnix Utility Co., 119 Kan. 190, 237 Pac. 1062.) Defendant’s argument is predicated on the assumption that plaintiff did something on his land which he had no right to do and which in turn justified defendant in his plain breach of the statute. So far as plaintiff’s drainage activities are concerned, he not only had a right to clean the debris out of the channel but to straightén it, and this record does not show that plaintiff trenched upon defendant’s rights in any respect.
Attention is repeatedly directed to that part of finding No. 9 which says that prior to the work done by plaintiff to improve the drainage of Lost creek, when more water came down the creek than it could carry, most of it passed over plaintiff’s land to the southwest. The same finding noted the fact of present concern, however, which is that sometimes, when the flood waters were higher than common, part of it found an outlet through the depression which extended into defendant’s land. (Skinner v. Wolf, 126 Kan. 158, 266 Pac. 926.) That outlet no longer exists because of defendant’s dike. The sum and substance of the trial court’s judgment is that defendant must lower that dike. That judgment is eminently fair to defendant. It did not order the complete demolition of the dike. It only ordered that the dike be lowered one foot in height on the north 150 feet of that part of it which turns entirely away from the creek and crosses the swale which in times of unusually high water furnishes the natural outlet to water in plaintiff’s alfalfa field.
Defendant also contends that plaintiff’s evidence did not show damages sufficient to justify the court in granting him equitable re lief. That point, however, is foreclosed because of the limitations of this appeal.
Another suggestion is based upon the settlement of the first lawsuit between these litigants in 1926. However, as that lawsuit was dismissed without prejudice and the terms of its settlement are not before us for review, except as indicated in the findings of fact, it cannot be said as a matter of law that the settlement of 1926 precluded the form and substance of the judgment entered in the instant case.
At the beginning of his brief, defendant postulated for our consideration the question whether defendant was entitled to relief under his cross petition. In his cross petition he asked that plaintiff be “compelled to restore Lost creek upon his premises substantially to the same condition in which it was at the time he acquired title.” That is to say, the debris plaintiff dug out of the creek bed should be scraped up from both banks and dumped into the creek again; the places where he straightened the channel filled up and the circuitous parts of the channel again opened so that the stream may resume its old course; and that plaintiff be required to remove his short levee opposite defendant’s levee near the place where the creek leaves plaintiff’s land and enters defendant’s land. It needs no argument, we trust, to support a decision that such a cross petition was ill-founded and that the trial court quite correctly disposed of it. Indeed, this phase of defendant’s appeal is not seriously discussed in his brief.
Touching the matter of the division of costs, this being an equitable proceeding where neither money nor property was sought to be recovered, and no showing of abuse of discretion is made, the trial court’s assessment and apportionment of the costs scarcely present a question for appellate review. Plaintiff also in oral argument inveighed against the assessment of half of the costs to him. There is less merit in defendant’s complaint thereat, but under the circumstances the trial court’s order as to the apportionment of the costs will have to stand. (R. S. 60-3706; City of Emporia v. Whittlesey, 20 Kan. 17; Amusement Syndicate Co. v. Martling, 118 Kan. 370, 379, 235 Pac. 126.)
Other points of argument urged against the judgment have been carefully considered, but do not justify further discussion. The limited record open to review discloses no material error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
In this original habeas corpus proceeding petitioner, who is now being detained by the respondent, Herbert R. Nye, Sheriff of Leavenworth County, pursuant to extradition proceedings initiated by the State of Florida, asks that he be released from the custody of that official.
There is no dispute respecting the basic facts responsible for petitioner s detention. In May, 1948, he pleaded guilty to, and was convicted of, a violation of the criminal laws of the State of Florida, namely, grand larceny, and thereupon was sentenced to serve two years for the commission of such offense in the Florida State Prison. He escaped from that penal institution on August 2, 1948, before the expiration of his sentence and came to Kansas where he was subsequently convicted of third degree burglary in the district court of Russell County and sentenced to the Kansas State Penitentiary for a term of from one to five years. When released from thát institution he was immediately apprehended by the respondent under authority of a warrant, issued by the governor of this state pursuant to the extradition proceeding to which reference has been heretofore made, directing such official to deliver him into the custody of duly designated and commissioned agents of the State of Florida. Before full compliance with the directions of such warrant petitioner commenced this proceeding with the result he is still in the respondent’s custody.
The record'before us is not as complete as it might be from the standpoint of pleadings. However, when examined, it may be said they raise the issue of the legality of the petitioner’s detention. Moreover the merits of that question were argued to this court when the case was presented, hence the cause can be determined on that basis.
Nothing would be gained by reciting allegations of the petition or detailing the contentions advanced by the petitioner in support thereof. So far as we have been able to determine all such allegations and contentions are predicated upon the premise that alleged irregularities in the course of the trial resulting in his Florida conviction, i. <?., failure of the court (1) to appoint him counsel, (2) to corroborate his plea of guilty by the sworn testimony of witnesses, and (3) to require the prosecuting attorney to be sworn before testifying as a witness, afford sound grounds for the issuance of the writ prayed for. This contention lacks merit and cannot be upheld because of our decisions which are directly to the contrary. See, e. g., the opinion in our recent case of Ryan v. Sheriff of Leavenworth County, 175 Kan. 159, 160, 259 P. 2d 172, which reads:
“. . . It is not the province of the Kansas courts to go behind the governor’s warrant to inquire into alleged irregularities in the courts of the demanding state. (See, Powell v. Turner, 167 Kan. 524, 207 P. 2d 492, certiorari denied 338 U. S. 835, 70 S. Ct. 41, 94 L. Ed. 509.) . . .”
It must be conceded, as respondent points out, that before the governor of the asylum state can lawfully comply with the demand for extradition it must appear that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled and that he is a fugitive from the justice of such state. For just a few of the decisions so holding see Powell v. Turner, 167 Kan. 524, 207 P. 2d 492, certiorari denied 338 U. S. 835, 94 L. Ed. 509, 70 S. Ct. 41; Roberts v. Reilly, 116 U. S. 80, 29 L. Ed. 544, 6 S. Ct. 291; Hyatt v. Corkran, 188 U. S. 691, 47 L. Ed. 657, 23 S. Ct. 456; Munsey v. Clough, 196 U. S. 364, 49 L. Ed. 515, 25 S. Ct. 282.
The only question remaining is one which counsel representing the respondent have raised out of fairness to the petitioner. In this connection it is suggested that although he did not do so directly it may be petitioner intended to claim that in view of the provisions of 18 U. S. C. A. 3182 the extradition papers submitted to the governor of this state must include the copy of an indictment found against him or in lieu thereof a positive affidavit charging him with commission of the crime of grand larceny. There are many sound decisions, with which we agree, warranting a conclusion the requirements of the foregoing section of the Federal Code have been complied with where — as here — the statute of the demanding state provides for prosecutions by information, verified as presently related, and where — as is also true here — a copy of the information containing a verification by the prosecuting attorney, stating in substance that the allegations as set forth in that instrument had been sworn to as true and that if true they would constitute the offense (grand larceny) therein charged, is included in the requisition papers presented by the demanding state. See, e. g., Matter of Strauss, 197 U. S. 324, 49 L. Ed. 774, 778, 25 S. Ct. 535; Pierce v. Creecy, 210 U. S. 387, 52 L. Ed. 1113, 1121, 28 S. Ct. 714; Munsey v. Clough, supra; Marbles v. Creecy, 215 U. S. 63, 54 L. Ed. 92, 30 S. Ct. 32; People v. Enright, (112 Misc. Rep. 568) 184 N. Y. S. 248; State ex rel. Treseder v. Remann, 165 Wash. 92, 4 P. 2d 866, 78 A. L. R. 412; Stark v. Livermore, 3 N. J. Super. 94, 65 A. 2d 625; People v. Baker, 306 N. Y. 32, 114 N. E. 2d 194.
Without more, we think the authorities heretofore cited compel the conclusion the involved extradition papers were in proper form and preclude the issuance of the writ on any of the grounds relied on by the petitioner, including the one suggested by the respondent. Re that as it may we are not required to base our decision no writ shall issue entirely upon that premise. The record reveals that the extradition papers submitted, properly authenticated by the governor of the demanding state, included an affidavit, verified by the head of the prison department of that state which definitely established the petitioner’s conviction, his sentence, his incarceration in the Florida state prison, and his escape from that institution before expiration of his sentence in violation of the laws of that state. In the face of that affidavit, which the petitioner does not even dispute, there can be no doubt as to petitioner’s status at the time of the issuance of the warrant under which he is now held in custody. He stood charged with a crime and he was a fugitive from justice. See, Tines v. Hudspeth, 164 Kan. 471, 477, 190 P. 2d 867, where it is said:
“. . . Under numerous decisions, within the meaning of such terms as used in the constitution and the criminal code, a person is ‘charged with crime’ where prosecution has been initiated, pursued to judgment of conviction and sentence has not expired (18 U. S. C. A., § 662, note 22; U. S. C. A. [Const.], art. 4, §2, clause 2, note 9). He is also a ‘fugitive from justice.’ (18 U. S. C. A., § 662, note 8; U. S. C. A. [Const.], art. 4, § 2, clause 2, note 15.)”
In view of section 62-729, G. S. 1949, (of the Uniform Extradition Act), contemplating that a demand for extradition from another state shall be recognized by the governor of this state when supported “by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement,” we have little difficulty in concluding establishment of petitioner’s status in the manner above indicated is all that was necessary to sustain the validity of the warrant under which he is now held in custody and require compliance with the directions therein contained relating to his'delivery to the duly designated agents of the demanding state. Without attempting to either exhaust or labor the authorities it may be said ample support for this conclusion will be found upon resort to Powell v. Turner, supra; Thompson v. Nye, 174 Kan. 750, 257 P. 2d 937; Hanson v. Nye, 176 Kan. 373, 270 P. 2d 790; Hughes v. Pflanz, 138 Fed. 980; State ex rel. Treseder v. Remann, supra; Loper v. Dees, Sheriff, 210 Miss. 402, 49 So. 2d 718; 22 Am. Jur., Extradition, 265, 267, 268 §§ 26, 27, 28; 25 Am. Jur., Habeas Corpus, 195 § 69; 35 C. J. S., Extradition, 323, 332, §§ 9, 14; 39 C. J. S., Habeas Corpus, 548 to 558, inch, § 39.
The writ is denied. | [
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|
The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the trial court granting a temporary injunction and appointing a receiver.
The petition, after stating the official capacity of the attorney general, alleged that the defendants, Mr. and Mrs. L. W. Redmond, and George Miller, were engaged in the business of lending money in small amounts to poor and necessitous residents of Kansas at usurious rates of interest of from 100 to 600 percent per annum, under the name of Atlas Finance, with offices in Wichita, and had in their custody and control certain records, notes, contracts and other property, and that the conduct of such business constituted a common nuisance. The Atlas Finance Company was a successor to the Metro Finance Corporation, which formerly conducted business in Wichita, and had since been dissolved. The interests of Metro were purchased by defendant George Miller. There was outstanding a large number of loans made by the defendants, the loans having been made at illegal and usurious rates of interest, as aforementioned, and the loans could not be fully, adequately, and completely adjusted by remedy at law. Unless a receiver was appointed, there would be a great multiplicity of vexatious and unfounded actions to collect the usurious interest, many of which actions the borrowers would be unable on account of their poverty and lack of knowledge as to their rights under the laws of Kansas to defend. There was imminent danger of defendants disposing of their property to persons or corporations not subject to the jurisdiction of the court, and that a receiver should be appointed by the court with full power to take immediate charge of all the assets, records, notes, contracts and other property of said business. The petition prayed that a restraining order issue forthwith and, when returned, a temporary injunction issue, a receiver be appointed, and as final relief that a permanent injunction issue, restraining and enjoining the defendants, their successors, assigns, agents and employees from lending money in the state of Kansas at a rate of interest greater than permitted by the laws of this state. On the same date the petition was filed, the court issued its restraining order in compliance with plaintiff’s request. Summons was issued and served upon the defendants Redmond, only. The court set the cause for hearing upon the temporary injunction and the appointment of a receiver, and subsequently on December 10, 1953, the Redmonds being present in person and by their attorneys, evidence was taken on the petition for a temporary injunction and for the appointment of a receiver. At the conclusion of plaintiff’s evidence, defendants Redmond demurred on the ground that plaintiff’s evidence was insufficient to sustain the relief sought. The trial court overruled defendants’ demurrer and granted a temporary injunction against defendants Redmond, doing business as Atlas Finance Company, and appointed a receiver. A portion of the order reads as follows:
“It is Further Ordered, Adjudged and Decreed by the Court that a temporary .injunction issue in personam against the defendants . . . other than the defendant, George Miller; and said defendants are enjoined and restrained from collecting the charges or brokerage contracts outstanding, which charges and brokerage contracts are illegal and a violation of the usury laws of the state of Kansas.
“It is Further Ordered, Adjudged and Decreed by the Court that Henry Edwards be and he is hereby appointed receiver for the defendants, Mr. and Mrs. L. W. Redmond doing business as Atlas Finance Company, and upon filing bond in the sum of $1,000.00, to be approved by the court, and filing his oath' and qualifying as receiver, the said Henry Edwards, receiver, is directed to take possession of tire notes, contracts, papers and instruments of any kind or nature or personal property belonging to Atlas Finance Company, and said receiver is ordered and directed to ascertain the names of the parties having loans, the amount of principal, the amount of the loan of each borrower and the interest or other fees of any kind charged on each loan and report such findings to the court.”
It is from this order of the trial court granting the temporary injunction and appointing a receiver that defendants Redmond appeal.
Defendants’ specifications of error are five in number. We will first consider and dispose of their claim that the trial court erred in overruling the demurrer to plaintiff’s evidence. In doing so, we shall give full application to the established rule that in the determination of such question all facts proved by plaintiff must be accepted as true and given the benefit of all favorable inferences to be reasonably drawn therefrom, and not weigh any part that is contradictory nor weigh any differences between the direct and cross examination and, if so considered, there is any evidence which sustains plaintiff’s case, the demurrer should be overruled. (Tuggle v. Cathers, 174 Kan. 122, 254 P. 2d 807; In re Estate of Hayden, 174 Kan. 140, 254 P. 2d 813; West’s Kansas Digest, Trial, § 156, Appeal and Error, §866(2) and §997(2); 5 Hatcher’s Kansas Digest [Rev. Ed.], Trial, §§ 147 to 151, incl.; I Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, § 488.)
Being cognizant of the mentioned rule we will consider plaintiff’s evidence consisting of some fifty pages of the abstract and a number of exhibits. No useful purpose would be served by narrating all of the testimony. Witness Burrow stated that he obtained a $30 loan from the defendants upon which he was required to repay $42 in eight payments of $5.25 each, and also a loan of $50 upon which he was required to repay $68 in payments of $8.50 each two weeks. Witness Myers testified that he obtained a $50 loan from the defendants upon which he was to repay $66 in weekly payments of $5.50 each. Witness DeFore testified that he obtained a loan from the defendants of $50 upon which he was required to repay $66 in monthly payments of $22 each. ' The defendant, L. W. Redmond, was called as a witness for the plaintiff, and testified concerning the various transactions, which evidence tends to corroborate that of the other witnesses for the plaintiff, concerning the terms of their loans. The court had before it the written instruments and records of the defendants to verify the loans of the respective witnesses and, in addition, plaintiff called Professor Read, head of the Mathematics Department of the University of Wichita, to testify concerning the amount of interest that would be paid to and collected by the defendants in the various transactions. He testified that the loan of $50 upon which the borrower would repay $66 in three months of $22 each month was equivalent to 15 percent per month, or 180 percent per year, but because of the effect of compounding monthly, would amount to 435 percent per year. The loan of $30 upon which the borrower would repay $42 in payments of $5.25 each two weeks in eight payments, amounted to between 8 and 9K percent for each two-weelc period, and without the effect of compounding interest would result in between 212 to 250 percent on a yearly basis. The loan of $50 where the borrower was to repay $68 over a 16-week period of $8.50 each two weeks, would amount to a rate of interest of from 7 to 11 percent for each two-week period, and without the effect of compound interest resulted in 192 to slightly over 300 percent per year. Without further detailing the facts, we are of the opinion they were sufficient to make out a prima facie case and the trial court properly overruled defendants’ demurrer thereto.
It is here noted that defendants filed no motion for a new trial in the district court. Their four remaining specifications of error relate to mere trial errors.
We have decided many times that in the absence of a motion for new trial, mere trial errors are not open for appellate review. These include rulings of the trial court on the admission, exclusion, or sufficiency of evidence, and our reports are laden with decisions supporting this rule. (Union Nat'l Bank v. Fruits, 124 Kan. 440, 260 Pac. 638; Morgan v. Morgan, 146 Kan. 880, 73 P. 2d 1105; Billups v. American Surety Co., 173 Kan. 646, 652, 251 P. 2d 237, and other decisions may be found in West’s Kansas Digest, Appeal and Error, § 281; I Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, §§ 366, 372.) It is well settled that in the absence of a motion for new trial, the questions which this court can consider are only those which arise upon the pleadings and upon the facts found, and where no motion for a new trial is filed, review on appeal is limited to the question whether the judgment is supported by the pleadings and findings of fact, and inquiry will not be made as to whether the evidence supports the findings of fact. (Jelinek v. Jelinek, 161 Kan. 362, 168 P. 2d 547.) The record before us, therefore, presents no further legal question for our determination.
The judgment of the lower court is affirmed. | [
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|
The opinion of the court was delivered by
Wedell, J.:
Plaintiff filed an action in the city court of Wichita to recover damages alleged to have resulted in an automobile collision. Defendants prevailed and plaintiff appealed to the district court on October 10, 1949.
The pleadings in the city court consisted of an original and an amended verified bill of particulars and a verified answer which was a general denial. On November 5, 1949, defendants undertook to reform the pleadings and filed a motion in the district court to strike certain paragraphs of the bill of particulars. The grounds of the motion are not disclosed. The court overruled the motion in part and sustained it in part. That ruling was made May 28, 1951, one year, six months and twenty-three days after it was filed. On July 17, 1951, plaintiff filed a new bill of particulars in conformity with the court’s order. In a letter transmitting it to the clerk of the district court appellant enclosed a copy to defendants’ counsel on which copy he included a postscript which read,
“I would appreciate it if the defendant would file an answer in this case.”
Neither a demurrer nor an answer was filed to the amended bill of particulars. Nothing further appears to have happened insofar as the record before us discloses until the October, 1953, term of court. On October 7, which was not the opening day of the October term, the court, on its own motion, dismissed the action without prejudice at plaintiff’s cost and ordered that execution issue. No" grounds for dismissal are stated in the order. On October 20, 1953, plaintiff filed a motion to reinstate the case which reads:
“1. This case was praeciped for trial and since that time, so far as plaintiff or plaintiff’s attorneys know, the case has not been placed on the trial docket and plaintiff has been waiting an opportunity to try the case and would like to have the dismissal set aside and the case reinstated and set for trial.”
The motion was overruled. No reason for the order is stated. On October 28 plaintiff filed a supplemental motion to reinstate which was:
“1. When the original Motion to Reinstate was filed, plaintiff’s attorney was of the opinion that the case had been praeciped for trial, but the praecipe evidently was not filed nor made, but this is mentioned to show that there has been no intention on the part of plaintiff or plaintiff’s attorney to have the case dismissed.
“2. For further reason, plaintiff states that this case cannot be dismissed ‘without prejudice’ for the reason that it is an appeal from the City Court wherein judgment was rendered against plaintiff and that if this case is dismissed it will be impossible for plaintiff to file the same again. This means that the dismissal is ‘with prejudice’.
“3. There is no authority in the rules of this court effective January 14, 1952, which would authorize the dismissal of this case at this time.
“4. The action of the court in dismissing the case without prejudice, without notice to the plaintiff, is contrary to the established custom which has been to set the cases for trial and if the trial is not proceeded with by plaintiff then it would be dismissed for lack of prosecution.
“5. The procedure is contrary to G. S. 1949, 60-3105, which provides for dismissal by the court without prejudice where plaintiff failed to appear on the trial.
“6. The action of the court in dismissing this case was arbitrary.
“7. Plaintiff states that he desired to offer evidence on this hearing to support this motion and also to supplement the original motion to reinstate.”
The second ground of the above motion has been abandoned on appeal. On the hearing of the last motion plaintiff introduced five exhibits which the abstract discloses were as follows:
“Plaintiff’s Exhibit 1 is a letter dated November 29, 1949, from plaintiff’s attorney to Mrs. Wayne Parsons, the court reporter in the City Court at the time of the trial of this action in said court, asking for a transcript of the testimony of Charles Rank and a transcript of the testimony of Ruth Reddington.
“Plaintiff’s Exhibit 2 is another letter from plaintiff’s attorney dated December 5, 1949, to Mrs. Wayne Parsons thanking her for her letter of December 2, 1949.
“Plaintiff’s Exhibit 3 is the letter from the reporter to Mr. Sargent dated December 2, 1949, stating that it would be at least two weeks before she could get her books out of storage (she had married and moved from Wichita), that she had a deposition to be done first, and that it would then not take long, and that she would forward the transcripts when they were finished.
“Plaintiff’s Exhibit 4 is a letter dated March 16, 1950, from Sargent to Mrs. Parsons inquiring about the transcript.
“Plaintiff’s Exhibit 5 is a letter dated July 16, 1951, from Sargent to the Clerk of the District Court, enclosing the Second Amended Bill of Particulars for filing. A postscript on the copy thereof which was sent to Hugh Quinn reads as follows: T would appreciate it if the defendant would file an answer in this case.’ ”
Counsel for plaintiff advised the court he was anxious to try the case.
The journal entry covering the court’s ruling of November 2,1953, reads:
"The court, being duly advised in the premises, finds that said Supplemental Motion to Reinstate should be, and the same hereby is overruled.
“It Is so Ordered.”
Plaintiff has appealed from the orders dismissing the action, denying his motions to reinstate and from the order striking a portion of his bill of particulars.
Appellant quotes rules of the district court of Sedgwick county adopted January 14,1952, as follows:
“ ‘RULE No. 2. Praeciped Cases on Civil Jury Trial Docket.
“ ‘After the issues are made up between two or more parties in any case triable to a jury, either party may praecipe the case upon the jury trial docket by praecipe and not otherwise. Copy of the praecipe shall be mailed immediately to the adverse parties or their attorneys of record. [Appellant’s emphasis.]
“ ‘RULE No. 3. Assignment of Cases and Place of Trial.
“ ‘All cases filed with the Clerk of the District Court shall be assigned to the various divisions by the Preliminary Judge drawing the case numbers given by the Clerk from a container.
“ ‘When a case is thus assigned the Judge of the division to which it is assigned shall have full charge of the case, except when the Judge of the division to which the case has been assigned is on vacation or is ill.
“ ‘Whenever a case is dismissed and refiled, it shall be reassigned to the division where pending when dismissed.
“ ‘RULE No. 4. Assignment of Cases for Trial.
“ ‘On the opening day of each term the judge of each division shall assign state cases for his division for trial during the jury session of that term.
“ ‘All civil jury cases praeciped on the civil jury trial docket shall stand for trial in the order in which they are praeciped on the trial docket in the division to which the cases have been assigned, or in the division to which the case has been transferred. [Appellant’s emphasis.]
“ ‘It shall be the duty of every attorney having any cases upon the criminal docket to attend the call of the docket.’ ”
Appellant also states there is no rule of court relating to dismissal of an action for lack of prosecution. This statement is not denied by appellees.
Appellant’s contentions may be summarized as follows: (1) At the time the action was dismissed appellees had filed no answer to the amended bill of particulars; (2) the court’s action was contrary to the rules of the court; (3) it was contrary to custom in that court; (4) it will result in undue hardship to appellant; (5) it constituted an abuse of judicial discretion; and (6) violated the intent and purpose of G. S. 1949, 60-3105, which reads:
“An action may be dismissed without prejudice to a future action:
“First. By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.
“Second. By the court where the plaintiff fails to appear on the trial.
“Third. By the court for want of necessary parties.
“Fourth. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.
“Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.
“In all other cases, upon the trial of the action the decision must be upon the merits.”
Appellant insists the action could not have been dismissed on any of the statutory grounds. He emphasizes that: No answer had been filed to the second amended bill of particulars; the case had not been placed on the trial docket; it had never been set for trial for any date; he did not fail to appear on the trial; he received no notice the action would be dismissed unless it was tried by some designated date and he disobeyed no rule of the court or any order of the court concerning tire proceedings in the action.
Appellees rely on City of Wichita v. Catino, 175 Kan. 657, 265 P. 2d 849. In that case two criminal appeals from the city court appeared on the October, 1952, district court docket and were set for trial on December 8, 1952. On that date they were passed over the term and placed on the docket for January 12, 1953, that being the first day of the January, 1953 term. All concerned appeared on that day and announced ready for trial. There was disagreement relative to what was done thereafter. We held we were obliged to rely on the journal entry which clearly disclosed the cases were continued to March 9, 1953. The defendant failed to appear on that date. The jury and the city were present. The case was dismissed for lack of prosecution.
We concluded the district court did not abuse its discretion. Factually, however, there is little, if any, similarity between that and the instant case.
G. S. 1949, 61-1001 provides for appeals from justice of the peace and city and county courts in civil actions and states that it shall be by notice of appeal.
The pertinent part of G. S. 1949, 61-1003 provides:
“The district court shall try and determine the same as if originally filed therein, and may, in its discretion, order further or amended pleadings to be filed therein.”
It is well established that appeals from justice of the peace or city courts are tried de novo in the district court; that rules of pleading are of little importance and can hardly be enforced in that court and therefore pleadings may be completely reformed in the district court. (Zimmerle v. Felzien, 121 Kan. 34, 245 Pac. 1024; Bankers Commercial Corp. v. Markl, 148 Kan. 789, 84 P. 2d 896.) In the Zimmerle case it was said:
“Before the time set for the trial de novo, the defendant with much propriety might have applied to the district court for an order requiring the plaintiff to reform his pleadings so that his cause of action might more clearly have been stated, or so that its defects might have been so clearly apparent that they could be effectively challenged by demurrer.” (p. 37.)
In the instant case appellant contends, as will later appear, the court struck an essential portion of his cause of action in response to appellees’ motion. Whether appellees intended to demur to the second amended bill of particulars at some later time does not appear and we need not speculate on that subject. At any rate no demurrer or answer was ever filed and the time for appellees to answer, of course, had long expired. (G. S. 1949, 60-726.) It was appellees, and not appellant, who were in default on the pleadings.
We have given careful consideration to the question whether the answer filed in the city court properly might be regarded as a continuing answer after the district court reformed the amended bill of particulars in compliance with appellees’ motion. We find such a conclusion untenable in view of the statute which makes the trial in the district court entirely ele novo and leaves nothing of the proceedings in the city court. (Bankers Commercial Corp. v. Markl, supra, p. 792, 794.)
Irrespective, however, of the foregoing we would not be justified in concluding the parties, or the district court, regarded the issues as having been joined. The district court, in conformity with statute, undertook to reform and ordered that the amended bill of particulars be reformed. Appellant complied. Appellees filed nothing. Under the court’s own rules, previously quoted, the case could not have been praeciped for trial by any of the parties until the issues were joined. G. S. 1949, 60-2932 provides:
“Actions shall be triable on the issues of fact in ten days after the issues are made up. Issues of law and motions may be tried by the court or judge in termtime or vacation, at such times as the court or judge may fix, after reasonable notice, which shall not be less than three days." (Our italics.)
G. S. 1949, 60-2930 reads:
“A trial docket shall be made out by the clerk under the direction of the court, on which assignments of causes for trial on particular days shall be so made as to give reasonable notice to the parties of the days on which such causes are to be heard." (Our italics.)
As previously stated this case was not assigned for trial. It was never advanced beyond the appearance docket. The record here discloses no notice to the parties to join issues for trial by any date or that for failure to do so the action would be dismissed. Neither the journal entry of dismissal nor the order refusing to reinstate the action discloses a previous notice of any kind was given.
Except on the opening day of a term on which the court is permitted to act as provided by statute it seems clear the various statutes contemplate notice shall be given concerning important court action. We do not mean to say a district court does not possess inherent discretionary power, independent of statute, to dismiss a case for want of prosecution, under circumstances warranting dismissal. We have held, absent abuse of discretion, the court has such power. (City of Wichita v. Catino, supra.)
This court is in complete harmony with the purpose of courts to clear their dockets of old cases in order to save time and expense and to expeditiously dispatch the court’s business. Such a practice is commendable and should be encouraged. On the other hand it is highly important that the drastic procedure of dismissing an action involving rights of a citizen should be exercised with utmost care. We know of no sound reason why district courts should not adopt and adhere to a definite rule of notifying counsel that cases of long standing, irrespective of whether they are at issue, will be dismissed unless prosecuted by a stated time. But to sanction the dismissal of a case, without notice, which has not been assigned to the trial docket and especially to refuse, without condition, to reinstate it under circumstances heretofore narrated impresses us as constituting a drastic remedy which may easily result in serious abuse of power. We are advised it is the custom of the judges of the district court of Sedgwick county to give notice before dismissing cases. If that be true and the custom had been followed in the instant case that fact could have been indicated in the order of dismissal or in the order refusing to reinstate the action. Nothing in the record reflects such notice. In consideration of all the circumstances in this particular case we think the court’s action was too robust.
We come now to the question whether the court properly struck a certain allegation in appellant’s first amended bill of particulars which had been filed in the city court. The action involved a collision of automobiles in an intersection of streets in the city of Wichita. The allegations which appellees moved to strike were:
“3. That at the time and place aforesaid, the defendant Rank, while operating the said motor vehicle of the defendant Arnold, was under the influence of intoxicating liquor.
“5. (b) In operating said truck while under the influence of intoxicating liquor, in violation of Section 8-530, G. S. 1947 Supp.”
The court struck all of paragraph 5 (b) and overruled the motion as to paragraph 3. The court well might have stricken that portion of paragraph 5 (b) which alleged “while under the influence of intoxicating liquor” for the reasons such fact was already alleged in paragraph 3. Appellant, however, had a right to allege appellees’ conduct constituted a violation of a specific statute, without quoting it, if appellant claimed such violation constituted one of the proximate causes of the collision. (Conrad v. Dillinger, 176 Kan. 296, 270 P. 2d. 216.) That such violation was one of the proximate causes of the collision was later alleged in the pleading. That part of paragraph 5 (b), therefore, should not have been stricken.
The orders complained of are reversed with directions to reinstate the action and to proceed therewith according to the views herein expressed. It is so ordered.
Price, J., dissents from subparagraph (a) of paragraph 4 of the syllabus and the corresponding portion of the opinion. | [
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The opinion of the court was delivered by
Smith, J.:
This is an appeal from an order of the trial court modifying a child custody judgment by awarding the custody of three children to the plaintiff mother when the original judgment had awarded custody of these three children and three others to the defendant father.
The divorce decree was entered on October 12, 1949. The action was by the wife against the husband. The decree found the allegations of the petition to be true and awarded the wife the divorce. The decree stated that by reason of the “present illness” of the wife the custody of the six children was awarded to the husband, with the right to visit at reasonable times to the mother.
The motion for a change alleged the father was not a fit person to have custody because he had violated the order of the court by using his influence to try to teach the children to hate their mother, had refused to allow them to wear clothing or to accept gifts she had given them, had threatened to kill them if custody was changed, had refused to let her visit with them, had had various women come in to care for them.
The court modified the original judgment by awarding the custody of the twins, aged seven, and a little girl aged five to the mother. This order was made on June 16, 1953. On June 18, 1953, the husband filed his motion for a new trial. In this motion he stated his grounds to be: abuse of discretion of the trial court in finding from the evidence offered by the plaintiff that conditions had changed since the original hearing; because of erroneous rulings of the district court; because of the trial court’s ruling that testimony on behalf of the defendant relative to the care the children were receiving was not necessary, for the reason the plaintiff had not questioned the manner and welfare of the children or contested in any way the manner in which they were being reared by defendant; because the trial court did not require medical testimony relative to changed conditions; because the trial court at the conclusion of plaintiff’s testimony overruled the motion of defendant to deny the plaintiff any relief; because the trial court abused its discretion by rendering the decision, by not requiring evidence to be introduced as to the best interest of the children.
This motion was overruled on August 31, 1953. The notice of appeal was filed on October 13, 1953, and was from the order of June 16, 1953, changing custody, and from the order of August 31, 1953, overruling the motion for a new trial.
The specifications of error are that the trial court erred in overruling defendant’s demurrer to plaintiff’s evidence; in refusing to hear- medical evidence as to plaintiff’s psychiatric condition; in grounding solely upon the testimony of laymen a finding that plaintiff’s psychiatric condition had changed; in making a finding of changed medical circumstances without any competent evidence to support it; in changing the custody of the three younger children from the defendant to plaintiff in view of the court’s own statement —that defendant was not shown to be an incompetent or improper custodian; in changing the custody of the three children from the defendant to the plaintiff without hearing any competent evidence of changed circumstances since the original custody order; and in overruling defendant’s motion for a new trial.
These specifications will, require an examination-of the evidence on the motion for change of custody. It will be remembered the original journal entry stated that on account of the present illness of the plaintiff, the custody of the six children would be awarded to the defendant even though the plaintiff was being given a divorce. At the hearing on the motion for change of custody the plaintiff testified that she lived at Shawnee, Oklahoma, in a three-bedroom house; that she had had difficulty in being able to visit her children and on occasions had not been permitted to see them. Her counsel in his opening statement stated that at the time she obtained the divorce she was ill and under a psychiatrist’s care and was about to have a nervous breakdown. In her testimony she testified that she at that time was ill and she had recovered from that illness. On redirect examination she testified that she had just gotten out of the hospital when she obtained her divorce; that she had been in the hospital for a nervous breakdown; that in answer to a question she testified she would like to have custody of all the children but especially' the three younger ones; she has now remarried. Her present husband testified that he was willing to assume the responsibilities of the children and their home was harmonious.
At this point plaintiff rested.
The defendant demurred to her evidence on the ground that there had been no evidence of any change in circumstances sufficient to warrant the court in changing the custody. This demurrer and motion for judgment were overruled.
The defendant then testified that prior to the divorce his wife had been in the hospital for 106 days. There then ensued a colloquy between the court and counsel as to whether defendant should introduce evidence on the question of how he was caring for the children. The court remarked there had been no complaint as to that. He testified that four of the housekeepers he had had were in the courtroom. After an argument of counsel the trial judge stated that he would like to have plaintiff testify again as to whether she was still under a doctor’s care. She was put on the stand again and said she had been under a doctor’s care in Wichita for a little over a year after the divorce and that Doctor Adams took care of her and he finally discharged her. She testified she had not seen him for three years.
In response to a question as to whether she felt she was cured she said:
“Oh, yes I wouldn’t have asked for the children if I hadn’t thought I was.”
Her husband testified when he first knew her she was nervous but was getting along fine and he would say she was cured.
At this point the trial judge stated he was convinced that plaintiff had shown a change of circumstances and was not the same person she was at the time the divorce was granted. Counsel for the defendant asked if medical testimony should not be presented. The court replied in the negative. The court found that circumstances had changed since the divorce was granted and since custody was awarded to the father and the custody of the three younger children would be changed from the defendant to the plaintiff. This order was made on June 16, 1953. On June 18, 1953, defendant filed the motion for a new trial, which has been detailed heretofore in this opinion.
At the hearing on the motion for a new trial the defendant introduced a psychiatrist who had taken care of plaintiff in 1948. He testified that his diagnosis of her condition was paranoiac schizophrenia; that when he examined her she was not in his opinion-qualified to assume custody of small children; that in his opinion it was unlikely that she could have by the time of the hearing achieved a mental condition qualifying her to assume the custody of small children; that in his opinion laymen were not qualified to diagnose psychiatric illnesses.
On cross-examination he testified that the last time he had seen plaintiff was in April, 1949. He stated the illness was one where the patient became confused and disoriented, oftentimes having delusions or imaginary thoughts and was quite suspicious and felt they had been done an injustice. He said they sometimes recover with treatment and management.
At the end of this testimony there was a colloquy between the court and counsel on both sides. The trial court asked counsel for plaintiff if she would submit to an examination by two psychiatrists, one of her choosing and one of the defendant’s choosing. The plaintiff demurred somewhat to this. Several psychiatrists’ names were suggested and she evinced somewhat a reluctance to be examined by a psychiatrist. She said “I was in the hospital a long time — I will admit — I am not stupid.” When she was asked what she thought of Doctor Poling she said “No, not Doctor Poling.”
The motion for a new trial was overruled. Hence this appeal.
The specifications of error have already been set out in this opinion.
Defendant argues first the trial court erred in overruling his demurrer to plaintiff’s evidence. His first point on this is that non-experts are not competent to testify as to the existence or nonexistence of psychiatric diseases. He argues this as though this record showed that there had been evidence and a finding in the original divorce action that plaintiff was suffering at that time from some psychiatric disease. The record is silent on this except for the trial court’s observation that on account of the plaintiff’s “present illness . . . she is unable to look after . . . the children at the present time, and that the care and custody of said children should be granted unto the defendant” and the statement of her counsel and her testimony on this hearing that at such time she was suffering from a nervous breakdown. This does not warrant an assumption that plaintiff had the burden of proving that she had recovered from a psychiatric disease. She did testify that after her divorce she had been under the care of a psychiatrist for a year and he had discharged her. The trial court was warranted in assuming from this that she had been discharged as cured. Defendant argues the testimony of the psychiatrist offered at the motion for a new trial should be considered as though it had been offered at the trial of the motion for a change of custody. No formal offer of such evidence was made at the trial. Counsel only casually asked the trial judge if he thought there should be any medical testimony. Should the trial court have treated this evidence as though it had been offered on the hearing of the motion which he had authority to do? (See G. S. 1949, 60-3005.) Still such evidence would not have required the modification of the order changing the custody. The psychiatrist who took the stand testified as to his opinion that plaintiff had been afflicted four years before with paranoiac schizophrenia. The court was not required to find this opinion was a correct one. Furthermore, the court was entitled to consider that this diagnosis had been made upon observation three years before and other doctors had treated her since and one of them had discharged her according to her evidence. We do not have a case here where the plaintiff had been adjudged to be afflicted with paranoiac schizophrenia. Obviously the defendant’s position is this — if a psychiatrist testifies that a patient at some time or another was afflicted with a psychiatric disease then there could never be an adjudication that she is not so afflicted without the testimony of another psychiatrist. This is not the law. A psychiatrist’s evidence stands on the same footing as that of any other witness. Here the court saw the plaintiff and had a chance to observe her and her general demeanor and whether or not she was nervous, which seems to have been her only trouble at all times, and there was substantial evidence upon which the court could base this decision that her mental and nervous condition had changed so that she would be able to care for her three younger children.
Next in connection with defendant’s argument that his demurrer should have been sustained, he argues that once a divorced parent has by valid adjudication been granted the custody of minor children, that custody may not thereafter be changed to the other parent without a finding that the original custodian is no longer a fit and proper person to have custody. That is not the law and the defendant has not been able to give us any authority to the effect it is the law. (See Frier v. Lancaster, 169 Kan. 368, 219 P. 2d 358 and Kogler v. Kogler, 163 Kan. 62, 179 P. 2d 940.)
The welfare of the children is always the paramount question. It is a reasonable inference to be drawn from the original custody order in this case that the custody was being given the defendant then only because of the nervous condition of the plaintiff. It would indeed be strange for a court to hold that a mother, who had regained her health and now had a comfortable home ready for the children and a husband who was willing to provide for them, as the plaintiff’s present husband is, could not have the custody of these three younger children simply because the court had once held that the father was a fit and proper person. Quite often it happens that both the parents are fit and proper persons but for some reason or another one parent is not financially able and for some other reason not able to give the younger children the care they should have. The trial court was warranted in finding that these seven-year-old twins and the five-year-old girl would be better off with their mother, than with the father, who is compelled to hire housekeepers to care for them.
An order changing the custody of the children will not be disturbed unless the record shows that the trial court has abused its discretion. There is no evidence in this record that such an abuse of discretion has occurred.
We have not overlooked appellee’s motion to dismiss the appeal but have concluded to consider the appeal on its merits.
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The opinion of the court was delivered by
Price, J.:
This appeal arises out of an attempt to contest an election for a county office.
In the primary election held in August, 1952, Whitson, the incumbent county commissioner of the third commissioner district in Cowley County, was a candidate on the Republican ticket to succeed himself. He was opposed for the nomination by Magnuson. Roberts was a candidate for the Democratic nomination.
Magnuson defeated Whitson and thus became the Republican nominee. Roberts was nominated on the Democratic ticket. Thereafter Whitson became an independent write-in candidate, and in the general election held in November the result as compiled by the ten election boards in the district was: 704 votes for Roberts, 702 for Whitson, and 656 for Magnuson.
Upon the official canvass by the board of county commissioners, sitting as a board of canvassers (G. S. 1949, 25-701), it was found that Whitson had received two more votes than had been credited to him by the election boards of the district, thus giving him a total of 704 votes, the same number that Roberts had received.
Having determined that a tie vote existed, the commissioners proceeded to determine the winner by lot, under the authority of G. S. 1949, 25-703. Roberts won the “toss” of the coin and was declared the winner. In due course a certificate of election was issued to him, he was sworn into office, and has been serving as county commissioner of the third district since January, 1953.
Wifhin the time provided by G. S. 1949, 25-1415, Whitson initiated this proceeding to contest the election and filed his “contest statement” pursuant to G. S. 1949, 25-1411. It reads as follows:
“C. G. Whitson, an elector and resident of Maple township in the County of Cowley and State of Kansas, files this, his statement, with the County Clerk of Cowley County, Kansas, and states that he was a candidate for the office of County Commissioner, Third District, to the election held in said County on the 4th day of November, 1952.
“That the opposing candidates for said office were Albert Roberts and' Reuben Magnuson.
“That as a result of said election, it was declared that a tied vote existed between contestar and Albert Roberts and that each had polled an equal number of votes therein.
“That Albert Roberts, one of the opposing candidates for the same office, was declared elected thereto’ by lot, by the Board of County Commissioners of Cowley County, Kansas, on the 12th day of November, 1952. The board provided by law for the canvassing of the votes cast at said election.
“That it is the contestor’s intention to contest the election of Albert Roberts and to that end contestar states:
(1) That his name is C. G. Whitson and that he is the contestar.
(2) That he is an elector of the County of Cowley, State of Kansas.
(3) That the name of the contestee is Albert Roberts.
(4) That the office contested for is the office of County Commissioner, third district, of said County of Cowley, State of Kansas.
(5) That the said election was held on the 4th day of November, 1952, in said county.
(6) That the particular causes’of contest are as follows:
(a) That errors and mistakes have been made by the boards of judges and canvassers in counting and declaring the result of the election, and that such error and mistake affected the result of the election.
(b) For errors and mistakes of the Board of County Commissioners of Cowley County, Kansas, acting as a board of canvassers of the votes cast at said election, in declaring the result of said election a tie vote and determining the same in favor of the said Albert Roberts, contestee, for the office of County Commissioner, third district of Cowley County, Kansas, at the election so held on the 4th day of November, 1952.
(c) That the board of election judges in Fairview, Harvey, Maple, Ninnescah, Omnia, Richland, Rock Creek, Salem, Silver Creek and Windsor Townships failed and neglected to account for or return to the County Clerk of Cowley County, Kansas, the number of ballots received by them from the said County Clerk, aforesaid, prior to the election, and that the board of election judges, in each of the aforesaid townships, failed to account for or return to the County Clerk of Cowley County, Kansas, the number of blank ballots, sealed up in an envelope as required by law and so marked and endorsed, as clerk, to disclose its contents, and that in said precincts all ballots not used and all ballots spoiled by the voters while attempting to vote, were not returned by the board of judges of election in said townships, to the County Clerk of Cowley County, Kansas, as required by law, the officers from whom all ballots were received.
(d) That the boards of election judges in said county in the following townships, to-wit: Harvey, Ninnescah and Silver Creek failed to count for contestar, votes or ballots which were legally cast for him and which were marked by said boards, void, blank, objected to, or rejected.
(e) That no account whatever has been made of lost, mutilated, destroyed or unused ballots, which would in anywise account for the number of ballots issued and the number turned in.
(f) That void ballots were reported by the following townships in the following numbers: Harvey Township, 5; Ninnescah Township, 12; and Silver Creek Township, 15.
(g) That the following townships report no void ballots: Maple, Omnia, Richland, Rock Creek, Fairview and Windsor.
(h) Said contestar further states that Albert Roberts, contestee, was not legally and lawfully elected or chosen by a majority of the lawful votes cast in said election, to be County Commissioner, Third District of Cowley County, Kansas; nor legally and lawfully entitled to a sufficient number of the lawful votes cast to be declared to have established a tie vote, and that on account of the above mentioned errors, mistakes and irregularity, a correct count of the said votes cast for County Commissioner of the Third District in Cowley County, Kansas, on the 4th day of November, 1952, and a correct canvass of said votes, would affect the result of said election of County Commissioner, Third District, Cowley County, Kansas, and that a correct count of the votes cast at the said voting townships and the precincts thereof, so cast, would affect the result of said election for the office of County Commissioner, and that a correct count of the votes cast at said election on November 4, 1952, in Cowley County, Kansas, would, with particular reference to the Third District thereof, and a correct canvass of the votes so cast at said election, would result in the election of C. G. Whitson, contestor, to the office of County Commissioner, Third District, Cowley County, Kansas, at said election so held on the 4th day of November, 1952.
“WHEREFORE, contestor states that this is one of those classes of cases contemplated in Section 25-1411, General Statutes of Kansas, 1949, which entitles him to contest said election.”
Roberts, the contestee, attacked this contest statement by a motion to dismiss and for judgment, on the ground that it did not state facts sufficient to constitute a cause of action against contestee and in favor of contestor. This motion was considered by all parties- as a general demurrer. Following a number of adverse rulings by the contest court on questions of law, Roberts appealed to the district court. The latter court ruled adversely to his contentions as to the legal sufficiency of the contest statement, and in so doing held:
“The question presented on this appeal is one of law, namely, ‘Does the foregoing statement of contest set forth a valid legal cause or causes of contest as provided by G. S. 1949, 25-1411.’
“This court here and now considers this matter de novo, and makes the following conclusions of law:
1.
“That sub-paragraphs (a) (b) and (h) of Paragraph 6 of the contestor’s statement of contest constitute a valid and legal cause of contest; that otherwise than in these three sub-paragraphs of paragraph 6 of the statement of contest it fails to state a cause of action.
“The motion of the contestee for judgment and to dismiss was properly overruled by the contest board and is now by this court overruled.
“That it is ordered that this proceeding is remanded back to the contest court, and that the court proceed as provided by law.”
From that ruling contestee has appealed to this court.
The contestor, Whitson, has cross-appealed, and alleges error by the district court in permitting contestee to amend his notice of appeal from the contest court to the district court, and in ruling that only subparagraphs (a), (b) and (h) of paragraph 6 of the contest statement allege a cause of action under the statute.
We first proceed to a discussion of the principal appeal, but first deem it necessary to set out certain of our applicable statutes.
G. S. 1949, 25-1415, provides in part:
“The contestor shall file in the office of the county clerk, within twenty days after the day when the votes are canvassed, a written statement of his intention to contest the election, setting forth the name of the contestor, and that he is an elector of the county, the name of the contestee, the office contested, the time of the election, and the particular causes of contest; ...”
G. S. 1949, 25-1411, reads:
“The election of any person declared duly elected to any county office may be contested by any elector of the county—
“First. For malconduct, fraud or corruption on the part of the judges of election in any township, or of any of the boards of canvassers, or on the part of any member of either of .those boards.
“Second. When the contestee was not eligible to the office at the time of the election.
“Third. When the contestee has been convicted of an infamous crime before the election, and the judgment has not been reversed, annulled, or set aside, nor the contestee pardoned, at the time of the election.
“Fourth. When the contestee has given or offered any elector or any judge, clerk or canvasser of the election any bribe or reward, in money, property or thing of value, for the purpose of procuring his election.
“Fifth. When illegal votes have been received or legal votes rejected, at the polls, sufficient to change the result.
“Sixth. For any error or mistake in any of the boards of judges or canvassers in counting or declaring the result of the election, if the error or mistake would affect the result.
“Seventh. For any other cause (though not enumerated above) which shows that another was the legally elected person.”
G. S. 1949, 25-1412, provides:
“The matter contained in the first, fifth and sixth causes of contest shall not be held sufficient to set aside the election unless such causes be found sufficient to change the result.”
G. S. 1949, 25-1416, reads:
“When the reception of illegal or the rejection of legal votes is alleged as a cause of contest, the names of the persons who so voted, or whose votes were rejected, with the townships where they voted or offered to vote, shall be set’ forth in the statement.”
Contestee’s whole contention is that under the law of this state concerning election contests it is necessary that a contestor state facts in his statement of contest sufficient to justify a recount of the questioned ballots; that one seeking to contest is not permitted to make his statement a mere “fishing expedition,” and that failure to allege facts with specific particularity renders the contest statement subject to demurrer.
In this connection contestee calls our attention to the fact the statement in question is “modeled” after that appearing in Lawrence v. Wheeler, 77 Kan. 209, 93 Pac. 602, which was held to be sufficient, but that later decisions of this court (Free v. Wood, 137 Kan. 939, 22 P. 2d 978; Campbell v. Ramsey, 150 Kan. 368, 92 P. 2d 819; Hansen v. Lindley, 152 Kan. 63, 102 P. 2d 1058; Johnson v. Russell, 160 Kan. 91,159 P. 2d 480, and Johnson v. Russell, 161 Kan. 203, 166 P. 2d 568), while not specifically overruling what was said in the Lawrence case, do so by inference and implication, and it is contended these decisions require more particularity in setting out the facts in a contest statement.
As already stated, the court held that subparagraphs (a), (b) and (h) of paragraph 6 of the contest statement, were sufficient to state valid and legal causes of contest, and the correctness of that ruling is the question for decision.
The statutory grounds (G. S. 1949, 25-1411) for contesting an election to a county office have already been set out, supra. The contest statement does not allege malconduct, fraud or corruption on the part of the election officials. It does not charge that contestee was ineligible to the office at the time of the election, and neither does it allege that the contestee had been convicted of an infamous crime. Neither does it charge an attempt to bribe, or bribery, on the part of contestee. The first four causes enumerated in the statute may therefore be disregarded.
The fifth ground pertains to the reception of illegal votes or the rejection of legal votes. In subparagraph (d) of paragraph 6 of the contest statement, contestor alleges the rejection of votes legally cast for him, but inasmuch as the names of the persons whose votes were rejected, together with the townships where they voted, are not set forth as required by G. S. 1949, 25-1416, supra, we may also disregard the fifth ground enumerated in the statute (G. S. 1949, 25-1411).
This brings us to the sixth ground for contest, which, in the interest of clarity, is repeated:
“For any error or mistake in any of the boards of judges or canvassers in counting or declaring the result of the election, if the error or mistake would affect the result.”
Reference is again made to G. S. 1949, 25-1412, supra, which, among other things, provides that the matter contained in the sixth cause of contest shall not be held sufficient to set aside the election unless such cause be found sufficient to change the result.
Contestee argues that the use of the words “the particular causes of contest,” in G. S. 1949, 25-1415, and “matter,” in G. S. 1949, 25-1412, clearly indicates the necessity to allege facts with more particularity than was done here.
In our opinion contestee places a strained construction on the words in question. The “particular causes of contest” obviously refer to the seven statutory grounds set out in G. S. 1949, 25-1411. The word “matter,” in G. S. 1949, 25-1412, may well be considered as synonymous with “proof of facts” — that is, as applied to the sixth provision of G. S. 1949, 25-1411, proof of errors or mistakes on the part of election officials is insufficient to set aside an election unless such errors or mistakes be found sufficient to change the result. In other words, we understand G. S. 1949, 25-1412, to be in the nature of a “direction” to a contest court on a matter of substantive law, and not a rule of pleading.
Subparagraph (a) of paragraph 6 of the contest statement alleges that errors and mistakes were made by the election officials in counting and declaring the result of the election, and that such errors and mistakes affected the result of the election.
We think such statement is sufficient to allege a ground for contest under the sixth provision of G. S. 1949, 25-1411.
Subparagraph (b) of paragraph 6 of the contest statement alleges errors and mistakes of the board of canvassers in declaring the result of the election to be a tie vote, and in determining the same in favor of contestee.
Bearing in mind that contestor objected to the action of the board of canvassers with respect to this matter, it is clear that inherent in such subparagraph (b) is the allegation that had it not been for such errors and mistakes on the part of the board of canvassers the result of the election would have been different. The statement therefore is sufficient to allege a ground for contest under the sixth provision of G. S. 1949, 25-1411.
Subparagraph (h) of paragraph 6, which is in the nature of a “catch-all” statement, and which also was held by the lower court to be legally sufficient, alleges that contestee was not legally and lawfully elected or chosen by a majority of the lawful votes cast in the election; that he was not legally and lawfully entitled to a sufficient number of the lawful votes cast to be entitled to a tie vote, ' and that on account of aforementioned errors, mistakes and irregularities a correct count of the votes and a correct canvass of the votes would affect the result of the election in that they would have established the election of contestor.
In our opinion subparagraph (h) is sufficient to allege a ground for contest under the sixth provision of G. S. 1949, 25-1411.
In reaching the conclusion that we have we feel constrained to say that we believe contestee’s strict analysis of language found in several of the decisions cited is not justified in the light of the facts present in each. It must be remembered that it is very difficult, and often impossible, to lay down a hard and fast rule or formula governing a matter such as we have here. The lower court did not err in holding that subparagraphs (a), (b) and (h), of paragraph 6, allege valid and legal causes for contest under the statute.
We turn now to contestor’s cross-appeal, in which it is alleged the court erred in permitting contestee to amend his notice of appeal from the contest court to the district court, and in ruling that only the three subparagraphs of paragraph 6, above-mentioned, allege a cause of action under the statute.
With reference to the first point, it is sufficient to say that there is an utter lack of any showing of prejudice to contestor because of the allowance of the amendment. This is particularly true in view of the court’s statement as to the only issue in controversy. It was within the court’s discretion to permit the amendment, and, no prejudice being shown, contestor’s contentions in this respect cannot be sustained.
As to the second point of the cross-appeal, we have no doubt but that the holding of the court, quoted supra, means that only sub-paragraphs (c), (d), (e), (/) and (g) of paragraph 6 were found to be insufficient, and that the court did not rule that all other portions of the statement, which are in the nature of formal jurisdictional matters, were not sufficient.
In this connection it may be conceded, solely for the sake of argument, that the matters complained of in the subparagraphs of paragraph 6 which were held to be legally insufficient, might constitute “errors and mistakes,” but the fact remains that such matters are not grounds for contest under the statute, and we therefore are unable to say the court erred in its ruling.
Various other contentions made by the parties, including the one with respect to the application and validity of G. S. 1949, 25-703, pertaining to the determination of a winner by lot when a tie vote exists, have been examined and considered, but require no discus sion. The fact remains that here it has not been determined by a contest court that a tie vote exists. The question has never been tried. The fact that G. S, 1949, 25-703, was invoked does not preclude a contest, when properly instituted.
From what has been said it follows that the judgment of the district court, as to both the appeal and the cross-appeal, is affirmed. | [
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The opinion of the court was delivered by
Wedeix, J.:
Two separate appeals, No. 39,433 and No. 39,434, both actions against the state corporation commission, have been consolidated for review in this court. The first numbered action was instituted by Kansas-Nebraska Natural Gas Company and the second by Cities Service Gas Company. Both actions were filed in the district court of Shawnee county. The parties agree the decision in case No. 39,434 will control both appeals. We, therefore, shall consider only the appeal in that case.
The appeal is by plaintiff from an order sustaining defendant’s motion to quash the service of summons on the ground the court was without jurisdiction of the parties or subject matter. The reasons alleged in that motion are in many respects similar to the grounds of defendant’s motion to dismiss the appeal to this court. In the main the motion to dismiss the appeal is based on the ground the district court lacked jurisdiction of the parties and subject matter and therefore the appeal did not confer jurisdiction on this court.
We think these questions require an examination of the petition. The order of the commission (appellee) which occasioned the action was promulgated May 20,1953. That order fixed the formula or standard for the measurement of a cubic foot of gas. Appellee’s former order on that subject reads:
“Gas, Cubic Foot, shall mean the volume of gas at a temperature of 60 degrees Fahrenheit required to fill one cubic foot of space under an absolute pressure of 16.4 pounds. In all computations of gas delivery it may be assumed that the gas obeys Boyle’s law governing the volume and pressure of the gases and that the flowing temperature is 60 degrees Fahrenheit. The volume of the gas shall be corrected for specific gravity, which shall be determined by the use of the balance method.”
The subsequent order of May 20, 1953, here involved, together with its purpose reads:
“5. That the portion of Rule 82-2-201 relating to the definition of ‘Gas, Cubic Foot’ referred to in Finding No. 3 [quoted above] is antiquated, unfair and unreasonable and provides a method of discrimination against citizens of this state; that said definition should be repealed, rescinded and held for naught.
“6. That in the interest of avoidance of waste and protection of correlative rights, and as a standard for a measurement which will be uniform in application with others in common usage in this area, the Commission should adopt and promulgate, as a part of Rule 82-2-201, in the interest of gas conservation, the following definition to wit:
“ ‘Gas Cubic Foot, shall mean the volume of gas contained in one cubic foot of space at a standard pressure base and at a standard temperature base. The standard pressure base shall be 14.65 pounds per square inch absolute, and the standard temperature base shall be 60 degrees Fahrenheit. Whenever the conditions of pressure and temperature differ from the above standard, conversion of the volume from these conditions to the standard conditions shall be made in accordance with the Ideal Gas Laws corrected for deviation.’ ”
The commission accordingly made the last order effective as of 12:01 a. m. of July 1,1953, and made it applicable to the withdrawal of gas from each and every field in the state.
The petition, insofar as now material, in substance, alleged:
Defendant’s principal office and place of business is in Topeka (Shawnee county) where its orders are made and issued; plaintiff is engaged generally in the business of producing, purchasing, transporting and selling natural gas for resale in interstate commerce; in the performance of such business and operations it produces, purchases, transports and sells natural gas produced in and.from several gas fields in this state; plaintiff’s contract prices for gas differed depending on various stated factors; its contract prices were based on the former standard of measurement; the new standard operates to increase such prices and impairs plaintiff’s rights and obligations under subsisting leases and contracts.
The petition, in substance, further alleged:
Plaintiff filed a petition for rehearing before the commission in' which it set forth the foregoing facts; it directed the commission’s attention to the indefiniteness and uncertainties of the new order as applied to plaintiff’s varied forms of business operations; the order was subject to conflicting interpretations; it requested the order be clarified; that the order be set aside as invalid for the following reasons:
The order did not contain a citation of the authority pursuant to which it was adopted as required by G. S. 1949, 77-406 and was not entitled to be filed with the revisor of statutes in order to have the effect and force of law, as provided in G. S. 1949, 77-410; the order impairs its rights in violation of the constitution of this state and particularly section 10, article 1, of the federal constitution; it deprives plaintiff of its property and contract rights in violation of the due process clauses of the federal and state constitutions; it denies plaintiff the equal protection of the law in violation of the fourteenth amendment to the federal constitution; it allows the commission to usurp legislative power not granted to it expressly or by necessary implication; it does not constitute a valid exercise of police power and would be arbitrary, discriminatory and irrelevant to the prevention of waste, economic or otherwise, or the protection of correlative rights or the conservation of natural gas as a natural resource.
The instant petition filed in the district court further, in substance, alleged that in plaintiff’s petition for rehearing before the commission it directed attention to the fact the commission’s findings and order were not supported by the evidence adduced at the hearing; appellant had a right to assume the order would conform to the testimony adduced and was, therefore, under no duty to cross-examine the expert witnesses called by the commission or to offer evidence in opposition thereto; plaintiff’s petition for rehearing was denied; plaintiff would be subject to severe penalties under the statutes if it be determined plaintiff violated the order; an actual controversy existed between it and the commission relative to the interpretation of the order; under the provisions of G. S. 1949, 60-3127 and 60-3132 it was entitled to a declaratory judgment interpreting the order and to consequential injunctive relief against the commission if the order were declared invalid.
The instant petition further alleged:
“14. Plaintiff alleges that it has no other adequate, practicable or complete remedy; that G. S. 1949, 55-606 is a discretionary remedy for judicial review and specifically provides, among other things, that the authority of the Court on such a judicial review ‘Shall be limited to a judgment either affirming or setting aside in whole or in part the rule, regulation, order or decision of the Commission’ here in question. Said judicial review statute does not purport to grant the Court authority to construe and interpret the meaning of such an order as here in question as applied to the business and operations of plaintiff as set forth herein and by reason thereof is wholly inadequate to protect the interests and rights of plaintiff herein; that said judicial review statute provides, among other things, that said judicial review action shall berried solely upon the record made before said Corporation Commission and additional evidence may not be introduced by plaintiff at the trial of said action in the District Court; that no evidence was introduced by plaintiff at the hearing before the Corporation Commission in said Docket No. 34,780-C upon which defendants base said order, Exhibit ‘B’ herein, changing and revising said measurement base because and by reason of the facts set forth in the last paragraph of plaintiff’s petition for rehearing, Exhibit ‘C’ herein; that evidence of plaintiff’s business and operations as hereinbefore set forth is necessary and essential to a determination of plaintiff’* rights and obligations on a judicial review of said order in question herein; that if plaintiff should seek a judicial review under the aforesaid statute, it has no assurance that the District Court would, on request of plaintiff, remand such action to the Commission for further investigation or the reception of additional evidence, as such authority rests solely in the sound discretion of the District Court. In addition to the foregoing, said judicial review statute specifically provides:
“ ‘Nothing herein shall be construed in any manner to change, restrict, prohibit, or to deny to any person any of the usual equitable remedies.’
“By reason of the foregoing, plaintiff is entitled to institute and maintain this declaratory judgment action and the consequential relief herein requested.”
Appellant contends appellee’s motion to quash the service of summons was not based on the theory there was any defect in the service of the summons but was predicated on various legal contentions involving appellant’s right to maintain the instant action in the district court of Shawnee county. We think appellant’s conten tion in that respect is sound. Appellee’s motion to dismiss the appeal in this court raises most, if not all, of the same legal questions presented in its motion to quash the service.
Both of appellee’s motions raise the question, among others, whether appellant may maintain an independent action for a declaratory judgment and for injunctive relief against the commission • in the district court of Shawnee county which court, it is conceded, is not a court of review in this case. We think, under the circumstances, appellee’s motion to dismiss the appeal should be denied.
We shall, therefore, examine the petition in order to determine whether it states facts which permit appellant to maintain the instant independent action, in view of the relief sought, instead of seeking the desired relief in a court of review provided by the oil and gas conservation act. It is appellant’s contention the act authorizes the instant independent action and does not limit it to an action in a court of review. The question requires careful analysis of the act in order to ascertain the legislative intent.
Appellant properly contends the legislative intent must be determined from a consideration of not merely one but of all the pertinent provisions of the act. It is well to note at the outset the legislature has granted authority to the commission to interpret its own rules, orders and regulations and to determine any right thereunder in the manner provided in G. S. 1949, 55-605. (See G. S. 1949, 55-706.) It is not our understanding that the interpretation or validity of any order of the commission is beyond the reach of a reviewing court under the oil and gas conservation act. G. S. 1949, 55-707 reads:
“That actions for judicial review of any rule, regulation, order or decision of the commission under the provision of this act may be brought and proceedings respecting same shall be governed by and appeals may be taken as provided in section 55-606 of the General Statutes of Kansas of 1935, as amended, and that each and all of the provisions of said section, as so amended, shall apply to and govern such actions arising under this act.” (Our italics.)
If, as appellant contends, the instant standard of measurement is so indefinite and uncertain that it cannot proceed with safety in its operations we see no reason for concluding it could not bring an action for judicial review of that question. G. S. 1949, 55-606, in part, provides:
“Any action for judicial review of any rule, regulation, order or decision of the commission may be brought against the commission in the district court of any county in the state wherein the property affected thereby is located, or, if the property affected thereby is located in different counties, then the jurisdiction shall he in either of such counties. . . .” (Our italics.)
Appellant admits the instant action is not one for judicial review of the commission s order and that it was not filed in the district court of a county in which property affected by the order is located.
The last mentioned statute also provides that an action for a review of the commission s rule, regulation or order may be brought by any person aggrieved thereby. The same statute further provides: Such actions on review are to be tried and determined as other civil actions; the reviewing court is not bound by any finding of fact made by the commission; it may supersede any rule, regulation, order or decision of the commission as it may deem proper; a complete abstract of the record of all evidence and proceedings before the commission must be filed in the reviewing court by the complaining party; if such court deems it necessary and in the interest of justice it may remand the action to the commission with directions that it take additional evidence; after such further investigation the commission may change, modify or set aside its rule, regulation, order or decision; the dissatisfied party may thereafter have another hearing before the court of review upon the complete record and the reviewing court may render judgment, affirming, setting aside, in whole or in part, the rule, regulation, order or decision of the commission and an appeal lies to this court from the decision of the reviewing court.
In view of the broad powers granted to the reviewing court it would appear the legislature intended an aggrieved party should have a full and complete remedy in that court relative to any grievance he may have resulting from any rule, order or regulation of the commission. In the light of the fact a complete record of the commission s proceedings must be filed in the reviewing court it is logical to conclude the remedy in that court is fuller, more adequate and complete than it could be in an independent action before a court which does not have the benefit of the record on which the commission’s order is based.
One of the allegations in appellant’s petition for rehearing before the commission was that the commission’s order was not supported by the evidence adduced at the hearings before the commission and that the evidence, in fact, required an entirely different order. If that be true it could be established only by a reviewing court which had such record before it. In support of appellant’s conten tion it had no adequate remedy before a reviewing court the petition also alleged:
“• . . that evidence of plaintiff’s business and operations as herein-before set forth is necessary and essential to a determination of plaintiff’s rights and obligations on a judicial review of said order in question herein; that if plaintiff should seek a judicial review under the aforesaid statute, it has no assurance that the District Court would, on request of plaintiff, remand such action to the Commission for further investigation or the reception of additional evidence, as such authority rests solely in the sound discretion of the District Court.”
If appellant believed additional evidence was necessary it should have presented it to the commission pursuant to the provisions of G. S. 1949, 55-605. Moreover, this court cannot assume a court of review would not exercise reasonable discretion relative to remanding the action to the commission “when it deems it necessary and in the interest of justice.”
In treating the motion to quash the service of summons as a demurrer to the petition, as appellant contends it should be, it must be remembered a demurrer admits only facts well pleaded and does not admit naked conclusions. In consideration of the extensive powers granted to a court of review we are obliged to conclude the allegation appellant is without an adequate remedy in a court of review constitutes a conclusion which is not admitted on demurrer.
Appellant argues the power of a reviewing court is limited and cannot grant full relief. It directs attention to the provisions in G. S. 1949, 55-606 which provides, “The authority of the court shall be limited to a judgment either affirming or setting aside in whole or in part the rule, regulation, order or decision of the commission.” Assuming that provision constitutes as drastic a limitation of power as appellant contends it is clear a reviewing court would have had ample power and authority to set aside the order here complained of in its entirety. In that event no separate order enjoining the commission from enforcing the order would have been necessary. It expressly has been held the quoted provision does not indicate a legislative intent to authorize the filing of an original, independent action in a district court. (Wakefield v. State Corporation Comm., 151 Kan. 1003, 1007, 101 P. 2d 880.)
Appellant relies on the concluding sentence in the same statute which reads:
“Nothing herein shall be construed in any manner to change, restrict, prohibit, or to deny to any person any of the usual equitable remedies.”
It argues that provision preserved the right to bring an independent action for a declaratory judgment and injunctive relief. The contention has received our studious consideration. It frankly should be conceded the provision at first blush might appear to preserve independent equitable remedies. If such a conclusion were tenable it would nullify the broad jurisdiction and powers of a reviewing court to do justice on the basis of the full record made before the commission.
It is too clear to be doubted the review provisions were enacted to enable a reviewing court to correct errors which might be committed by the commission in order that justice would be insured to an aggrieved party on the basis of the complete record. It should be noted the review statute in nowise denies the reviewing court the right to apply equitable principles. It provides actions in the reviewing court shall be tried and determined as other civil actions. That includes a trial and determination of actions on equitable considerations. In fact the entire authority to prevent waste under the conservation act is predicated fundamentally on equitable principles.
Various statutes in pari materia and all parts of a single statute must always be construed together with a view of reconciling and bringing them into workable harmony if reasonably possible to do so. (Talbott v. Nibert, 167 Kan. 138, 206 P. 2d 131; State v. Sumner, 169 Kan. 516, 219 P. 2d 438; Kimminau v. Common School District, 170 Kan. 124, 223 P. 2d 689.)
When so read and construed we think the provision in question was intended to mean suitable equitable remedies should not be denied to an aggrieved party in the review action. It would do violence to the legislative intent to conclude it was intended equitable remedies should be available in an independent action when complete and adequate equitable relief may be obtained in the reviewing court. Any other interpretation would throw the entire procedure for the determination of rights under the conservation act into utter chaos. The primary intent and purpose of the review statute was to eliminate the uncertainty and confusion which resulted from independent actions involving the interpretation, validity and enforcement of rules, regulations, orders or decisions of the commission.
It is true, as appellant contends, the provisions of the conservation act are not in all respects the same as those contained in the public utilities act. We need not borrow provisions of the latter act to support the instant decision. The previously indicated purpose and intent of a review statute, however, is the same under both acts. It was early stated in Wichita Gas Co. v. Public Service Com., 132 Kan. 459, 461, 295 Pac. 668, and need not be repeated here. It is inconceivable to believe the legislature intended an independent 'action for declaratory judgment and injunctive relief against the commission could be maintained in one district court, without the benefit of the record made before the commission, while another action for the same purpose could be maintained on such record in the reviewing court by another party affected by the same order. Such proceedings readily might result in wholly contrary judgments and endless confusion.
In Borchard on Declaratory Judgments, 1934 ed., the rule is stated as follows:
“Where, however, a special statutory method for the determination of the particular type of case has been provided, it is not proper to permit that issue to be tried by declaration. This would amount to ousting of its jurisdiction a statutory court prescribed for the particular case, and it was not intended that a declaration should be employed for such a purpose. This, however, is quite different from refusing a declaration merely because a general or common-law remedy might have been invoked.” (p. 156, 157.)
See, also, 1941 edition by same author, p. 321-322, and Arkansas Power & Light Co. v. Federal Power Com., 60 F. Supp. 907.
In Columbian Fuel Corporation v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, 271 P. 2d 773, this day decided, we said:
“If an aggrieved party desires to challenge the commission’s order, or any part thereof, his remedy is before the commission and under the review statute, G. S. 1949, 55-707.” (p. 441.)
In Wakefield v. State Corporation Comm., 151 Kan. 1003, 101 P. 2d 880, plaintiff filed an independent action in the district court of Cowley county to enjoin the commission from enforcing a pro-ration order. The property affected by the order was located in that county. The commission filed a motion to quash the service of summons, which was overruled. It then filed a demurrer to the petition which also was overruled. This court reversed the decision of the district court. The questions decided were whether an independent action to enjoin the commission from enforcing its pro-ration order could be maintained and whether such action was properly brought in that county. We held it was not properly brought in Cowley county for the reason that, unless otherwise pro vided by statute, an independent action against the commission must be filed in Shawnee county. We further held:
“The provisions of section 5, chapter 227, Laws 1939 (G. S. 1939 Supp. 55-606), construed, and held: (a) It was not the intention of the lawmakers to grant to a person aggrieved by an oil-proration order of the state corporation commission the right to enjoin the commission from enforcing its order by an independent action in the district court of the county where property affected by the order was located, but it was the intention such person should have the right to invoke the jurisdiction of that court for the purpose of obtaining a judicial review of any rule, regulation, order or decision of the commission. . . .” (Syl.)
In the instant case the independent action against the commission, insofar as venue is concerned, was properly filed in the district court of Shawnee county, if such an independent action may be maintained. We have concluded an independent action, such as the instant one, may not be maintained in any court and that such legal or equitable remedies as a party aggrieved by the commission’s order may have must be asserted in an action filed in the court of review designated in the conservation act. It follows the district court of Shawnee county lacked jurisdiction to entertain the instant independent action. The result of all this is to place heavy duties and responsibilities on a reviewing court to make certain the rights of a party feeling aggrieved by a rule, order .or regulation of the commission are adequately protected.
We have not overlooked the numerous helpful decisions supplied by the industry of counsel relative to the question decided or the authorities touching various other questions argued in the briefs. In view of the conclusion reached we do not deem it necessary to extend the opinion with a treatment of additional matters.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover money on a written contract. Judgment was for plaintiffs. Defendants have appealed.
The action was by one partnership against another partnership and certain other individuals.
The petition alleged that plaintiffs’ residence was Butler county, Kansas; that defendant Jackson was the agent of a partnership, the Newton Oil and Gas Company, whose address was Newton; that Jackson, Swank and Hazard were members of the partnership; that defendant Citizens State Bank of El Dorado was escrow agent under the terms of a written contract, by the terms of which plaintiffs agreed to complete an oil and gas well, which contract was attached to the petition; that pursuant to the contract $3,000 was deposited in defendant bank by the Newton Oil and Gas Company, and plaintiffs pursuant to this contract moved their machinery on the lease and proceeded to do the work, in accordance with its terms. The petition then referred to two earlier supplemental contracts between the parties and copies of all three were attached to the petition; that plaintiffs had fully complied with all the contracts and defendants refused to pay them money due them by their terms; that plaintiffs were entitled to the $1,000 remaining in escrow and $2,430 additional for day work and shut-down time; and were entitled to an order directing the bank to pay plaintiffs $1,000 then in escrow; that plaintiffs were ready and willing to pull the pipe and put it on top of the ground in accordance with the third supplemental contract, but defendants refused to carry out its terms.
Judgment was prayed against the partnership and the individual defendants in the amount of $3,430, and further that the $1,000 in escrow in the bank be ordered paid to the plaintiffs and credited upon sums due from the other defendants.
The petition referred to three contracts, each of which was attached. Only the last of these, however, under date of July 10, 1951, is brought here in the record. It referred to the other contracts and stated that a controversy had arisen between the parties and that the defendants agreed to pay plaintiffs $500 in cash in full settlement for all work done to date, and authorized the escrow bank forthwith to pay plaintiffs $2,000 of the $3,000 in escrow and that the bank should retain the balance of $1,000 to be paid plaintiff on completion of the work and the bank should also deliver to plaintiffs an assignment for a one-sixteenth interest in the leases of defendants. The contract further provided that plaintiffs agreed to lift the casing in the well so that the pipes might be cemented to keep out the water; and to drill out the cement and to plug and swab the well for four consecutive days, and plaintiffs would not be entitled to any additional charge for that work, but all expense of the cementing should be borne by defendants; that if the well should be a dry hole plaintiffs should pull the pipe and put it on top of the ground and the cost incidental to this should be borne by defendants; that plaintiffs would carry out the terms of the contract and would not abandon the work before completion, but would not be responsible for delay caused by defendants.
The answer of the bank admitted the making of the contracts and that it had in its possession $1,000 as escrow agent; and alleged that plaintiffs should be put on strict proof as to the balance of the petition.
The defendant partnership and its alleged agent filed a motion to quash the summons for the reasons that they were residents of Harvey county and venue of the action was in Harvey county, not But ler; that defendant Swank was only a nominal party for the purpose of jurisdiction and not a necessary or proper party to the action; that the defendant bank wás a nominal and not a necessary party. Similar motions were filed by Swank and Hazard. These motions were all overruled.
Thereupon an amended petition was filed whereby plaintiffs alleged themselves entitled to $12,000 in addition to the $1,000 escrow money for shut-down and working time after defendants had violated the terms of the contract and refused to allow plaintiffs to move their equipment; the amended petition again alleged plaintiffs were entitled to the $1,000 escrow-money.
Judgment was prayed against all the defendants for $13,000 and that $1,000 in the bank be ordered paid on the judgment.
Defendant Swank answered denying that he was a member of any partnership and denying that he was indebted to plaintiff in any sum whatever; defendant Hazard denied that he was a member of any partnership known as the Newton Oil and Gas Company or any other partnership transacting business with plaintiffs and denied that he was indebted to plaintiffs in any sum whatever.
As a result of motions to make definite and certain the defendants the partnership and certain individual defendants, filed a second amended answer and a cross petition in which they admitted the execution of the contracts and the deposit of the $3,000 in the bank The answer then alleged that at the time of the execution of the contracts plaintiffs knew that at the bottom of the hole a bailer had been lost and could not be recovered and falsely represented to defendants that the hole could be swabbed in accordance with the contracts and these representations were made to defraud the defendants of the balance deposited, defendants having no knowledge of these facts and believing the representations were induced to execute the third contract; that immediately upon discovery of these facts defendants gave plaintiffs instructions to remove their rig from the premises and released them from any duty under the contract, but plaintiffs refused to remove their rig. For further answer and cross’ petition against plaintiffs the defendants incorporated the allegations of the answer and alleged that by reason of the false representations that the well could be swabbed the defendants suffered a loss of $30,000, representing the cost of the purchase of the well in the sum of $22,500 paid for the well and $7,500 paid to the plain tiffs for additional work; that on account thereof plaintiffs were not entitled to judgment directing the bank to pay them the $1,000 in escrow and defendants were entitled to judgment against plaintiffs for $30,000. Judgment was prayed in that amount.
The reply and answer of the plaintiffs was a general denial. The reply of defendants was a general denial.
The case was submitted to the trial court without a jury. At the close of plaintiff’s evidence the defendant partnership’s demurrer to it was overruled. The demurrer of Swank to the evidence was sustained. The plaintiffs demurred to the evidence offered by defendants in support of their cross petition and this demurrer was taken under advisement by the court.
Plaintiffs were given leave to amend their amended petition by asking for judgment for the reasonable value of the use of their equipment to conform to evidence in the case.
The trial court found the issues in favor of the plaintiffs, ordered the defendant bank to pay plaintiffs the $1,000 on deposit and gave plaintiffs an additional judgment in the amount of $7,500 and further found that defendants were not entitled to any relief against plaintiffs on their cross petition.
The trial court further ordered that plaintiffs should proceed to pull the casing in the well and place it on the ground in accordance with the terms of the contract, but plaintiffs should not be required to do so unless notified in writing by defendants on or before a certain date and if no notice was given by defendants, plaintiffs should remove their equipment and should not be liable to defendants.
Defendants moved for a new trial on the grounds of abuse of discretion by the trial court; misconduct of prevailing party; accident and surprise; defendants not afforded a reasonable opportunity to present their evidence; erroneous rulings; the verdict was given under the influence of passion and prejudice; and the verdict in whole or in part was contrary to the evidence.
The plaintiffs filed a motion for a new trial on the question of damages only. These motions were all overruled.
The notice of appeal was to the partnership and no other parties. In it the defendants appealed from the judgment whereby it was decided that defendants were indebted to plaintiffs for $8,500, including the $1,000 in escrow in the bank, and from all adverse decisions.
Defendants argue first, that the trial court erred in overruling their motions to quash the summons and their motions to dismiss for lack of jurisdiction. They point out the partnership was a resident of Harvey county and service on it could only be had in that county, and that the trial court overruled the motion to quash because it considered either the bank or Swank to be necessary parties to the action. Defendants point out that the bank’s only interest in the litigation was that there be a correct determination of the controversy. Defendants’ argument is that such interest was not sufficient to confer jurisdiction on the district court of Butler county. The statute in question is G. S. 1949, 60-509. It provides as follows:
“Every other action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned.”
There can be no doubt but that the bank was named a defendant and that the county of its residence and where it could be summoned was Butler.
Defendants argue that there was no joint liability of the partners and the bank and that before service on a resident defendant can serve to confer jurisdiction on a court over a nonresident defendant there must be joint liability.
There is another point with which we must deal before we consider the merits of the above argument. Plaintiffs argue that there is no appeal in this court because no notice of appeal was served on the bank. The petition asks amongst other things that the bank be ordered to pay the $1,000 in escrow with it to plaintiff to apply on the judgment. The contract makes it clear how this $1,000 happened to be in escrow. The trial court gave judgment for $8,500 and ordered the bank to pay from this amount $1,000 to plaintiffs. Defendants appealed from all the judgment. They did not, however, serve any notice of appeal on the bank. The bank was a party to the action. The judgment ordered it to pay the $1,000 to plaintiffs. The statute in question is G. S. 1949, 60-3306. It provides:
“Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, ... A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, . . .”
G. S. 1949, 60-3310, provides:
“Any notice of appeal may be amended at any time by bringing in additional parties or otherwise, before the hearing, as to the appellate court may seem fit, . . .”
This appeal was argued on May 3, 1954. At the oral argument we were advised that appellants had earlier that day filed a motion to amend the notice of appeal by making the bank a party. They had served a copy of this motion on opposing counsel the day before. We permitted the appeal to be argued on its merits and at the same time this motion was argued. At consultation we considered the motion. Without deciding the interesting question of whether the bank was a necessary party to the appeal, we have decided following Grant v. Reed, 163 Kan. 105, 179 P. 2d 945, to allow the amendment. Accordingly, we shall proceed with consideration of the merits of the appeal as though the notice of appeal had been served on the bank in the first place.
The defendant partnership argues first the trial court erred in overruling its motion to quash the summons. The statute involved is G. S. 1949, 60-509, already quoted in this opinion. Defendants argue that where a defendant is made a party merely to confer jurisdiction on the court in whose jurisdiction he resides in order to confer jurisdiction over a co-defendant who does not reside in the jurisdiction, the resident defendant must have a real and substantial interest in the subject of the action adverse to the plaintiff and it must be possible for the plaintiff to obtain substantial relief against such defendant. They argue the bank in this action did not meet the above requirements and was a mere nominal party. Such was the ground upon which their motion to quash the summons was based.
We find it unnecessary to decide that question in view of this record. After the motions to quash had been ruled upon, the plaintiffs filed an amended petition. To this amended petition the defendant partnership filed an amended answer and cross petition. This cross petition asked for affirmative relief in the form of a judgment for $30,000 against plaintiffs for false representations.
Thompson v. Greer, 62 Kan. 522, 34 Pac. 48, was a case a great deal like this. The defendant had filed a motion to dismiss because the action was improperly brought in his county. The trial court overruled that motion and when the final judgment was appealed, we held it should have been sustained. We, however, pointed out in the opinion that the defendant later filed an answer to the plaintiff’s petition and also filed a counter claim for damages against the plaintiff. We said:
“The defendant below, however, was not content to place himself in a position of merely resisting a recovery by the plaintiff of the amount for which he sued, but on the other hand sought to establish against the plaintiff below an affirmative judgment amounting to $3650 more than the plaintiff Greer claimed that Thompson owed him for feeding the cattle under the contract. As to this $3650, the defendant below went into the forum where the plaintiff had commenced his action and by filing his cross-petition invoked the action of the court in his own behalf. He was not satisfied with protecting himself with a shield, but attacked his adversary with a sword. His claim for relief placed him in the same position as if he had brought an independent action against Greer for the $3650, making a voluntary choice of the tribunal in which he desired to establish his claim.”
See, also, Moses v. Hoffmaster, 64 Kan. 142, 67 Pac. 459; Woodhouse v. Land & Cattle Co., 91 Kan. 823,139 Pac. 356; Clark v. West, 111 Kan. 83, 206 Pac. 317; and Butter Tub Co. v. National Bank, 115 Kan. 63, 222 Pac. 754.
The latter case contains a number of citations of similar decisions of this court.
On this account any deficiency in the summons and the lack of jurisdiction of the court was waived by the defendant corporation when it filed the cross petition and asked for judgment against the plaintiff. By so doing, the defendant partnership conferred jurisdiction on the trial court to adjudicate the entire matter.
The defendant next argues, the court erred in awarding the judgment of $7,500. They base this argument on three grounds— (1) that the judgment was not in conformity with the evidence provided at the trial; (2) that the plaintiff’s own evidence showed conclusively that no effort was made by plaintiffs to mitigate their losses; and (3) fire evidence showed the defendants waived the requirements of the contract, the terms of which require plaintiff to pull the casing in the hole. In dealing with this argument we are confronted with a somewhat perplexing situation. Counsel for the appellee points out first the provisions of G. S. 1949, 60-3311. This statute provides as follows:
“Either party to any case tried in a court of record having an official stenographer may direct such stenographer to transcribe and certify to the correctness of all of the stenographer’s notes of the testimony and proceedings in the case or any such part as such party may designate, and such transcript shall be made, certified and filed with the clerk of such court on payment to such stenographer by the party ordering the same of the costs of such transcript, and such transcript shall thereupon become a part of thet record in the cause, subject to amendment and correction by the trial court or judge.”
Counsel for the appellees state that the transcript in this case was never filed with the clerk of the district court as that statute provides it should be. Counsel for the appellants admit it was not filed on account of oversight. They state, however, it was delivered to the clerk on April 25, 1954, and filed in the clerk’s office on April 26, 1954, early in the morning and prior to the argument. They make the point that the statute itself does not say at what time the transcript was to be filed. They insist they had the transcript in their possession at all times and had counsel for appellees wished this, they could have obtained it by requesting it from appellants. We have held that compliance with G. S. 1949, 60-3311, should be had and in any event the failure to file it would limit the scope of the review. See Mercer v. Kirkwood, 147 Kan. 637, 77 P. 2d 929; Barker v. Chicago, R. I. & P. Rly. Co., 158 Kan. 549, 148 P. 2d 493; and Farmers State Bank v. Crawford, 140 Kan. 295, 37 P. 2d 14. The argument that this failure is not available to appellees because they could have obtained the transcript by requesting it of counsel for the defendants is not good. The statute makes it clearly the duty of counsel for appellants to file the abstract with the clerk of the court so it is available for the counsel for the appellees if they wish to make use of it. The duty rests upon the counsel for the appellants to do this. It appears in this case there was a change in counsel between the time the case was tried in trial court and the appeal was taken. This might account for the failure to file the transcript but it is not a valid excuse.
However, as to the first argument of appellants that the judgment for $7,500 was not in conformity with the evidence, the abstract is sufficient so that we can say there was substantial evidence to sustain the judgment of the trial court in that respect.
As to the second ground that the plaintiffs’ own evidence showed conclusively that no effort was made to mitigate the plaintiffs’ loss, we cannot give the evidence furnished by the plaintiffs that construction. Neither can we find it shows the defendants waived the requirement of the contract, the terms of which required plaintiffs to pull the casing in the hole. We hold there was substantial evidence in the abstract to sustain all the findings.
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|
The opinion of the court was delivered by
Wedell, J.:
The plaintiff, Columbian Fuel Corporation, a producer of natural gas in the Kansas portion of the Hugoton gas field, sought recovery of a money judgment from the defendant, Panhandle Eastern Pipe Line Company, a corporation, a purchaser of gas.
The action has not been tried. The district court conducted a pretrial conference pursuant to G. S. 1949, 60-2705 and 60-2902 in order to determine questions of law based on issues joined by the pleadings, which included numerous exhibits, and stipulations of fact.
The second amended petition comprised four causes of action. The parties had executed two contracts for the sale and purchase of gas, one in 1937 and the other in 1946. The first two causes of action involved those contracts and the impact thereon by orders of the Kansas Corporation Commission. The general nature of those two causes of action is the same. Both involve the same principal question, namely, whether plaintiff is entitled to receive payment from defendant for the cost of gathering the gas from plaintiff’s wells in the field and for its delivery to defendant’s pipe, line at a point designated in the contracts. Plaintiff claimed one cent per thousand cubic feet (MFC) of gas was a fair and reasonable price for the cost of gathering and delivering the gas. It also claimed interest thereon at the rate of six percent per annum from the respective monthly dates on which payment for the sale of gas was due under the contracts. Plaintiff alleged such interest should be paid from March 1, 1949, the effective date of the commission’s interim order dated February 18, 1949, under which the value of gas was fixed at a minimum of not less than eight cents at the wellhead, contrary to the price designated in the contracts. Defendant contended plaintiff was not entitled to recover anything under either of those two causes of action. The court ruled in favor of plaintiff on each of them, except as to the interest claimed.
In the third and fourth causes of action plaintiff sought recovery of interest on sums of money claimed, which sums were the difference between the price, under the two contracts, and the increased price fixed by the interim order of the commission. Payment of the increased amounts were withheld by permission of the commission pursuant to defendant’s filing a bond which the commission approved. On those two causes of action the court concluded defendant should prevail.
Each party has appealed from portions of the judgment adverse to it.
In order to avoid confusion and in the interest of brevity we shall refer to plaintiff as the seller and to defendant as {he buyer. Those terms harmonize with the terms employed in the contracts to which we shall later refer. We shall continue to refer to the Kansas Corporation Commission as the commission.
The pleadings, admissions and the exhibits are voluminous. We shall presently refer only to portions thereof which are of general importance and shall later refer, where necessary, to other provisions relied upon by the parties. .
The 1937 contract fixed the price at four cents per MCF of gas. It stated the point at which the seller was to deliver the gas into the buyer’s fine, where the buyer was required to install a meter at its expense. That point was the northeast corner of section twenty-four (24), township twenty-nine (29), range thirty-six (36), Grant county. It required the seller, at its own cost and expense, to lay and maintain the necessary gathering lines in the field and also the delivery line to the meter. It provided the point of delivery into the buyer’s line should be the point at which the gas was to be sold and delivered. It also provided:
“This contract is expressly made subject to present and future valid statutes, orders, rules, and regulations of duly constituted authorities having jurisdiction over either or both Seller and Buyer . . .”
The 1946 contract fixed the price at five cents per MCF. In all other respects it contained the same material provisions as those found in the 1937 contract.
The commission’s basic proration order for the Hugoton gas field promulgated under date of March 21, 1944, contained the following provision:
“i. That the producers in the field have been required, by custom, to lay gathering lines from their wells to the pipe lines of the purchasers. A lease is, therefore, undeveloped until a gas-producing well has been completed thereon and the owner or operator thereof has tendered gas to a purchaser at the purchaser’s pipe line. Before a well is entitled to an allowable, the owner or operator thereof should either tender the gas for sale at the prevailing price being paid in the field to a pipeline company or others who are purchasing in the field in which such a well is located, or demonstrate that he will and can produce the gas allowed such a well for lawful purposes.”
On February 18,1949, the commission, upon application of certain royalty owners in the Hugoton gas field, and others, made an interim order in which it fixed the value of gas at the wellhead in that field. The instant buyer, together with others, intervened. That hearing was given Docket No. 35,154-C (C-1868). In the course of the hearing the commission concluded the proceeding did not ■ fully explore all the factors which the commission deemed necessary to consider in arriving at a final determination.as to the value of gas at the wellhead in such field or as to what minimum wellhead price should be fixed for the sale of natural gas. It, therefore, entered an order instituting a further investigation under Docket No. C-164. It did, however, conclude that under the undisputed evidence adduced it was established that in order to give effect to all the intents and purposes of the statutes relating to production and conservation of natural gas it was necessary and appropriate to determine, pending completion of the investigation, what the fair and reasonable value of natural gas at the wellhead was in the Hugoton field. It, therefore, ordered:
“1. No person, firm or corporation taking gas from the Hugoton Field shall take or cause such gas to be taken out of the producing structures or formations thereof without attributing thereto for purposes of payment to the producers, landowners, leaseowners and royalty owners a fair and reasonable value at the wellhead of not less than eight cents per thousand cubic feet.”
The foregoing order was made effective from and after March 1, 1949, and until further order. The commission stated its determination of the value of gas might be modified as a result of further investigation. It, however, provided that pending completion of its investigation payment of fire difference between the contract price of gas and that presently fixed by the commission should be made as follows:
“(a) Make actual payments of such differences at the usual time payments are made to the producers, leaseholders, landowners and royalty owners entitled thereto, or
“(b) Deposit and impound in their own treasuries the actual amounts representing such differences and hold such funds in trust for the use and benefit of such producers, leaseholders, landowners and royalty owners, pending final determination and completion of the investigation instituted in Docket No. C-164 and the further order of this Commission, or
“(c) Furnish a bond, with good and sufficient surety, in an amount adequate to insure payment of all such differences upon final determination and completion of the investigation instituted in Docket No. C-164, running in favor of the State Corporation Commission of the State of Kansas for and on behalf of such producers, leaseholders, landowners and royalty owners.”
It also provided that the buyers should keep full record of their payments or deposits, if made in accordance with the above order, and should make monthly reports to the commission of the amount of gas purchased, to whom payments were made and the amounts thereof. The instant buyer elected to file a bond which the commission approved.
Thereafter the buyer instituted a proceeding in the district court of Seward county for a review of the interim order dated February 18, 1949, in the district court of Seward county. Other buyers instituted like proceedings in the district court of Finney county in all of which review proceedings the interim order of the commission was affirmed by the respective district courts. Three appeals were consolidated in this court. It affirmed the decisions of the district courts in an opinion filed October 7,1950. (Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 169 Kan. 722, 222 P. 2d 704.) On January 6,1951, this court filed a second opinion and denied the motion for rehearing. (Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 170 Kan. 341, 225 P. 2d 1054.)
Following the last opinion and on February 21, 1951, the commission, on its own motion, gave further consideration to the matter, reviewed its former orders, took cognizance of the decisions of this court, stated the matter had become finally determined and that distribution should be made to the sellers of gas for the differences in price between that fixed by contracts existing prior to March 1, 1949, and the interim order of February 18, 1949.
It will be recalled the commission in its interim order granted the buyer three alternatives, previously quoted, for the adjustment of such differences. It specifically stated in its order of February 21,1951, that alternatives (b) and (c) set forth in the interim order were inserted to make payments of such differences unnecessary until after the lawfulness and reasonableness of its interim order had been judicially determined. It then, on February 21, 1951, provided the differences should be paid on or before April 1, 1951. It restated its order for change of price to eight cents. The buyer paid the difference before the specified date. Its February 21, 1951, order further stated:
“The purpose of the Interim Order of February 18, 1949, is to accomplish conservation and prevention of waste of gas in and from the Hugoton Field.”
On the following March 8, 1951, the commission, on its own motion, reconsidered its order of February 21, 1951, and found it had omitted language therein which was essential to the expression of its order when made. It corrected the order to make it read:
“2. That all persons, firms or corporations which have taken gas or caused gas to be taken from the Kansas Hugoton Field since March 1, 1949, or which are taking or causing gas to be taken from said field shall from and after March 1, 1949, attribute to all gas taken, (except gas for the operation of leases), for all purposes, including the payment to producers, landowners, lease owners and royalty owners, the fair and reasonable minimum value of not less than eight (80) cents per thousand cubic feet at the wellhead until the further order of the Commission in the investigation instituted in Docket No. C-164.”
The italicized words constituted the,only additions or corrections. It will be noticed the corrected order corresponds entirely with the interim order made February 18, 1949, heretofore quoted,' except that the word “minimum” was inserted in the last order.
On May 4, 1951, the commission s order stated: Its investigation in Docket No. C-164 was closed on May 2, 1951; the buyer in the instant case had fully complied with its order for the payment of differences within the time required and the buyer’s bond.should be and was cancelled and returned to it.
On February 28, 1952, the seller filed the instant action against the buyer in the district court of Grant county. On January 7, 1953, it filed its second amended petition here involved. It set forth the amount it had invested in the construction of gathering and delivery lines; alleged one cent per MCF of gas was a fair and reasonable charge for the cost thereof and sought recovery in that amount together with interest heretofore mentioned. The final pleadings of the parties consisting of the second amended petition, answer and reply and the stipulations of fact embraced all matters previously narrated herein.
The district court concluded the determination of the issues in the case depended upon the interpretation of the interim order of February 18, 1949, and the final order of February 21, 1951. It found the primary purpose of the interim order was the conservation of the natural product, gas; the fixing of the value of gas at the wellhead at eight cents was a conservation measure; the contracts were subject to the jurisdiction of the commission and were changed by its order so as to entitle the seller to eight cents net at the wellhead; it was the court’s duty to construe the contracts in the light of the commission’s order so as to carry out the expressed intentions of the commission and beyond that the contracts should and do control; the seller was entitled to a refund, but without profit to it, of the cost incurred in gathering and delivering gas to the point specified in the contracts but was not entitled to recover interest on tire first or second cause of action.
In denying recovery of interest on the third and fourth causes of action, it, in substance, found:
An interim order is not a final order and in this case the order increasing the price was expressly left open to modification by the commission; that order could have been vacated in full; the commission fully recognized the contracts could be changed only as a conservation measure in the public interest; the commission recognized an honest difference of opinion existed as to whether it had statutory authority to make its order increasing the price and whether the interim order was constitutional; in permitting the filing of a bond by the buyer to secure payment of the difference in price the commission made no order which required security for interest on any amount which finally might be judicially determined to be due; the commission gave no other indication it intended interest should be charged on the amounts impounded by the buyer or secured by bond; had the commission intended interest should be paid on a conservation order it easily could have so provided.
Our examination of the terms of the bond also discloses the buyer obligated itself to pay only the difference if it was finally determined the interim order was lawful and reasonable. The bond required and approved by the commission did not provide for the payment of interest on such differences. It provided if the conditions set forth in the bond were fully complied with the obligation should be void.
In addition to the foregoing it is well to observe the commission interpreted its own interim order. In so doing it expressly stated it had not intended payment of the differences should be made before the question of the validity of its interim order fixing the value of gas at the wellhead was judicially determined. Moreover after such judicial determination it fixed the definite date for such payment as April 1, 1951. The buyer made payment before that date. The commission found the buyer had fully performed in accordance with its orders and cancelled the bond.
We have carefully noted the seller’s arguments and citation of cases involving its alleged right to collect interest on the differences in price. We need not unduly extend this opinion with an analysis of the numerous cases cited by either party on this subject. The rule that an administrative body’s interpretation of its own rules, orders or regulations, in case of ambiguity, is entitled to great weight— some courts say controlling weight — is universally recognized. (Harrison v. Benefit Society, 61 Kan. 134, 140, 59 Pac. 266; Bank v. Reilly, 97 Kan. 817, 823, 156 Pac. 747.) Tire original order pertaining to payment of differences must be construed in the light of the commission’s final order interpreting its intent. (Georgia Comm, v. United States, 283 U. S. 765, 771, 75 L. ed. 1397, 51 S. Ct. 619.) When so read all uncertainty of its intent is removed. An interpretation of an administrative order or regulation by the administrative agency becomes of controlling weight and will not be disturbed unless clearly erroneous or inconsistent with the regulation. (Bowles v. Seminole Rock Co., 325 U. S. 410, 89 L. ed. 1700, 65 S. Ct. 1215.)
Here the commission’s interpretation of its order for payment of differences was not inconsistent with such order which contained no provision for payment of interest and required no bond to secure the payment of interest.
This is not a case involving the right to recover an unlawful or unauthorized overcharge on transportation rates or a similar case. The sole purpose of the commission’s interim value, or price-fixing, order was the conservation of a natural resource and the prevention of its waste. At that time it recognized the questionable validity of its order. It, however, was concerned with exacting necessary security for payment of the differences in price in the event its order was judicially sustained. Its authority to exact such a bond is not an issue. For present purposes we therefore assume it had the right to exact such a bond and to include terms therein which it believed provided ample security for such payment. The bond it exacted and approved did not require the payment of interest on the differences in price.
Furthermore, the commission in its interim order expressly stated such order was not a final order and would be subject to change depending upon what further investigation disclosed. The commission, therefore, had power and authority to change the interim price order at any time. It might have set it aside entirely.
The seller in support of the commission’s general authority quite properly lays great stress on the statute, and the same provisions in the contracts, to the effect that all contracts of the parties and orders of the commission are subject to change by it. Rut by the same reasoning it would seem the commission had power to refuse to exact payment of interest on the differences in price. And by the same token it had authority to clarify its interim order had there been doubt concerning its meaning. Here any possible doubt was completely dispelled by the commission’s interpretation of its own order. In view of what has been said it is clear we do not have before us one of the questions raised by the seller, namely, whether interest may be collected from the date of a final order of an administrative agency, board or tribunal where the validity of such order is in doubt but is later established. We think the court properly denied interest on the amounts constituting the differences in price.
There is another reason why the seller cannot complain of the court’s judgment denying recovery of interest on the differences in price. That part of the relief sought constitutes a collateral attack on the commission’s interpretation of its own order.
The oil and gas conservation act expressly authorizes the commission, on application or on its own motion, to interpret and enforce its own rules, orders and regulations and to determine any right thereunder, in the manner provided in G. S. 1949, 55-605. (See G. S. 1949, 55-706.) A party, the seller in the instant case, cannot bypass the court of review, ignore the statutory procedure required in such court, and in a collateral and independent action question the validity or the commission’s interpretation of its own orders. If an aggrieved party desires to challenge the commission’s order, or any part thereof, his remedy is before the commission and under the review statute, G. S. 1949, 55-707. He has that remedy although he may not have been a party to the original proceeding before the commission. (G. S. 1949, 55-606.)
We now return to the first two causes of action in which the court held the seller was entitled to recover the cost of constructing and maintaining the gathering and delivery lines to the point of delivery into the buyer’s line designated in the contracts.
The buyer first argues there is no provision in the statutes or in the various orders of the commission authorizing it to fix the price of gas at the wellhead where the point of delivery is in the field and is designated in the contracts. The seller admits the gas is delivered in the field- but contends the particular issue as it pertains to delivery at a point in the field, was not presented to or decided by the district court. It is true we do not find the court pinpointed that issue. It, however, clearly appears from the contracts delivery was to be made at a point in the field which was clearly designated. Surely the court did not overlook that obvious fact. We are, therefore, obliged to conclude the order of the district court pertained to a situation where gas was being delivered in the field.
The buyer contends: The basic order of 1944 as amended has not been changed with respect to its provision (i) and that it remains the operative rule of the commission; provision (i) recognizes “producers in the field have been required, by custom, to lay gathering lines from their wells to the pipe lines of the purchasers”; the instant contracts expressly require the seller to construct and maintain such lines at its own expense; although the commission fixed a minimum price of not less than eight cents per MCF at the wellhead it did not expressly alter the provision of the basic order which requires the seller to bear the cost of constructing and maintaining the gathering and delivery lines.
This court is not unmindful of those facts or of the further fact that the contracts provide the sale shall be at the point of delivery described in the contracts. But what was the intention of the commission in the interim order dated February 18, 1949? It is clear to us it intended, as the district court found, that the seller should receive a minimum net price of not less than eight cents per MCF at the wellhead. That did not mean at some other point in the field. If the seller, in order to sell its gas, is required to pay the cost of gathering and transporting the gas to the point of delivery designated in the contracts it obviously will not receive a net minimum price of not less than eight cents per MCF at the wellhead. To construe the interim order otherwise is to nullify its practical purpose and intent.
The buyer argues the word “at” contained in the phrase “at the wellhead” is indefinite. We readily concede the word “at” as used in some circumstances has been held to be indefinite. We think, however, the word has a well understood meaning in the oil and gas industry when applied to the wellhead as distinguished from some other point in the field.
The real question, it seems to us, is whether the commission pos sessed jurisdiction and power to alter or amend the price terms of a contract in the interest of conservation and elimination of waste, as these terms have come to be understood in the industry. Both contracts provided:
“This contract is expressly made subject to present and future valid statutes, orders, rules, and regulations of duly constituted authorities having jurisdiction over either or both Seller and Buyer. . . .”
In Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 169 Kan. 722, 222 P. 2d 704, involving the instant interim order, as applied to the present and other buyers of gas in the Kansas Hugoton gas field, we held:
“Our statute gives the Corporation Commission authority to make an order fixing a minimum wellhead price for natural gas taken from a common source of supply if the evidence before the Commission justifies its conclusion that such an order is necessary in order to prevent waste and to secure the relative rights of owners of real property from which gas is produced from a common source of supply.” (Syl. ¶ 6.)
It is true, as the buyer states, that in the interim order fixing the minimum price of gas at the wellhead the commission made no change in the contracts which require the seller to gather and deliver the gas into the buyer’s line at the seller’s own expense and said nothing concerning the payment of the cost of that service by the buyer. In view of the fact the interim order did not alter the seller’s duty to gather and deliver the gas we must assume the commission intended the seller was to continue to do so. However, under those circumstances the interim price order can be made effective only if the buyer is required to pay the cost of the service. We, therefore, hold the district court did not err in concluding the seller is entitled to recover the cost thereof.
Did the court err in concluding the seller was not entitled to recover interest on the cost of gathering and delivering the gas from the monthly payment dates for gas after the interim order became effective on March 1, 1949?
The seller relies on G. S. 1949, 16-201 which provides creditors shall be allowed to receive interest at the rate of six percent per annum when no other rate of interest is agreed upon. As previously indicated, the interim price order was not a final but a temporary order and the commission expressly so stated. It was subject to change by the commission at any time. It is conceivable the commission ultimately might have made an order requiring the buyer to pay only a certain portion of the cost of gathering and delivering the gas. Its order might have been set aside entirely. No final principal amount, representing costs, upon which interest properly could be calculated was determined by the interim order.
The instant action does not involve merely a mathematical computation of costs. The question of the buyer’s liability for any of the costs was the main issue in the first and second causes of action. The next undetermined question which then existed and now remains is, what is the cost? Is it one cent per MCF as claimed by the seller or is it a smaller amount and if so, what is that amount? What are the various factors to be considered in determining such costs? Whether interest on the cost, under the circumstances of this case, is a proper element of such cost was only one of the unsettled issues.
Under the rule in this state, absent an agreement among the parties, interest is not recoverable as long as those essential factors remain wholly undetermined. (Prewett v. Van Pelt, 118 Kan. 571, 575, 235 Pac. 1059; Govenius Bros. v. Reagor, 130 Kan. 711, 288 Pac. 537; Bridgeport Machine Co. v. Hopper, 134 Kan. 205, 211, 5 P. 2d 832.)
In the Govenius case, supra, we held:
“In the absence of an agreement therefor, interest should not be computed on a mutual account, nor on an unliquidated claim.” (Syl. ¶ 2.)
It may be conceded there are cases in which interest may be allowed where for all practical purposes the amount due is liquidated for the reason nothing remained except the mathematical process of computing the exact amount due. This is not such a case. See, also, 25 C. J. S., Damages, § 52 b.; 47 C. J. S., Interest, § 19. Neither is this case similar to one involving collection of interest on unlawful overcharges on fixed transportation rates.
It readily is apparent, as the buyer contends, that some difficult and controversial questions will arise in connection with determining the fair and reasonable cost of gathering and delivering the gas. None of the matters mentioned was determined on the date of the interim order of February 18, 1949. They are not yet settled and interest cannot be allowed from March 1, 1949, the effective date of the interim order.
In view of what has been said it follows the judgment of the district court is affirmed in all particulars. | [
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The opinion of the court was delivered by
Price, J.:
This was an action by a subcontractor against the contractor and his corporate surety on what is commonly referred to as a statutory lien bond.
In December, 1950, one Gould and his wife entered into a written contract with one Abney, a contractor, whereby the latter was to construct a home for the Goulds in the city of Newton for the contract price of $25,000. The contract provided for the giving of a bond by Abney to guarantee faithful performance of the contract, but did not provide for a bond to guarantee payment of lienable claims such as is provided for by G. S. 1949, 60-1412. However, such a statutory lien bond was given. It was dated January 31,1951, was signed by Abney as principal and by defendant insurance company as surety, and was in the penal sum of $25,000. It was conditioned that the principal or the subcontractor or subcontractors of the principal shall pay all indebtedness incurred for supplies, materials or labor furnished, used or consumed in connection with or in or about the construction of the house.
The contract between the Goulds and Abney provided that if the latter should be unable to furnish any material called for by the plans and specifications, or substitute material agreed upon, the Goulds might furnish such materials at cost, such cost to be deducted from the stated contract price, and further provided that if construction should not be completed by May 1, 1951, or in the event of abandonment or substantial abandonment or failure of the contractor to proceed with the completion of the building, the Goulds might take over the improvements and procure such materials and labor as were necessary and proper to complete the building and improvements in accordance with the plans and specifications, and that they might then deduct the cost of completing the building from the total contract price. The contract further provided that such provision for completion of the building by the Goulds should in no way affect, release or exonerate any surety or sureties on any guarantee or bond made in connection with the contract.
Abney began work under the contract early in January, 1951. During the early months of construction he had several other construction jobs in progress. He left the Gould project uncompleted, and his last work on it was about the middle of October, 1951.
As is so often the case in a matter of this kind, during the con struction numerous changes and additions were made all over the house. An illustration of this is the case of the plaintiff, Murphree, who. had a written subcontract from Abney to furnish the labor and materials to install the plumbing, heating, electrical system and guttering, at a subcontract price of $4,000. The instant action was filed by him against Abney as principal in the bond and the corporate surety therein to recover a sum in excess of $4,500 for additional labor and materials occasioned by the changes and alterations made as construction of the house progressed.
Service of process was not made on Abney and he is not a party to this litigation. The action therefore stands against only the corporate surety on Abney’s statutory lien bond.
Other claimants for materials and labor furnished by them in the construction of the house were joined as defendants and they filed their answers and cross-petitions seeking recovery on their claims against Abney’s corporate surety.
The trial court made findings of fact and conclusions of law. These findings, insofar as the same are material for a proper disposition of this appeal, are, in substance, as follow:
With respect to Murphree, the court found that he had a written subcontract from Abney to furnish the labor and materials to install the plumbing, heating, electrical system and guttering called for by the building contract, and that he had been paid the full subcontract price of $4,000. The court further found that Murphree furnished several other items of labor and material referred to as “extras,” which went into the construction, and that of such extras items totalling $598.88-were outside his subcontract and were ordered by the contractor Abney, and that other extras were ordered directly by the Goulds and another person who was a stranger to the contract and who was not shown to have had any right to represent either the Goulds or Abney. The court also found there was no evidence that any of the extras claimed by Murphree were agreed upon between the Goulds and Abney.
With respect to claimant Voth, the court found that his testimony showed an “arrangement” with Abney as a subcontractor to furnish millwork and cabinet work for the house which had not already been furnished; that this arrangement or understanding was had with Abney and the Goulds in July, 1951. Voth’s material and time sheets were marked either “Gould”, or “Jim Gould residence.” He did not bill Abney for any of his work but did bill Gould. Voth’s total charges for his mill and cabinet work amounted to $6,207.16, of which amount Gould paid him $5,050.00.
With respect to claimant Anderson’s claim for materials and labor in connection with painting, finishing and decorating of the house, the court found that such claimant had no subcontract with Abney; that the work and materials furnished by him were not ordered by Abney; that the bills for such work and materials were billed to Gould, and that of the total charges of Anderson, amounting to $5,030.32, the sum of $3,407.25 had been paid by Gould.
With respect to claimant Dobson’s claim for labor and material furnished, totalling $624.60, the court found that such labor and materials were furnished by Dobson at the instance and direction of Gould and not under any subcontract or agreement with Abney.
The court’s conclusions of law were as follow:
“1. The bond sued on is ‘for the benefit of all persons in whose favor liens might accrue’ in the absence of the bond. It is a substitute for liens.
“2. The plaintiff and the defendant cross-petitioners assert their claims herein as subcontractors. They may recover only for materials and labor furnished ‘under a subcontract with the contractor.’
“3. No recovery can be had in this action against the surety, Trinity Universal Insurance Company, on any claim for which the principal, John P. Abney, is not hable.
“4. The plaintiff is entitled to recover from the defendant surety the sum of $598.88, being the total of the charges for ‘extras’ which it is stipulated were furnished on the order of the contractor, Abney, with interest at the rate of 6 percent per annum from the 24th day of May, 1952.
“5. None of the cross-petitioners are entitled to any recovery herein.
“6. The costs of this action should be assessed one-half against the defendant surety and one-half against the defendant cross-petitioners.”
Various motions of claimants with reference to the court’s findings and conclusions, and for a new trial, all being overruled, the court entered judgment in favor of plaintiff Murphree and against defendant surety, in accordance with conclusion of law number 4, supra, and claimants appeal, alleging some sixteen specifications of error.
No attempt will be made to take up and discuss the-specifications of error separately, a number of which concern the findings of fact made by the lower court. As to them we can only say that the record has been examined, and it cannot be said the findings are not supported by tibe evidence. That being the case, it is elementary that they are binding upon this court on appellate review. Those findings are to the effect that the various items of material and labor for which claims are made were, with the one exception, the result of direct dealings between the respective claimants and Gould, and were not furnished under subcontracts with Abney, the contractor.
Nan-owed down, therefore, the case really presents only the one legal question, namely — is a surety on a contractor’s statutory bond which provides for the payment of lienable claims liable for the payment of indebtedness for labor and materials not incurred by the contractor or his subcontractors? Or, stated another way — do claimants have a right of action against defendant surety on the statutory lien bond for the cost of materials and labor furnished directly to and at the instance and direction of the owner?
In our opinion the lower court correctly answered the question in the negative.
It is quite true that the statutory lien bond in question is a substitute for liens, is for the use of all persons in whose favor liens might accrue, and when such a bond is filed and approved no lien shall attach (G. S. 1949, 60-1412). In other words, when the bond is filed a claimant is not required to file a lien statement in order to preserve his rights — he may then look to the bond for recovery — but other than this the bond effects no change in the rights and relations of the parties. A claimant can recover on the bond only if in its absence he could have perfected and enforced a lien.
G. S. 1949, 60-1401, provides for a lien in favor of any person who furnishes materials or labor “under a contract with the owner of any tract, or piece of land, . . .” However, none of these claimants claims to have contracted with Gould, the owner, with respect to the matters in controversy. On the contrary, each of their claims is based upon the theory of a subcontract with the contractor, Abney. It naturally follows, therefore, that under their own theory none of them would have been entitled to a lien by virtue of this section of our statutes.
It is' obvious that claimants’ rights as self-styled subcontractors arise under the provisions of G. S. 1949, 60-1403, which, among other things, gives a lien to any person who shall furnish material or perform labor under a subcontract with the contractor, or as an artisan or day laborer in the employ of such contractor. In other words, to be entitled to a lien under the act as a subcontractor a claimant must have a contract with the contractor and must furnish his materials and labor under such contract. On this phase of the case the lower court, as already stated, found that the materials and labor in controversy, with the one exception, were not furnished as the result of subcontracts with Abney, the contractor, but rather were furnished at the instance and direction of Gould and another party. Such being the case, claimants would have no right to a lien by virtue of this section of our statutes.
The point really amounts to this:
Claimants’ actions are predicated upon their alleged subcontracts with Abney. Had they established that materials and labor, for which recovery is sought, were furnished by virtue of those alleged subcontracts with the contractor they would have been entitled to perfect and enforce liens as subcontractors under G. S. 1949, 60-1403, and, under G. S. 1949, 60-1412, would have valid causes of action on the bond. Ry the latter section the bond could have been given by either the contractor (Abney) or the owner (Gould). It was given by Abney — not by Gould — and was given to guarantee payment of indebtedness incurred by the contractor and his subcontractors in performance of the contract which was made a part of the bond, and not to guarantee payment of any and all indebtedness which might be incurred by the owner or members of his family for materials and labor going into the construction.
There is nothing in the record to establish that in ordering the materials and labor in question Gould was the agent of Abney. Having furnished the materials and labor at the instance and direction of the owner, Gould, claimants’ remedy was to perfect and enforce their liens against Gould, under G. S. 1949, 60-1401, but they did not choose to do so. Instead they proceeded on the theory of being subcontractors of Abney and, having failed in their proof of such subcontracts, they are not permitted to recover against the surety on the contractor’s statutory lien bond.
All contentions and authorities urged by claimants have been examined and considered but, with respect to the facts and questions here presented, are found to be without substantial merit. The lower court made proper disposition of this case and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the district court involving the custody of a minor child of the parties. The appellee Francis B. Duffy will be hereinafter referred to as plaintiff or husband, and the appellant Elsbeth M. Duffy as defendant or mother. Briefly the facts are as follows:
On February 7, 1953, plaintiff commenced an action for divorce against the defendant in the district court of Dickinson county. The petition alleged, in substance, the residence of the plaintiff, his marriage to the defendant, the names of the two children of the marriage, that the defendant had been guilty of gross neglect of duty and extreme cruelty toward the plaintiff, and further stated plaintiff believed that unless defendant was restrained from taking the children of the parties out of the state of Kansas, defendant would attempt to obtain possession of and remove them from the state. The petition prayed for a divorce, temporary and permanent custody of the minor children, and for such other relief as might be deemed just. Upon the filing of the verified petition, plaintiff obtained an order on February 7, 1953, in accordance with G. S. 1949, 60-1507, from the district court of Dickinson county awarding him the care, custody and control of the minor children, one of which is involved in this appeal, enjoining the defendant from taking the minor children from the residence of the plaintiff in Dickinson county, and from molesting or interfering with them in any manner during the pendency of the action. Defendant at the time was a resident of the state of Nevada, and service of summons by publication was had upon her under the provisions of G. S. 1949, 60-1504, and G. S. 1953 Supp., 60-2525. Before the trial of the action and without the knowledge of plaintiff or the court, the minor children were in some manner removed from Dickinson county by the defendant who met them at Oklahoma City and removed them from that point to her home at Las Vegas, Nev. The case came on for hearing on its merits in Dickinson county. The court after hearing plaintiff’s evidence, defendant not appearing, granted a divorce to the plaintiff, and awarded him the custody of the children. Subsequent to the judgment of the Dickinson court, habeas corpus proceedings were instituted by the plaintiff in the district court of Clark county, Nevada, seeking possession of the minor child in volved in this action, in accordance with the decree and custody order entered in the divorce action by the district court of Dickinson county. While plaintiff did not obtain all the relief sought in the habeas corpus proceeding, nothing was contained in the order of the Nevada court which deprived the' Kansas court of jurisdiction of the minor child. Subsequently the child was brought back to Kansas, and on July 3, 1953, while the plaintiff had the custody of the child in Dickinson county, he filed his motion in the original divorce action, requesting the Dickinson court for an order granting him the permanent custody of the minor child. A copy of the motion, together with the notice that it would be heard on July 30, 1953, was mailed to defendant’s counsel in Nevada. Defendant appeared, specially, objecting .to the jurisdiction of the Kansas court. Defendant, through her counsel, participated in tibe hearing, after which the court sustained plaintiff’s motion and granted him full care and custody of the minor child.
The defendant does not question the jurisdiction of the Dickinson court in granting the divorce. As a matter of fact, she accepted the provisions of the decree and has since married. On this appeal, she contends that the court acted beyond the scope of its jurisdiction in awarding the custody of the children to the plaintiff by its order of February 7, 1953, for the reason that no personal service of summons was had upon her in the action then pending in that court and that its subsequent order after hearing the case upon its merits was also void for the same reason. Defendant’s contention cannot be sustained. It is clear from the record that plaintiff’s verified petition sought a divorce, custody of the children, and an order restraining defendant from removing them from the jurisdiction of the court. At the time of filing the petition and securing the order for custody, as aforementioned, the children were in plaintiff’s possession and were under the jurisdiction of the district court of Dickinson county. The mentioned order of February 7 was made pursuant to the prayer of plaintiff’s petition, and in accordance with G. S. 1949, 60-1507, which provides, in part:
“After a petition has been filed in an action for divorce . . ., the court, . . . may make without bond, and enforce by attachment, such order . . . for the control of the children . . . during the pendency of the action, as may be right and proper, . . .”
The phrase “during the pendency of the action” ■ contained in the foregoing statute means any time from the commencement of the action until and including final disposition thereof. (Bennett v. Bennett, 175 Kan. 692, 266 P. 2d 1021.) It follows that when the petition was filed, and the order was made by the court, jurisdiction attached immediately in the Dickinson court over the divorce action and the future welfare of the children. It cannot be said that the spiriting away of the children, in some manner, from Dickinson county by the defendant, who met them at Oklahoma City and removed them from that point to her home in Nevada, without the knowledge or consent of the plaintiff or the court, in any way deprived that court of its acquired jurisdiction. The court, having obtained jurisdiction of the children upon the filing of the action, rightfully made provision for their custody upon the hearing of the case on its merits and granting a divorce to the plaintiff. G. S. 1949, 60-1510, provides:
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper.”
Under the provisions of the mentioned section, the trial court when granting the divorce was required to make an order concerning the custody of the minor children. (Anderson v. Anderson, 167 Kan. 494, 207 P. 2d 453.) A court order conferring the custody of a child upon one parent or the other is not a finality in the same sense as a final judgment in an ordinary lawsuit. (Janney v. Janney, 159 Kan. 230, 232, 154 P. 2d 131; Moloney v. Moloney, 167 Kan. 444, 206 P. 2d 1076; Kamphaus v. Kamphaus, 174 Kan. 494, 256 P. 2d 883.) In an unbroken line of decisions of this court it has been held that the jurisdiction of the district court over custody of minor children in a divorce action is a continuing jurisdiction, and the court may on proper motion and notice modify and change any order previously made providing for such custody, whenever circumstances are shown which make such modification proper. (Powell v. Powell, 173 Kan. 435, 249 P. 2d 630; Decker v. Decker, 171 Kan. 380, 233 P. 2d 527; Maston v. Maston, 171 Kan. 112, 229 P. 2d 756, and other cases cited under G. S. 1949, 60-1510, and G. S. 1953 Supp., 60-1510.)
The district court of Dickinson county having acquired jurisdiction of the subject matter in the divorce action and the children at the time of the filing of plaintiff’s petition and entering its order of February 7, 1953, granting their custody to him during the pendency of the action, retained jurisdiction of the children, and its subsequent orders with reference to the child in question were valid. Defendant’s future right to custody of the child has not been foreclosed. Should conditions change so that the welfare of the child warrants the granting of its custody to the mother, she may in a proper proceeding ask the district court of Dickinson county to modify or change the order made in this case.
It necessarily follows that the judgment must be affirmed.
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for personal injuries sustained in a gas fire. Upon a trial the jury returned a general verdict for plaintiff and answered special questions. Defendant filed a motion for a new trial which was considered by the court and overruled and judgment was rendered for plaintiff upon the general verdict. Defendant has appealed from the judgment. The facts may be summarized as follows:
The unincorporated village of Healy is situated in the western part of Lane county. In 1948 the defendant undertook the distribution of natural gas through the village. In Healy what is called Amy Road is a north and south road on the east side of the platted portion of Healy. Plaintiff and her husband, both young people, she was nineteen, occupied a residence on the west side of Amy Road. They were tenants, the property being owned by her husband’s father. In October, 1948, the gas was extended by a one-inch service pipe from what the company called its main gas distribution pipe which ran along the west side of the travelled portion of the Amy Road a distance of about 60 feet. The meter and the regulator were set on the outside of the house near a corner. The meter, of course, was to measure the gas and the regulator was to cut down the pressure of the gas from about four pounds in the service pipe to four ounces to go into the house. It appeared to function well until the incident soon to be mentioned.
On October 4,1951, the employees of Lane county were putting a culvert across Amy Road at its intersection with Iowa street which is a short distance south of the residence of plaintiff. In cutting a ditch for the culvert across the road they exposed defendant’s gas main. They notified Mr. Matthies who lived at Dighton, the county seat, and was employed by defendant as local manager and had charge of the distribution system at Healy. He and his assistant, Mr. Stine, went to Healy where this work was being done, reaching there about 11:30 a. m. Under Matthies directions it was planned to raise the gas pipe so the culvert could be slipped under it across the road. The county men uncovered the gas pipe for perhaps twenty feet on each side; the grader was pulled up alongside the pipe, a chain was put around the pipe and around the end of the grader blade and the pipe was raised up four or five inches so the culvert could be slipped under it. The pipe was let down and the dirt which had been removed from the top of it was replaced.
On October 8, 1951, the county and its employees were grading the streets in Healy including the east side of Amy Road. For that purpose they were using a road grader drawn by a tractor which had a blade to cut into the ground and move the earth toward the center of the street.. About 2:00 p. m. on that day they were driving the grader on the east side of Amy Road and the corner of the blade struck the one-inch service pipe leading to plaintiff’s residence. This cut into the pipe and bent it. The operators of the grader examined the pipe carefully and concluded that no gas was leaking. Later it was learned it did, however, pull the pipe partially loose from the meter and regulator with the result that gas got into plaintiff’s residence and in perhaps an hour there was a serious explosion and fire which destroyed the residence and plaintiff was seriously burned. Plaintiff was in the hospital for several weeks where much grafting of skin was done on the burned area, she suffered much pain, and at the close of the treatment was seriously and permanently disfigured and crippled.
This action was filed March 5,1952, and an amended petition upon which the case was tried was filed May 15, 1952, which, briefly stated, alleged the negligence against defendant was that the gas pipes were laid too near the surface; that defendant’s representatives knew the grading was to be done along that street, and that the representatives of defendant did not tell the graders where the gas pipes were laid nor did anyone representing defendant stay there to see that no harm was done. Subsequent pleadings were filed which put these allegations in issue. The trial was had on April 7 and 8, 1953. At the close of the trial, as previously stated, the jury rendered a general verdict for plaintiff and it was asked and made answers to the following special questions:
“1. Do you find from the evidence that the defendant buried its gas line below the surface of the road in the vicinity and in front of the McCarty home? Yes.
“2. Did the act of the County Employees of Lane County, Kansas, in striking the gas line, cause the explosion and damage resulting to the plaintiff? Yes, indirectly.
“3. Did Lane County or its employees notify Kansas-Nebraska Natural Gas Company that they were going to do any ditching in front of the McCarty house? Yes.
“4. Did Lane County or its employees know where the service line was located running to the McCarty house? No.
“5. State what act or acts of negligence, if any, the defendant, Kansas-Nebraska Natural Gas Company, committed. Gas line not buried deep enough. Should have kept a gas company man on job while work was being done.”
Defendant filed a motion for a new trial which was considered by the court and overruled and judgment was rendered for plaintiff upon the general verdict of the jury. In due time defendant filed its notice of appeal. This appeal was only from the judgment rendered by the court upon the general verdict. There was no appeal taken from the order of the court overruling the motion for a new trial, or from any other ruling of the court adverse to the defendant.
This is an appellate court. In cases tried in the district court there may be many questions passed upon which the party appealing does not, for some reason, care to ask this court to review. The appeal is necessarily limited to the questions from which an appeal is taken. The result is that the appeal brought to us is on the judg ment of the court. Examining the judgment in this case we find nothing wrong with it unless it is some of the trial errors set out by the defendant in its motion for a new trial. Since no appeal has been taken from that order we are unable to review it. Our cases on that point are numerous.
In Mathis v. Public School District No. 103, 175 Kan. 453, 264 P. 2d 1082, it was held:
“Where the action of the trial court in overruling a motion for new trial is not specified as error, trial errors are not subject to appellate review.” (Syl. 1.)
and in the opinion p. 456 it is said:
“Long ago this court announced the rule, to which it has consistently adhered, that where the overruling of a motion for a new trial is not specified as error, trial errors will not be reviewed. See, e. g., Gas Co. v. Dooley, 73 Kan. 758, 84 Pac. 719; Brewer v. Harris, 147 Kan. 197, 75 P. 2d 287; Heniff v. Clausen, 154 Kan. 717, 121 P. 2d 196; Palmer v. Helmer, 159 Kan. 647, 157 P. 2d 531; Holmes v. Kalbach, 173 Kan. 736, 742, 252 P. 2d 603; and numerous other decisions cited in Hatcher’s Kansas Digest, Rev. Ed., Appeal & Error, § 181; West’s Kansas Digest, Appeal & Error, § 719 (10).”
In Weede v. Bannon, 175 Kan. 569, 570, 265 P. 2d 1025, it is said:
“In passing, it is noted that defendant does not specify as error the order overruling his motion for a new trial. That being the case, alleged trial errors, such as rulings on the admissibility of evidence and concerning instructions, are not open to appellate review. (Brewer v. Harris, 147 Kan. 197, 75 P. 2d 287; Heniff v. Clausen, 154 Kan. 717, 121 P. 2d 196; Palmer v. Helmer, 159 Kan. 647, 157 P. 2d 531; and Holmes v. Kalbach, 173 Kan. 736, 742, 252 P. 2d 603.)”
In Crowder v. Lindbergh, 175 Kan. 671, 265 P. 2d 851, it is said:
“Appellant contends the court committed various trial errors and rendered an erroneous judgment. Appellant, however, has appealed only from the judgment rendered and not from the order overruling its motion for a new trial. It follows alleged trial errors are not reviewable. (Hardman Lumber Co. v. Spitznaugle, 130 Kan. 346, 286 Pac. 235; Smith v. Kansas Transport Co., 172 Kan. 26, 238 P. 2d 553.)” (p.672.)
In Murphy v. Cole, 175 Kan. 822, 267 P. 2d 959, it is said:
“It may be observed that specifications 2 and 3 refer to trial errors. Appellants did file a motion for a new trial which was overruled but that ruling is not specified as error. We have repeatedly held that errors relating to matters occurring at the trial, for which a new trial is asked, cannot be considered on appeal unless the action of the trial court in overruling the motion is specified as error. See cases collected in West’s Kansas Digest, App. & E., § 719 (10) and Hatcher’s Kansas Digest, App. & E., § 181.” (p. 822.)
We find no error in the case. The judgment of the trial court is affirmed.
Wedell, J., dissents. | [
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The opinion of the court was delivered by
Parker, J:
This is an action to recover damages alleged to have been sustained as a result of the action of a mob within the corporate limits of the defendant city. The appeal is from an order overruling a demurrer to the plaintiff’s amended petition.
Except for differences in the identity of the plaintiff and inconsequential allegations of the challenged pleading the issues raised by this appeal are the same as those involved and decided in Hibbs v. City of Wichita, (No. 39,414) 176 Kan. 529, 271 P. 2d 791, (this day decided). Therefore based on what is said and held in that decision the order and judgment herein is reversed and the cause is remanded with directions to sustain the demurrer to the amended petition.
It is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This is an original action in quo warranto by the state in the name of the attorney general, whereby the plaintiff asks us to oust two boards of county commissioners from exercising alleged, assumed and illegal powers having to do with the construction of a bridge across the Kaw River, which flows between the two counties. Each of the two boards of county commissioners have answered and parties have stipulated as to the facts. The action has been submitted to us for final determination.
The Kaw River runs in a meandering line in a general easterly direction. Highway 40 and 24 runs east and west on the north side of and in a general way parallel to the river. Towns on Highway 40 and 24, of which we shall speak, are St. Marys and approximately six miles west, Belvue. Each town is about a mile north of the river. Wabaunsee county is on the south side of the river. Pottawatomie county on the north. The river flows between the two counties.
Prior to 1950 there were four bridges across the Kaw between these two counties. Two of them went out in 1950, a third one went out in the flood of 1951.
The petition alleges the two boards met in a joint session on August 27, 1951, to discuss the building of such a bridge, under the provisions of Art. 2, Chap. 10 of G. S. 1949; that it was agreed the county engineers of the two counties should proceed to select a favorable site and report to the two boards; that a site was selected at a point on the river approximately 2M miles east of Belvue, which would be referred to as the East Proposed Site; that on September 17, 1951, the two counties made an agreement with a firm of- engineers to prepare preliminary estimates for the cost of the bridge upon that site; that on January 31, 1952, at a joint meeting of the boards they were authorized to make an application for federal funds and both counties agreed to share the remainder of the cost equally; that on February 12, 1952, they requested a secondary road designation from the state highway commission in order that the north approach to the bridge might be upon a secondary highway and this request for a secondary road designation was at a location upon the site selected about 2M miles east of Belvue; that on May 15, 1952, both counties were informed that the federal approval of the bridge project had been obtained and on June 12, 1952, at a joint meeting it was voted to hold an election on August 15, 1952, to determine whether bonds should be voted with which to build such bridge; that each board authorized such an election on the question whether each county would issue $250,000 to pay its respective cost of building a bridge at a point on the Kaw approximately 2% miles east of Belvue; that the ballots used stated the question was whether bonds should be voted to build a bridge at such site; that said elections were duly and regularly held in both counties the same day and by a more than two-thirds majority said bond issues were approved by the electors of the respective counties and the site thus established by said election; that on August 11, 1952, a three-way contract was entered into by the counties, the state highway commission and an engineering firm for the payment of engineering fees; that thereafter at the request of the board of Wabaunsee county the engineering firm selected a site at a point approximately one-fifth of a mile east of Belvue, known as the West site; that on April 24, 1953, the board of Wabaunsee county declared itself to be unanimously in favor of the East site; that on May 11, 1953, the board of Pottawatomie county voted two to one in favor of the West site; that on August 3, 1953, the board of Wabaunsee rescinded their action of April 24, 1953, and voted that the bridge be built at a third site approximately 1% miles east of Belvue, about 800 feet east of the West site and this site was known as the Middle site; that all the proceedings occurred after the bond election, wherein the electors by their affirmative vote selected the original site about 2/2 miles east of Belvue; that on August 14, 1953, at a joint meeting of the two boards a resolution was passed by a vote of 5 to 1 to proceed with ■ the construction plans for a bridge ■ at the Middle site at a point about a mile and one-fifth west of the East site; that the actions of the two boards selecting the Middle site constituted an illegal exercise of a discretionary power no longer possessed by defendants; that the East site was selected by the people at the election and any attempt to select any other site was a refutation of such action and illegal, and defendants were without discretionary power to change the location to any other site; that the bonds had been sold and in order to avert unnecessary delay and risk the loss of federal funds, the original jurisdiction of the court has been invoked.
The prayer was the boards be ousted from exercising the illegal powers described and that this court declare the law applicable and direct the defendants to proceed with the construction of the bridge upon the site selected by the people at a point approximately 2/á miles east of Belvue.
The boards filed similar answers in which they admitted many of the allegations of the petition and denied that the county engineers picked a site for the bridge, as alleged; that they picked a typical location for a cost estimate, which would reflect the cost of any bridge built in that general vicinity; denied that the consulting engineers picked alternative sites but the three sites were submitted to the boards for final selection; denied that the electors by their affirmative vote selected the original site; denied that their action in selecting the Middle site constituted an unlawful and illegal act and alleged that unless plaintiff be denied the relief sought the construction of the bridge would suffer irreparable harm and possible loss of the bridge.
The prayer was that the writ be denied.
The stipulation of facts as far as we are concerned states that on August 24, 1950, at the preliminary meeting the two boards decided to have their county engineers select a favorable location and report; that it was originally contemplated that the consulting engineer pick a tentative, typical location, but his fee was considered too high and the boards instructed their county engineers to do it; it was also contemplated that the preliminary engineering on the typical location would give the respective county boards and the consultant sufficient information with which to proceed to pick a permanent site for the bridge. The contract between the two county boards and the engineering firm provided the counties agreed to select tentative sites; one of these is referred to as 2/2 miles east of Belvue, thence south at right angles, 2 miles to the Kaw River; it was necessary to make a request of the engineer of secondary roads for a secondary road designation; this request referred to a location about 2M miles east of Belvue; the request for federal aid referred to the same location; the letter from the engineer of secondary roads advising that federal funds had been approved only mentioned a location between Belvue and St. Marys; the resolution for each county to call an election referred to a point approximately 2/2 miles east of Belvue; the notice of the special election referred to a point approximately 2% miles east of Belvue; the ballot used that term, it is recited in each one of the bonds; the agreement between the two counties and the firm of consulting engineers for making of survey, preparation of plans, specifications and estimates referred to this location in technical language.
After all these steps the stipulation of facts states that on January 26, 1953, the consultant “flew” the Kaw from Topeka to between Belvue and St. Marys and picked two tentative sites, one was the site that has heretofore been referred to as the East site and the other was a site described in the report, which will hereafter be known as the West proposed site; on April 24, 1953, the board of Wabaunsee county voted unanimously for the East site; on May 11, 1953, the Pottawatomie board voted for the West site two to one; on June 16,1953, the two boards, the consultant representative of the Federal Bureau of Public Roads and of the state highway commission met at the proposed site, the consultant suggested a third tentative site known as the Middle proposed site; shortly afterwards each board received a letter. It follows:
“Yesterday afternoon, Mr. Frazier presented his estimates of the quantities for the approaches to the bridge on the above project to Mr. Tipton and Mr. Bolnick in our office. They showed that the west line would be the most economical with the one on the section line just east of it a fairly close second. The embankment quantities were about 100,000 and 145,000 cubic yards respectively. The east line would require about 300,000 cubic yards to provide a grade equal in utility to either of the first two. The east line would also require a bridge which would not be needed on either of the other lines. This would cost about $50,000.
“We discussed these estimates at some length and also the relative merits of the lines as regards traffic and suitability for bridge sites. After considering the factors mentioned above, we would like to recommend that the bridge be located on the east line of Sections 11 and 14, T. 10 S., R. 11 E. or within 300 or 400 feet upstream from it.
“Unless Mr. Frazier is notified differently, he contemplates starting his survey June 29. Please let him know immediately if you do not agree with our findings.
“Yours very truly,
WALTER JOHNSON Engineer of Secondary Roads By /s/ Geo. Epps
GEORGE EPPS ' Bridge Engineer.”
The location referred to in the above letter is approximately the so-called Middle location; on August 3,1953, the Wabaunsee county board rescinded its earlier action and voted for the Middle location; on August 17, 1950, Pottawatomie voted for the Middle location; the Middle location is 1.51 miles from the east city limits of Belvue and south at right angles until such line intersects with the Kaw; it is also 2.31 miles in a southeasterly direction from a point where U. S. Highway 40 and 24 enters the east city limits of Belvue and south at a right angle until such line intersects with the Kaw.
The position of the state may be stated briefly. It is that the two boards of county commissioners prior to the election had right to exercise a wide discretion in locating the bridge for submission to a vote. Counsel states they exercised that discretion when they did submit it, but that once having submitted their choice of locations to the public, and having received a mandate from the public so to fix the location, no discretion rested in them to act in a manner contrary to that mandate.
We cannot give the notice of the election, the ballot and the language used quite that strict an interpretation. The language upon which the state relies itself is not that strict. Throughout the phrase “location 2% miles east of Belvue” is preceded by the word “approximately.” There is not the least intimation of fraud or bad faith on the part of any public official. The statute, pursuant to which the project is going forward, is G. S. 1949, 10-204. It simply provides that “Whenever any two counties . . . are separated by a stream of water” the counties may join in the construction of a bridge and may share the expense. G. S. 1949, 10-205, provides for an election and that three-fifths of the votes cast at the election are necessary; and then the commissioners shall advertise for bids. There is no provision for submitting the location of the bridge to a vote.
The matter is analogous to the one with which we were confronted in Johnson County Commrs v. Robb, 161 Kan. 683, 171 P. 2d 784. There an election was had on the question whether bonds would be issued to build a sewer system and a sewage disposal plant. The board of county commissioners adopted a resolution setting forth certain items of the proposed improvements. Item III was a treatment and disposal plant, plant site and equipment therefor to be located near Turkey Creek and Roe Boulevard in Wyandotte county. The election notice set out the boundaries of the district and listed the proposed improvements. Under item III was the proposed treatment works in the Turkey Creek Valley near Roe Boulevard, in Wyandotte county. The form of the ballot contained no reference to where the plant was to be located. The bonds carried and there was threatened litigation as to an acquiescence of a site in Wyandotte county. The board thereupon found a suitable site in Johnson county, approximately a quarter of a mile from the original Wyandotte county site, which could be acquired without litigation, although its cost would be greater, and directed the Johnson county site be acquired.
The auditor refused to register the bonds. One of his grounds was that inasmuch as the notice of election to vote bonds set out the site of the sewage disposal plant as being in Wyandotte county, as well as the cost, and the board contemplated obtaining a different site in Johnson county at a greater cost, this constituted an illegal departure from the action authorized by the voters. In dealing with this argument we said:
“We think the voters were fully apprized of the entire improvement proposed, and that the decision of the board, subsequent to the election, to acquire a site other than the one originally chosen, but within the approximate location, and at a cost, with the other improvements, within the amount authorized by the voters, did not warrant the auditor’s action in refusing to register the bonds.”
The state attempts to distinguish the instant case from the above by pointing out that in the instant case the boards were not confronted with any situation of necessity as confronted the Johnson county commissioners. The statement is not quite correct. Mr. Johnson’s letter to the two boards of county commissioners pointed out that substantial savings would result from abandoning the so-called East site and locating the bridge at the Middle location. At any rate, the opinion is definite authority that an election with a notice, such as we have here, does not deprive the governing bodies of the municipalities, such as the county boards in this case, from the right to exercise any due discretion whatever. The county boards in this case were charged with the duty of locating this bridge at the most feasible and economical point under all the surrounding facts and circumstances. The decision to locate it a mile farther up the river than the approximate location mentioned in the election was not such a departure as to warrant the exercise of a writ of quo warranto against the county boards to oust them from proceeding to build the bridge at the location finally agreed on. Such is a substantial compliance.
The judgment will be for the defendants. | [
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The opinion of the court was delivered by
Wedell, J.:
The plaintiff appeals from an order sustaining a
demurrer to his evidence in an action involving a collision of motor vehicles in a rural intersection.
The only material testimony was that of appellant. It, in substance, was:
The collision occurred on the morning of October 8, 1951; he was driving a 1950 Ford one ton truck; the day was clear and the road on which appellant was driving was dry and in good condition; he approached the intersection on a county road from the east; appellee approached the intersection on a township road from the south; both roads were fifty feet wide from fence line to fence line; there were no stop signs on any side of the intersection; there were road signs both east and west of the intersection indicating that the county road continued or turned to the north towards Berryton; both parties were thoroughly familiar with the blind intersection, having previously approached it from all directions; the east and west road carries the heavier traffic; there are wide curves to the north of the intersection on both the east and west sides thereof but not to the south; the east and west road is a gravel road; the township road to the south of the intersection is a rock or gravel road; there is a slight rise towards the intersection from both the east and south; the southeast corner of the intersection is a blind corner due to a hill or knoll to the southeast and to grass and weeds which were higher that year by reason of the heavy rains; the township road was depressed below the surface of the surrounding terrain which, with all other facts, combined to make that a blind corner; a ravine crosses the east and west road at a point approximately 400 to 500 feet east of the intersection; at that point and at some other points a traveler approaching from the east could see to the south or township road and at other points he could not; the distance across there would be approximately a fourth of a mile or perhaps sixty rods; the same would be true concerning a traveler on the township road south of the intersection who was looking towards the northeast; for a short distance nearer to the intersection the southeast corner was entirely blind to both drivers; a car coming from the south passes out of sight behind the bank.
Appellant’s testimony, in substance, further disclosed:
He looked to the north and to the south as he crossed the ravine and saw no cars; that point was 400 or 500 feet east of the intersection; he was then traveling at the rate of approximately fifty miles per hour; at that point he reduced his speed to between forty and forty-five miles per hour; the next time he looked was after he had entered or just as he was entering the intersection; he looked to the north; he looked to the south, he believed, just the instant before he was struck; he first saw defendant’s car after he was in or just as he was entering the intersection; he first saw defendant’s car after he was partly or most of the way through the intersection; he saw the defendant’s car for only a second; he stated it happened “Just like that”; he did not see defendant’s car long enough to estimate its speed; he further stated, “Well, I would say I was in the intersection first”; he heard no horn or warning sign prior to the impact; he did not sound his horn prior to entering the intersection; he did not apply his brakes; he went right into the intersection at about forty or forty-five miles per hour; he could not stop at that speed in less than fifty to fifty-five feet; when he looked south at the intersection it was too late to stop; he stepped on the gas and tried to get clear; he supposed he turned the wheel somewhat, but just very slightly, if any.
Appellant’s testimony, in substance, further disclosed:
Defendant’s car struck the left rear wheel and left side of plaintiff’s truck bed; the left wheels of his truck were north of the center of the east and west road; the front of his vehicle was west or just past the center of the intersection when it was struck; the left rear wheel of his truck was at about the center of the road, maybe a little to the west; the left side of the bed of his truck which was hit was directly above the left rear wheel; the impact pushed the back end of his truck north; his truck continued in a sideway position and came to a stop when it hit the ditch on the south side of the road about 100 feet west of the intersection; when it hit the ditch the rear end of his truck swung around leaving the truck facing the north after it came to rest; when defendant’s car stopped it was facing north with its front end just north of the center of the east and west road.
Defendant demurred to plaintiff’s evidence on the ground it did not establish a cause of action and showed plaintiff was guilty of contributory negligence. In sustaining the demurrer the district court concluded plaintiff’s own evidence disclosed he, as well as the defendant, was guilty of negligence at the blind corner.
Numerous cases from this and other jurisdictions are cited by the parties in support of their respective views. It would add little, if anything, to the body of our law to review them all and we shall not do so. Appellant relies primarily on our decisions in Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 204 P. 2d 752; Thompson v. Barnette, 170 Kan. 384, 227 P. 2d 120; Fry v. Cadle, 171 Kan. 14, 229 P. 2d 724; and Cain v. Steely, 173 Kan. 866, 252 P. 2d 909. Whatever one’s views may be concerning the correctness of the decisions in some of those cases it is readily apparent they cannot be controlling in the instant case. There are highly important facts which plainly differentiate them from the instant one.
In none of them did the plaintiff run into a known blind intersection at a speed which he could not possibly control within the intersection such as that admitted by appellant in this case. In each of them the plaintiff at least testified he had maintained a continuous lookout for approaching vehicles on other highways or streets before attempting to enter the intersection. In each of them plaintiff testified he reduced his speed to a low rate before entering. Their speed, prior to reducing it, already had been much lower than that at which appellant entered the intersection in the instant case. In all of them plaintiff at least testified he had entered well into the intersection first and also concerning circumstances which in his mind indicated exercise of caution. In three of them there also was some indication plaintiff exercised, or thought he exercised, some judgment, after having entered the intersection first, in determining whether he might safely proceed.
It should be, and probably is, unnecessary to narrate further the facts in those cases. Since appellant, however, insists those cases are controlling it may be well to state briefly the facts therein which were material on demurrer to plaintiff’s evidence.
In Lawrence v. Kansas Power & Light Co., supra, plaintiffs, passengers in a car, brought an action against a bus company to recover damages resulting from a collision at an intersection in the city of Topeka. There were no stop or caution signs at either street on which the parties entered the intersection. Neither street was a through street. The car in which plaintiffs were riding approached the intersection from the south. The driver was alerted by one of the passengers that a bus was approaching from the east. The driver said, “I see it.” The car was then twenty-five feet south of the intersection and beyond the north side of a building located to the southeast of the intersection which previously had obstructed a view to the east. The parties in the car thought the bus was traveling about twenty-five miles per hour. At that time the bus was about 128 feet east of the intersection. The car was traveling about fifteen miles per hour. As it entered the intersection the driver of the car thought the bus was about ninety feet east of the intersection. The driver of the car thought he had time to cross the street ahead of the bus and increased his speed not to exceed twenty miles per hour. The paved portion of each street was twenty-six and one half feet wide. The bus struck the rear part of the car which had not cleared the east and west street. In reversing the order of the district court, which had sustained defendant’s demurrer to plaintiffs’ evidence, this court repeated the rule that where reasonable minds might differ the question of negligence is one for the jury. It further pointed out the car had traveled about thirty feet, while the bus had traveled only about nine feet in the intersection, and that G. S. 1949, 8-550 (a), which gave the car first in the intersection the right of way, applied and therefore (b) of that statute, which provides when two vehicles enter an intersection at the same time from different highways the driver on the left shall yield the right of way to the driver on the right, did not apply.
In the Thompson case, supra, the collision occurred at an intersection of county roads. There were no road signs. Both parties were familiar with the intersection. Plaintiff, in substance, testified: He approached the intersection from the south and was bound in a northerly direction. The intersection was known as a “blind corner,” particularly to the southeast by reason of an embankment on the east side of the north and south road. There were hedge trees on the south of the east and west road. Plaintiff was traveling fifteen or twenty miles per hour as he approached the intersection. He, however, slowed down, looked both ways and then moved into the intersection at a speed of only thirteen or fourteen miles per hour. After he had moved into the intersection he first saw defendant’s car coming from the east “like a rocket.” He then increased his speed to avoid the collision. Defendant’s car ran into the right center of plaintiff’s car. Defendant’s demurrer to plaintiff’s evidence was overruled. This court concluded that since plaintiff’s car was well in the intersection while defendant’s car was some distance east of the intersection, the question of plaintiff’s negligence was one on which reasonable minds might differ and that the demurrer was properly overruled. The jury made findings of fact in that case but we need not pursue them as we are presently concerned only with a demurrer to evidence.
In the Fry case, supra, the collision occurred at an intersection of rural roads without warning signs. Plaintiff approached the intersection from the east. Defendant approached it from the north. The view to the north and east of the intersection was obstructed by an embankment, hedge and weeds on the north of the east and west road. The hedge had been cut back sixty feet from the intersection. There were weeds from there to the intersection. Plaintiff had been traveling at thirty to forty miles per hour. When about 200 feet east he reduced his speed to thirty miles per hour. As he approached from the east he continued to look to the north and south. He testified he saw no cars until after he had entered the intersection. He first saw defendant’s car when he was in the intersection and defendant’s car was twenty-five feet north of it. Plaintiff applied his brakes and swerved his car to the south. Defendant’s car struck plaintiff’s car at a point on the west side of the center of the north and south road. The defendant frankly admitted he had not been looking, just didn’t see plaintiff’s car, and drove into it without reducing his speed. This court applied G. S. 1949, 8-550 (a) which gave plaintiff the right of way because he was in the intersection first. We held under the circumstances plaintiff was not guilty of contributory negligence as a matter of law.
It should not be necessary to analyze the facts in the case of Cain v. Steely, supra, but we shall do so briefly. Plaintiff’s evidence, in substance, was: The collision occurred at an intersection of city streets. Plaintiff approached it from the south and defendant approached it from the west. There were no stop signs or traffic controls. Plaintiff saw defendant approaching, she checked the traffic in other directions and then again turned her attention to defendant’s car. She continued to watch defendant’s car. She estimated the speed of her car at fifteen to twenty miles per hour and that of defendant at twenty to twenty-five miles. She thought defendant was slowing down. When she reached the south curb line defendant was the width of a sidewalk west of the intersection. Plaintiff entered the intersection first but slowed down some more before she did so. Defendant’s car struck her car on the left side near the rear panel. The collision occurred in the northeast quadrant of the intersection. The demurrer to plaintiff’s evidence was overruled and we affirmed the ruling. Here again we need not discuss the jury’s special findings which supported the verdict in her favor as we are concerned with a demurrer. Plaintiff’s evidence showed she entered the intersection first and after repeated observations of defendant’s car, believing it was stopping, entered the intersection very slowly. We applied G. S. 1949, 8-550 (a) which gave her the right of way, she having entered the intersection first. We further held that under the conditions stated plaintiff had the right to assume defendant would yield the right of way to her. The last stated rule has been applied to similar circumstances in various cases in this and other jurisdictions.
As previously stated we think the foregoing cases and other similar ones which might be cited are not controlling in this case. It, of course, is elementary that in considering plaintiff’s evidence on demurrer plaintiff is entitled to have his evidence considered in the light most favorable to him. On the other hand we also must adhere to an equally well-established rule that a party is bound by his own plain and unequivocal admissions. That is especially true where, as here, plaintiff’s case stands solely on his own testimony and no physical or other facts are in dispute. Here there is no room for speculation concerning appellant’s evidence. It need not be restated fully but it may be helpful to recall a few of his most pertinent admissions on which the district court sustained a demurrer to his evidence.
He admitted he did not see appellee’s car long enough to estimate its speed. He did, however, admit its front end came to a stop in the north side of the intersection. On the other hand appellant admitted his truck traveled sideways 100 feet west of the intersection and did not come to a stop until after it hit the side of the south ditch. It then swung around and came to rest facing the north. Appellant was thoroughly familiar with the blind corner. He admitted he could not have seen appellee’s car approaching from the south, when it passed out of sight behind the knoll, until he was entering, or had entered the intersection from the east.
Appellant admitted he did not maintain a lookout for a car to the south after he left the ravine 400 to 500 feet east of the intersection until he was in or was entering it. He admitted he could have seen a car approaching on the south road while he was at certain places between the ravine and the intersection. When asked on direct examination if he looked south again as he approached the intersection he said “Yes.” But he was not asked and did not testify relative to the distance east of the intersection, if any, from which he looked again before reaching the intersection. He merely stated he looked to the north first and then to the south as he approached the intersection and saw no cars. On cross-examination he was expressly asked to. fix the place at which he first looked again after leaving the ravine. He stated unequivocably it was “just the instant before he struck.” He repeatedly also stated the next time he looked after leaving tire ravine was just as he was “coming into it or right in it, right along in there” (meaning the intersection). He testified he first saw appellees car at that time and also stated he first saw it “After I was partly or most of the way through the intersection.”
Wherever appellant may have been when he first looked again and saw appellee’s car, he admitted when he looked south again after leaving the ravine it was too late to stop. He stated it happened “Just like that,” and that he could not have stopped in less than fifty or fifty-five feet. Notwithstanding his full familiarity with the blind corner and that he could not see how near a car approaching from the south might be, he admitted he did nothing to be in a position to protect himself or others from injury. He admitted he did not apply his brakes but, as he stated, he went “right into the intersection.” He admitted he did so at a speed which would have carried him not only through the intersection, but the distance from one fence line to the other, before he could have stopped his truck had he applied the brakes. Moreover, he not only frankly admitted he failed to attempt to get his truck under control for whatever he might encounter at the blind intersection, whether it be a vehicle which entered it first or last, but frankly admitted he did not even honk his horn to warn others of his approach to the hazardous crossing.
Was the district court justified in concluding appellant’s admissions disclosed he, as well as appellee, was plainly guilty of negligence which contributed to the collision? If he was- not guilty of such negligence, as a matter of law, courts would be unable to sustain a demurrer to the same admissions of defendant streetcar, bus and taxicab companies and other defendants that they ran through a completely blind intersection without regard to consequence, if they contended they had the right to do so, because they had the right of way. We think this court, like most courts, would give little, if any, consideration to such a contention. If we are to have a reasonably symmetrical pattern in our law it must be consistently applied.
Appellant, in substance, argues: He captured the right of way by getting into the intersection first and he had it because he was to the right of appellee. He, therefore, contends he was under no duty to keep a further lookout, to reduce his speed or even to sound a warning of his approach to others who could not possibly see him. He relies on G. S. 1949, 8-550, which provides:
“(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. (b) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. (c) The foregoing rules are modified at through highways and otherwise as hereinafter stated in this article.”
In earlier years the speed of vehicles at intersections was fixed at a definite low rate of miles per hour. Appellant overlooks the statute in effect on the date of this accident, which occurred on October 8, 1951. It was G. S. 1951 Supp. 8-532. It provided no person should drive a vehicle on a public highway at a speed greater than is reasonable and prudent under existing conditions. (Amended somewhat by laws 1953, chapter 47, but not in the above particulars; G. S. 1953 Supp. 8-532.) That would be the common law rule absent a statute. That is the degree of care now required at intersections, not only in this state but generally, absent a more specific statute. (Orr v. Hensy, 158 Kan. 303, 308-309, 147 P. 2d 749, and cases therein cited.) We think no one will contend this collision did not occur at a place known to be exceedingly hazardous. The last mentioned statute expressly refers to hazardous places, including intersections.
In view of the point of collision, appellant’s testimony relative to the point at which he first saw appellee’s car, the speed at which he was driving, and the distance a car travels in a second at forty or forty-five miles per hour, it well might be debated whether appellant entered the intersection first or whether he knew who entered it first. His answer, to be noted presently, lends weight to that view. If, however, he entered the intersection first it, under no circumstances, could have been by more than a split second, according to his own testimony. In any event we accept his statement, although weak, at full face value on demurrer. It was, “Well, I would say I was in the intersection first.”
Assuming he was and, of course, granting he was traveling to the right of appellee, was he under no duty to do anything whatever to avoid injury to himself and others at such a known hazardous crossing before it was too late?
Is a right-of-way statute so exclusive, inflexible and absolute as to absolve one having the prior right from all duty to exercise due care? We have held it is not. In Ray v. Allen, 159 Kan. 167, 152 P. 2d 851, plaintiff was well into the intersection first. He, too, assumed the right of way absolved him of his own duty to exercise due care. He made no effort to stop within the intersection in order to avoid a collision. He said, “I could have stopped but why should I stop when the right of way was mine.” The contention did not appeal to the district court or to this court. In affirming the order sustaining a demurrer to plaintiff’s evidence we held the facts were not such that reasonable minds might draw different conclusions under such circumstances.
In Cruse v. Dole, 155 Kan. 292, 124 P. 2d 470, the driver of the car entered the intersection first from the east on a township road. Defendant entered it last from the north on a county road. There were no road signs. At a point fifty feet east of the east line of the intersection plaintiff had a clear view to the north of over 300 feet, which increased as he approached. When about twenty-five to thirty feet east of the intersection he testified he was traveling about ten to fifteen miles per hour; that he then looked north and saw defendant’s car between 250 and 300 feet to the north traveling at a speed which plaintiff believed to be thirty to thirty-five miles per hour. Plaintiff thought he could stop in ten feet. After seeing defendant’s car he entered the intersection. He did not look north again but proceeded without deviating or putting on his brakes. The next time he saw defendant’s car was when it was entering the intersection. He heard the brakes of defendant’s car screeching. He said he looked up and defendant’s car “was right on top of me.” Each car was on its right side of the road. Defendant’s car hit plaintiff’s car on the right side just beyond the front wheel.
Plaintiff contended he entered the intersection first and that under G. S. 1941 Supp. 8-550 (a) he had the right of way; he, therefore, had the right to assume defendant would obey the law and stop or so control his car that plaintiff could pass safely. The court refused to sustain such a contention and held the mere fact plaintiff had the right of way did not absolve him from his own negligence in failing to keep a lookout for defendant’s car and observe what defendant might do; he owed such duty for his own welfare and that of his wife, who was riding with him, and who died as a result of injuries sustained. We further stated:
“We think that men of reasonable minds would agree that the conduct of Mr. Cruse in operating his car was below the standard to which he should have conformed for his own and his wife’s safety.” (p. 296.)
Plaintiff’s negligence, however, was held not to be imputable to his wife under the circumstances narrated in the opinion.
Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P. 2d 924, involved a collision at a city street intersection between a taxicab in which plaintiff was the passenger and another vehicle. There were no stop signs. The taxicab driver testified he entered the intersection first. Concerning the taxicab driver we, in part, said:
“It is necessary to touch upon only one other feature of the cab driver’s negligence which is not specifically covered by the special findings. He testified, ‘I did not stop my car before entering the intersection, notwithstanding the fact my vision was obstructed by cars standing at the curb.’ Irrespective of the absence of a stop sign, it manifestly was his duty, if his view was obstructed, to have stopped or to have slowed down sufficiently to have enabled him to avoid colliding with the other car. He did neither and his negligence contributed to the resulting collision.” (p. 94.) (Italics supplied.)
This court held both defendants, under established facts, liable, as a matter of law, for their failure to exercise reasonable care at a hazardous intersection. In the instant case all essential facts are established by appellant’s admissions.
Orr v. Hensy, 158 Kan. 303, 147 P. 2d 749, involved another collision at a rural intersection. There were no stop signs. Plaintiff approached from the east and defendant from the north. Plaintiff was familiar with the intersection. He said he saw no cars approaching as he neared the intersection. He said he saw defendant’s car for the first time when it was twenty or thirty feet north of him. Plaintiff’s car was struck after its front wheels had crossed over the center of the north and south road. There was no sharp dispute in the evidence and the jury’s answers were in exact accord with plaintiff’s evidence relative to the matters on which he testified. The principal question on appeal was whether the jury’s special findings convicted plaintiff of contributory negligence as a matter of law. The jury, in part, found there was nothing which prevented plaintiff from seeing defendant’s car approaching from the north when plaintiff was eighty or ninety feet or when he wás 200 feet east of the crossing; that defendant’s car was 150 to 180 feet north when plaintiff was eighty or ninety feet east of the intersection. Plaintiff entered the intersection first and insisted he, therefore, had the right of way under G. S. 1949, 8-550 (a). We concluded the fact he had the right of way did not absolve him of his own negligence in having failed to keep a proper lookout for defendant’s car and to keep his car under reasonable control. We held:
“A motorist about to enter an intersection of public roads momentarily ahead of another motorist on his right cannot be heard to excuse his own failure to observe the approach of the other on the presumption that the latter whom he did not see would yield the right of way.” (Syl. ¶ 3.)
In the course of the opinion it was said:
“In this case, of course, the two cars did not enter the intersection at exactly the same time. Plaintiff’s car entered the intersection at 20 miles per hour, which would be 29% feet per second. As the two cars collided about 27 feet west of the point where plaintiff’s car entered the intersection, defendant’s car could not have entered it more than one second behind plaintiff’s. It may well be doubted whether the legislature contemplated that the right of precedence at a country crossroads would turn on the matter of a split second between approaching motorists.” (p. 310.)
The books are filled with decisions holding a blind intersection, without stop signs or other traffic signals, presents a highly hazardous place which all parties should approach with caution commensurate with the danger involved and this is especially true where its hazards are well known. The established rule concerning the duty of a ’driver entitled to a right of way is plainly stated in the textbooks of recognized authorities. In 3 Berry on Automobiles, 7th ed., § 3.02, the author states:
“In approaching an intersection where his view of-the intersecting highway is obstructed a motorist should have his car under such control that he can avoid collision with approaching vehicles without regard to the question of priority of ways.” (p. 8.) (Italics supplied.)
In 3-4 Huddy’s Cyclopedia of Automobile Law, 9th ed.', after discussing various right-of-way statutes, it is said:
“A statute so fixing the right of way is to be reasonably construed and applied, so as to embrace all situations in which the danger of collision exists. Its main purpose is to demand care of the driver commensurate with the danger of collision. This right of way is not an absolute right, but a relative right. The statute fixing it is a road regulation and not an inflexible standard by which to decide questions arising out of collisions at intersections.” (p. 254, 255.) (Italics supplied.)
In 2 Blashfield’s Cyclopedia of Automobile Law and Practice, perm, ed., § 1024, it is stated:
“Although a driver of a motor vehicle has the right of way at an intersection over a driver approaching on an intersecting road, either because of priority of approach or because the traffic regulations give the right of way to vehicles approaching from the right or to travelers on favored streets or going in favored directions, the right so given is not exclusive, but instead is at all times relative and subject to the fundamental common-law doctrine that he should exercise the right so as to avoid injury to himself or others.”
The reader is referred to the numerous decisions supporting the text in each of the foregoing authorities. An early case (1920) is Rosenau v. Peterson, 147 Minn. 95, 179 N. W. 647. Although certain language in the opinion has been explained in some of the later cases its fundamental statement has been repeatedly cited in later Minnesota cases and in cases from numerous other jurisdictions. In discussing a right-of-way statute the court held:
“The rule of the statute is one of convenience and was intended to standardize duties and obligations at intersecting highways and streets, but does not absolve one having the prior right from independent acts of negligence at such crossings.” (Syl. ¶ 3.)
Appellant, however, in substance, contends:
The right-of-way statute is exclusive and renders all of his acts free from blame. He stresses the recognized rule often applied that where a party approaching an intersection sees another motorist has entered the intersection first, the latter has the right to assume the former will obey the law and yield the right of way. The rule is a wholesome one, as a general traffic regulation but, as previously indicated in this opinion, the person possessing the prior right may not arbitrarily rely on it without exercising reasonable care for the safety of himself and others. That is likewise true of the rule which grants the right of way to the driver on the right. The assumption rule, relied on by appellant, has been applied in various cases cited by the foregoing authors, under appropriate facts and circumstances, but we have found no case in which courts have permitted a party to invoke that rule in his own behalf where he himself has violated the rule, or rules, of the road, whether by failure to keep a timely lookout for other vehicles, unreasonable speed in view of the hazard involved, failure to warn of his approach to the dangerous crossing or some other negligent act which contributed to the injury sustained. The rule frequently applied by various courts was well stated quite early in Eddleman v. Askew, 50 Ga. App. 540, 179 S. E. 247, as follows:
“His right of way and right to assume the absence of negligence by others do not entitle him to drive blindly or recklessly across an intersection, especially one which might be termed a ‘blind intersection,’ without regard to the conditions and consequences.”
The authorities generally agree that although a person holding the prior right need not anticipate the other person will not obey the rule, or rules, of the road the one possessing the prior right nevertheless may not disregard his own duty to avoid a collision which in the exercise of reasonable care he could have prevented.
So, too, in our Orr case, supra, this court said:
“It is vigorously argued in plaintiff’s behalf that plaintiff had a right to rely on defendant’s duty to obey the rules of the road and yield to plaintiff the right to enter the intersection first. We are at a loss how to apply that to the case at bar. If plaintiff had looked with sufficient care to have observed defendant’s approaching car, he could, of course, measurably depend upon defendant’s obedience of the rules of the road. But he himself did not observe the rules of the road. He did not look with sufficient care to see defendant’s car speeding towards the crossing; and it is impossible to excuse his negligence on the fallacious presumption that the defendant whom he did not see would yield to him the right of precedence to cross the intersection.” (p. 311.)
Where a plaintiff’s own evidence shows him to be guilty of negligence which precludes his recovery, a defendant may take advantage thereof by demurrer. (Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343; Cruse v. Dole, supra.) A majority of this court has no hesitancy in concluding the admitted conduct of appellant at the known blind intersection clearly fell so far below the standard to which it should have conformed that reasonable minds could not properly be expected to reach different conclusions therefrom. His evidence admits he violated not only one but every reasonable precaution after leaving the ravine 400 to 500 feet east of the crossing. We think the least he could have done would have been to sound a warning of his approach when traveling at the rate of approximately sixty to sixty-seven feet per second. Rut he admits he failed to do even that.
Whether a negligent act, or acts, constitute the legal and efficient cause, or a contributing cause of injury, is ordinarily a jury question. Where, however, the evidence involved is entirely uncontradicted or the material facts on which a party relies are all admitted a question of law is presented for determination of the court. A few of the cases so holding are Lambel v. City of Florence, 115 Kan. 111, 222 Pac. 64; Whitcomb v. Atchison, T. & S. F. Rly. Co., 128 Kan. 749, 280 Pac. 900; Richards v. Chicago, R. I. & P. Rly. Co., 157 Kan. 378, 139 P. 2d 427; Cruzan v. Grace, 165 Kan. 638, 198 P. 2d 154; Cotter v. Freeto, 166 Kan. 23, 199 P. 2d 484; Garrison v. Hamil, 176 Kan. 548, 271 P. 2d 307. Here appellant’s admissions plainly disclosed the injury resulted from the concurrent negligence of both motorists.
We have not overlooked other cases cited by the parties and have examined numerous additional authorities. It frankly should be stated there is not complete harmony on all aspects of the question. Some of the lack of unanimity results from a variance in statutes and that is also true in the same jurisdictions resulting from subsequent legislation. Different statutory provisions relating to intersections at through highways also must constantly be borne in mind in order to avoid confusion of thought. (Revell v. Bennett, 162 Kan. 345, 349-350, 176 P. 2d 538.)
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