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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment sustaining a demurrer to the first amended petition, hereinafter referred to as the petition, which sought to recover demurrage charges for delay in unloading freight cars. The issue presented for determination is the specific nature of the action, which will determine the particular provision of the statute of limitations governing the time in which the action must be commenced.
The facts governing the question to be determined must be gleaned from the petition.
After identifying the plaintiff as a common carrier by railroad, engaged in the transportation of property for hire in interstate and intrastate commerce, and the defendant as a Delaware corporation authorized to do business in the state of Kansas, the petition alleges:
“In the transportation and handling of property in intrastate commerce between points within the State of Kansas, plaintiff, and the public, including the defendant herein, are governed by the laws of the State of Kansas and the rules and regulations of the State Corporation Commission of the State of Kansas, made pursuant thereto, to-wit: Chapter 66, Article 1, G. S. K. 1949, as construed by the Supreme Court of Kansas in State vs. AT & SF Ry. Co., 117 Kan. 86, 230 Pac. 333, and other decisions which laws, among other provisions, require all railroads to file with the State Corporation Commission copies of all schedules of rates and charges for the transportation of property, and demurrage and storage charges, . . .
“Pursuant to said laws and the rules and regulations of said Commission this plaintiff, during all of the times herein mentioned, had filed with said Commission schedules of demurrage charges hereinafter mentioned, which had been approved by said Commission and were and are binding upon the parties hereto, one of which such tariffs was designated Freight Tariff 4-D Naming Car Demurrage Rules and Charges, which governed the assessment of demurrage charges on shipments made in intrastate commerce in Kansas, including the demurrage charges sued for herein.”
Further allegations of the petition disclose that during the months of January and February, 1960, the plaintiff delivered to the defendant at Blum, Kansas, seventeen freight cars containing shipments of cement; that the shipments had been consigned to the defendant by the Universal Atlas Cement Company, Independence, Kansas, and had moved in intrastate commerce from point of orgin to destination; that the first of the cars in controversy was received by defendant January 5, 1960, and was released to plaintiff January 26, 1960; and that the next day the plaintiff delivered to defendant an instrument designated “demurrage dill.”
This demurrage bill, which was attached to and made a part of the petition, contained detailed information. It stated in large letters, “FOR DEMURRAGE CHARGES AT RATES AS PER PUBLISHED TARIFFS.” It gave the car initial, number, date of arrival, date notice given, date ordered, date actually placed, and date released. Under remarks it also contained the following statement:
“Car Detained 20 Days. 1 Day Allowed Account Rain. 2 Free Days. 4 Days Chargeable at 4.00 Per Day. 13 Days at 8.00 Per Day.”
Similar demurrage bills, also attached to and made a part of the petition, were delivered to defendant following the release of the other sixteen cars. The last car in controversy was delivered to defendant February 13, 1960, and released to plaintiff March 26, 1960. The fifteen cars, not specifically referred to herein, were held from eighteen to forty-four demurrage days.
When examined in its entirety the petition further reveals that the failure of defendant to unload and release the cars resulted in the accrual and assessment of demurrage charges, under the tariff filed with the Commission, in the amount of $3,744.00.
Plaintiff filed the action on February 8, 1962. Summons was served on February 16, 1962. Defendant’s demurrer to the original petition was sustained by the trial court on June 30, 1962, without stating the grounds for that ruling. Thereupon, and on July 18, 1962, plaintiff filed its amended petition. Subsequently defendant lodged a demurrer against such pleading. It reads:
“Comes now the defendant and generally demurs to plaintiff’s first amended petition and the exhibits thereto attached on the ground and for the reason that said petition and exhibits do not state facts sufficient to state a cause of action against defendant; and specifically on the ground and for the reason that said petition and exhibits or a part thereof show on their face that they are barred by the statute of limitations, G. S. 1949, 60-306 subsection Third and Fourth.”
The lower court entered its judgment sustaining the foregoing demurrer and again did not state the grounds on which the demurrer was sustained. Plaintiff then appealed from such ruling.
At the outset, it may be stated, it appears from the briefs of the parties and arguments of their respective counsel that only the question of the statute of hmitations is involved on appellate review.
Appellant contends that its action is to collect freight demurrage charges under its contract with appellee according to its tariffs on file with the State Corporation Commission, that such action is ex contractu in nature and is therefore governed by the three-year statute of limitations (G. S. 1949, 60-306, Second).
Appellee contends that an action to recover demurrage charges is for the recovery of a penalty or forfeiture and the one-year statute of limitations (60-306, Fourth) applies, but if not it is an action for taking or detaining personal property and the two-year statute of limitations (G. S. 1949, 60-306, Third) applies. It attempts to support this contention by suggesting that G. S. 1949, 66-211 and 66-212, providing for reciprocal demurrage, have been construed by this court as penal in nature. Appellant counters by pointing out that the reciprocal demurrage statutes have been superseded by G. S. 1949, 66-101, et seq., which gave the State Corporation Commission supervisory jurisdiction over the rates and charges of common carriers.
We agree with the contention of the appellant that an action to recover demurrage charges under the existing statutes is ex contractu in nature.
Appellee calls our attention to the reciprocal demurrage statutes (see G. S. 1949, 66-201 to 66-204, incl., also 66-211 and 66-212) and insists that this court has construed such statutes to be penal in nature. This is true so far as the amount of the recovery, under those sections of the statute, is concerned. See Milling Co. v. Railway Co., 82 Kan. 256, 108 Pac. 137.
A penalty is a statutory liability imposed on a wrongdoer in an amount which is not limited to the damages suffered by the party wronged. (70 C. J. S., Penalties, § la, p. 389.) Such was the nature of the penal provision of the reciprocal demurrage statutes fixing the amount of the recovery. However, the penal provisions of such statutes have been superseded by the public utility act.
The reciprocal demurrage statutes were enacted in 1905. At that time railroads were regulated by piecemeal legislation which was enforced by fines, penalties, and mandatory writs. In 1911 the legislature passed a comprehensive act (Laws 1911, Chapter 238) covering the regulation of public utilities and common carriers. The supervision and control of public utilities and common carriers was placed in a commission with full power, authority, and jurisdiction (G. S. 1949, 66-101). The existing laws relating to regulations of railroads were transferred to the Commission (G. S. 1949, 66-103). The act contains the further provision:
“The rights and remedies given by this act shall be construed as cumulative of all other laws in force in this state relating to common carriers and public utilities, and shall not repeal any other remedies or rights now existing in this state for the enforcement of the duties and obligations of public utilities and common carriers or the rights of the corporation commission to regulate and control the same except where inconsistent with the provisions of this act.” (G. S. 1949, 66-140.)
The fact that the penalty provisions, in the form of exemplary damages, contained in the laws of 1905 covering reciprocal demurrage, are inconsistent with the provisions of the public utilities act of 1911 is readily demonstrated.
The public utility act requires every common carrier to establish joint and reasonable rates and charges '(G. S. 1949, 66-107) and publish and file with the Commission copies of all schedules of rates and charges (G. S. 1949, 66-108). It prohibits any variations in the rates and charges from the schedule of rates and charges so filed and published (G. S. 1949, 66-109) and authorizes the Commission to investigate and establish just and reasonable rates and charges (G. S. 1949, 66-110).
The provisions of the 1905 act, specifically applicable to railroads but similar to those heretofore noted as applicable to common carriers, were carried over in the 1911 act (G. S. 1949, 66-146, et seq.) and demurrage and storage charges were specifically included (G. S. 1949, 66-149). The rates and charges, including demurrage, of common carriers were no longer enforced by fines, penalties, and writs of mandamus but were enforced by rules, regulations and orders of the Commission. A common carrier could not exact any rates or charges other than those included in its filed schedule without an order of approval of the Commission (G. S. 1949, 66-109 and 66-117).
The rules and orders of the Commission, promulgated under statutory authority, are administrative details of the statutes and have the same force and effect (Stratton v. Atchison, T. & S. F. Rly. Co., 118 Kan. 673, 679, 236 Pac. 831).
It necessarily results that when demurrage charges are filed with the Commission and approved by it the demurrage schedule, as filed, has the force and effect of law and the carrier cannot deviate therefrom. Any attempt on the part of the carrier to collect more or less demurrage charges listed in the schedule filed would be discriminatory and in violation of G. S. 1949, 66-154 and 66-154a.
In Keeler Co. v. Atchison, T. & S. F. Rly. Co., 187 Kan. 125, 354 P. 2d 368, this court, in discussing the effect of the Commission’s order changing a rate schedule, said:
“. . . This order of the Commission modified and changed the rates and tariffs of the railroad and thereafter controlled any transactions between the shipper and the railroad. . . .” (p. 128.)
The foregoing statements and conclusions find support in well recognized legal treatises. See 13 C. J. S,, Carriers, § 335, where it is said:
“. . . It becomes not only the right, but the absolute duty, of the carrier to collect or enforce the demurrage so fixed or provided for; and such right and duty cannot be avoided or affected by matters which might otherwise give rise to a waiver or estoppel.
“Ordinarily the demurrage charges may and must be reasonable in amount. However, under the Interstate Commerce Act and similar state statutes, the rate fixed in the filed and published tariff is conclusively presumed to be a reasonable one until proper action has been taken thereon by the commission.” (p. 796.)
See, also, 13 C. J. S., Carriers, §334, which reads:
“For most purposes demurrage charges are regarded as something apart and separate and distinct from the transportation charges as they do not arise, if at all, until the transportation is ended. Rather, they have been said to be more closely analogous to a ‘storage’ charge. As will be noted in the following section, however, it has often been held that for tire purposes of the provisions of the Interstate Commerce Act, and similar state statutes, which regulate transportation rates and charges without express mention of demurrage charges, the latter are to be regarded as part and parcel of the transportation charges and subject to the same rules and regulations.” (pp. 793, 794.)
For additional general statements of similar import see 9 Am. Jur., Carriers § 598, where the following statements appear:
“. . . Although a few of the early cases, following the rule of the English courts as to admiralty demurrage, have denied the right to exact demurrage charges in the absence of contract, the weight of authority now clearly sustains the right of a railroad company to malee a reasonable charge for the detention of its cars by shippers beyond a reasonable time in loading or unloading, or by reason of the failure to give shipping instructions, even in the absence of a stipulation therefor in the contract. This is on the theory that shippers and consignees impliedly contract to submit to all reasonable rules adopted by a railroad company for the regulation of shipments, and that rules or regulations providing for demurrage are not only manifestly promotive of justice to the carrier, but are also of the highest public importance, as only by their adoption and strict enforcement can promptness, uniformity, and safety in the railroad traffic business of the country be secured. . . .” (p. 782.)
The nature and purpose of a demurrage charge is well stated in Turner Lumber Co. v. C., M. & St. P. Ry., 271 U. S. 259, 70 L. Ed. 934, 46 S. Ct. 530, where it is said:
“The efficient use of freight cars is an essential of an adequate transportation system. To secure it, broad powers are conferred upon the Commission, [citing cases]. One cause of undue detention is lack of promptness in loading at the point of origin or in unloading at the point of destination. Another cause is diversion of the car from its primary use as an instrument of transportation by employing it as a place of storage, either at destination or at reconsignment points, for a longer period while seeking a market for the goods stored therein. To permit a shipper so to use freight cars is obviously beyond the ordinary duties of a carrier. The right to assess charges for undue detention existed at common law. Now, they are subject, like other freight charges, to regulation by the Commission. Demurrage charges are thus published as a part of the tariffs filed pursuant to the statutes.
“All demurrage charges have a double purpose. One is to secure compensation for the use of the car and of the track which it occupies. The other is to promote car efficiency by providing a deterrent against undue detention. . . .” (p. 262.)
The generally accepted rale is that an action to recover demur-rage charges by virtue of a filed schedule is ex contractu in nature.
See 13 C. J. S., Carriers, § 347, for the following statement:
“An action for the recovery of demurrage charges is ordinarily ex contractu in nature, and may be in the form of an action of assumpsit on the common counts." (p. 813.)
For well considered decisions, to which we adhere, where the above stated rale is recognized and applied see Louisville & N. R. Co. v. Camody, 203 Ala. 522, 84 So. 824, which reads:
“The term ‘demurrage/ as applied to cases arising out of contracts of affreightment by rail, means the damages for the detention of cars to which a shipper or consignee of goods may become liable under an express or implied contract. The theory is that, in the absence of an express contract, the shipper or his consignee impliedly contract to submit to reasonable rules adopted by the carrier for the regulation of shipments; . . .” (p. 523.)
And see Atchison, T. & S. F. Ry. Co. v. Johnson, 99 Okla. 72, 225 Pac. 939, where, after quoting in the opinion from 4 R. C. L. 317, now 9 Am. Jur., Carriers, § 598, it is said:
“Under the tariffs, filed with and approved by the Corporation Commission, demurrage was chargeable on this shipment after 48 hours’ free time exclusive of Sundays and legal holidays, computed from the first seven a. m. after notice to consignee of arrival of the shipment at its destination; and, under the rule above announced, the consignee, Bowers-Venus Grain Company, impliedly contracted to submit to this rule.” (p. 73.)
In view of what has been heretofore stated and held we have little difficulty in concluding the involved action is ex contractu in nature and that the three-year statute of limitations (G. S. 1949, 60-306, Second) applies. It follows the demurrer to appellant’s petition should have been overruled.
The judgment is reversed.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Jackson, J.:
The appellant here was hired by his employer, the appellee, as a driver of a transport truck or tractor-trailer rig. On July 20, 1960, in St. Louis, Missouri, while climbing up to check his load, appellant fell on his head, resulting in a fractured skull and a shoulder injury. He was brought to Kansas City by air and treated by respondent’s physician. He returned to work for respondent in October, 1960.
A workmen’s compensation hearing was held and an award of 12 weeks total, and a 15% permanent partial disability of the body was made on July 17, 1962.
On August 3,1962, respondent appealed to the Wyandotte district court. As a result, the findings of the workmen’s compensation Examiner were adopted as to total temporary but the partial permanent disability of the body as a whole was reduced to 5%. Claimant now appeals to this court.
The statement of the district judge points out that there was considerable conflict in the medical testimony in the case. In giving his order, the court said:
“After careful consideration, I have made the following findings and conclusions in this case:
“I find that the Claimant was injured on July 20, 1960, at St. Louis, Missouri, when he slipped and fell from an automobile trailer a distance of some nine feet. The accident arose out of and in the course of the Claimant’s employment. The Claimant suffered a skull fracture and a dislocation of the shoulder, which was described by the physicians as being a coracoclavicular separation.
“The Claimant testified that he has worked continuously since October, 1960, but complains of back and shoulder pain and frequent headaches. The medical testimony in the case was conflicting. Doctor Francisco rated the disability as 5% permanent partial and Doctors Edgar W. Johnson, Jr. and Earl C. Sifers both examined the Claimant on one occasion each and found no disability.
“Dr. Frank L. Feierabend rated the disability at 25% of the body as a whole and then testified that in making this rating he did not take into consideration brain damage. He testified that it was a simple cerebral concussion with no evidence of gross brain damage.
“Dr. John Magalif, a neuro-psychiatrist, testified that the Claimant was suffering a 25% disability of the body as a whole as a result of brain damage. On cross-examination he testified that he found no evidence of organic brain damage, but was of the opinion the Claimant was suffering from functional disorders, which in his opinion was based on mental symptoms exhibited by the Claimant.
The Court is of the opinion that the preponderance of the evidence establishes only a 5% permanent partial disability and that the Claimant is entitled to the statutory allowance for such partial disability.
“The Court will adopt the findings of the Examiner as to the total temporary award made by the Examiner and will order that any compensation which might now be due and unpaid on the temporary total disability for twelve weeks be paid in a lump sum and that any compensation which might have accrued at the rate of 5% since that time up to this time be paid in a lump sum and that the future compensation for the statutory rate and amount be paid weekly.
“Counsel will please prepare and submit an appropriate journal entry of judgment.”
Claimant urges upon us the wide difference in the estimates of disability given by the doctors — two of whom rated the disability at 25% of the body as a whole. It is not within the jurisdiction of the appellate court to pass upon questions of fact on appeal in a workmens compensation case. The statute states for one appealing to this court that our jurisdiction in an ordinary workmen’s compensation hearing is limited to questions of law. (G. S. 1961, 44-556.) See Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846; McDonald v. Rader, 177 Kan. 249, 277 P. 2d 652; Kafka v. Edwards, 182 Kan. 568, 570, 571, 322 P. 2d 785; LaRue v. Sierra Petroleum Co., 183 Kan. 153, 156, 325 P. 2d 59; Cross v. Wichita Compressed Steel Co., 187 Kan. 344, 346, 356 P. 2d 804; Love v. Kirwin, 187 Kan. 760, 359 P. 2d 881; Price v. McSpaden, 188 Kan. 578, 581, 363 P. 2d 533; Lutz v. Gehring Contractor-Builder, Inc., 188 Kan. 690, 692, 366 P. 2d 281; Thompson v. Heckendorn Manufacturing Co., 189 Kan. 77, 367 P. 2d 72.
Whether disabling injuries are permanent in quality and partial in character, and if so, to what extent and duration the physical efficiency of the workman has been impaired, is a question of fact to be determined by the workmen’s compensation director and the district court on appeal. Our review of the record convinces us there was substantial evidence to support the district court’s finding that the claimant sustained a 5% permanent partial disability. The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
In this case the defendant has appealed from his conviction of the offense of forcible rape — the victim being his thirteen-year-old daughter.
Defendant was charged in the district court of Montgomery county in two counts. Count one charged the offense of forcible rape (G. S. 1949, 21-424). Count two charged the offense of incest (G. S. 1949, 21-906).
Defendant being without counsel, the trial court, pursuant to the provisions of G. S. 1961 Supp. 62-1304, appointed a local practicing attorney to represent him.
Subsequently, upon motion of the state, count two of the information was dismissed. Defendant entered a plea of not guilty to count one — charging forcible rape — and a trial was had. The jury returned a verdict of guilty.
Defendant filed a motion for a new trial as follows:
“Now comes the defendant and moves the Court for an order setting aside the verdict of the jury herein and granting a new trial for the reason that:
“1. The Corut admitted illegal evidence, consisting of State’s Exhibits 2 and 3, over the objections of the defendant, prejudicial to rights of defendant.
“2. The verdict of the jury is contrary to the evidence.”
This motion was overruled, the verdict was approved, and defendant was sentenced to confinement in the state penitentiary as provided by law.
His court-appointed counsel represented him throughout the trial and at the hearing on the motion for a new trial.
Subsequently defendant, prose, filed a notice of appeal to this court—
“. . . from the judgment and Motion for Retrial sentence imposed in said cause . . .”
We construe this notice to mean that defendant appealed from the order overruling his motion for a new trial and from the judgment of conviction and the sentence imposed.
Defendant being indigent, and being without counsel to conduct his appeal, the trial court, pursuant to Rule No. 56 of this court, appointed new and different counsel to represent him on appeal, and counsel so appointed has filed an abstract and brief in this court and appeared on oral argument of the appeal.
The abstract sets forth eleven specifications of error, among them being that the trial court erred—
“In appointing as defense counsel a member of the bar with little, if any, experience, in the trial of criminal cases,” and “In overruling defendant’s motion for a new trial.”
In connection with the first ground it is contended that trial counsel’s failure to object to certain of the state’s evidence and to alleged leading and suggestive questions put to witnesses for the state — and particularly to the prosecutrix — resulted in prejudice to defendant’s rights, and that the practical end result of the entire matter is that defendant was denied the effective assistance of competent counsel which the law requires.
In our opinion the criticism of trial counsel is unwarranted and unjustified. Within the last few years it has become quite common for convicted felons to contend that they were inadquately represented by counsel at their trial. The law does not guarantee the assistance of the most brilliant and experienced counsel, but it does require the honest, loyal and genuine representation by counsel. Hindsight always is better than foresight, and probably no two attorneys would conduct a defense in precisely the same manner. It is quite true that a number of leading questions were put to the prosecutrix, but, in view of the circumstances of the case and of the offense charged, the reticence of a thirteen-year-old girl to testify against her father is quite understandable. (State v. Wagoner, 128 Kan. 299, 302, 278 Pac. 1.) We are advised that trial counsel was admitted to the practice of law in this state in 1955; that he served for several years as judge of the city court of Independence, and that he has been and is engaged in the general practice of law in Montgomery county. The record discloses that throughout the trial, and at the hearing on the motion for a new trial, he faithfully and competently represented defendant, and any contention to the contrary is without merit. As bearing on the question involved, see Miller v. Hudspeth, 164 Kan. 688, 707, 708, 192 P. 2d 147; Trugillo v. Edmondson, 176 Kan. 195, 200, 201, 270 P. 2d 219; State v. Woods, 179 Kan. 601, 603, 296 P. 2d 1114; Converse v. Hand, 185 Kan. 112, 115, 340 P. 2d 874, and Hicks v. Hand, 189 Kan. 415, 417, 369 P. 2d 250.
It is noted that the motion for a new trial, above, was on two grounds — the erroneous admission of exhibits 2 and 3 into evidence, and that the verdict was contrary to the evidence. The record also discloses that the argument at the hearing on the motion was confined to those two grounds. Such being the case, specifications of error outside the scope of the two mentioned grounds are not subject to review. (State v. Teter, 180 Kan. 219, 220, 221, syl. 1, 303 P. 2d 164, and State v. Trams, 189 Kan. 393, 395, syl. 2, 369 P. 2d 223.) We therefore confine the discussion to the two points involved.
Roth exhibits 2 and 3 were introduced and admitted into evidence over the objections of defendant. Exhibit 2 was a letter written by defendant to his aunt while he was in jail awaiting trial. In it defendant did not admit his guilt, and the most that can be said for it is that it was more or less of a rambling discourse in which defendant directed his aunt to advise his daughter — the prosecutrix —that the “answer” to all questions was to be an emphatic “no.” Exhibit 3 was a short letter written by defendant, while in jail awaiting trial, to his daughter — the prosecutrix — and which was handed by defendant to the matron of the county jail. Nowhere in this letter did defendant admit his guilt, and, in fact, he denied it.
In no sense of the word may it be said that the admission of these exhibits resulted in prejudice to defendant, and the contention as to their admission is without merit.
The contention that the verdict of guilty is contrary to the evidence likewise lacks merit. We have read the record, but no purpose would be served by detailing in this opinion the sordid and revolting facts. Defendant neither testified nor introduced any evidence, and if the jury chose to believe the testimony of the prosecutrix and other witnesses — which it had the right to do— it returned the only verdict that it could return. In all respects the verdict was fully supported by the evidence, and it was approved by the trial court. We find nothing in the record which approaches prejudicial error. The motion for a new trial was properly overruled, and the judgment is affirmed.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from an order of the district court sustaining defendant’s demurrer to plaintiff’s petition. The point involved is whether a board of county commissioners may sue a purchaser of real estate who agreed in writing with the vendor to pay the taxes as they became due, and recover a personal judgment against him for the amount of the delinquent taxes.
We answer the question in the negative. The method of collec tion of taxes is not prescribed in our constitution but is left to the legislative discretion and control and no method exists apart from the statute. Generally speaking, taxes are not debts in the ordinary sense of that term, and since the statute makes special provision for their collection, an action at law prescribed by the code of civil procedure will not lie for their recovery. Our decisions have so held from the beginning. In Phillips Petroleum Co. v. Moore, 179 Kan. 482, 297 P. 2d 183, it was held:
“G. S. 1941 Supp., 79-2801, et seq., since amended, is a complete and independent code for the collection of taxes levied and assessed upon real estate, having a separate and distinct judicial proceeding in which its own procedures and limitations are prescribed, and a tax foreclosure action instituted thereunder is a proceeding in rem.” (Syl. ¶ 3.)
In Sherman County Comm'rs v. Alden, 158 Kan. 487, 148 P. 2d 509, we said:
“. . . the methods prescribed for the recovery of delinquent taxes are wholly statutory, no methods exist apart from the statute, and whatever procedures, whatever remedies are available are to be found in the tax statutes. (Ness County v. Light & Ice Co., 110 Kan. 501, 204 Pac. 536; Sarver v. Sarver Oil Co., 141 Kan. 246, 248, 40 P. 2d 394; Cunningham v. Blythe, 155 Kan. 689, 695, 127 P. 2d 489; Mitchell County Comm’rs v. Allen, 156 Kan. 701, 706, 137 P. 2d 143.)
. there are various important distinctions between judicial sales under the civil code and delinquent tax sales. For instance, sales under the civil code involve a debtor and creditor relationship of some sort — mortgage foreclosure, execution sales, etc. Taxes, on the other hand, are not classed as debts in the usual sense of the term, and actions prescribed by the civil code do not lie for their recovery. (Comm'rs of Stafford Co. v. First Natl. Bank, 48 Kan. 561, 30 Pac. 22; Davidson v. Cattle Co., 76 Kan. 462, 92 Pac. 705; Rogers v. Johnson, 138 Kan. 39, 41, 23 P. 2d 586; Sarver v. Sarver Oil Co., supra, p. 248.) Again, in a tax foreclosure sale the county cannot take a deficiency judgment. The proceeding is against the property, it is an action in rem. (Ness County v. Light & Ice Co., supra; Atchison County v. Challis, 65 Kan. 179, 181, 69 Pac. 173; Montgomery County v. Wilmot, 114 Kan. 819, 824, 221 Pac. 276.)
“. . . These and the other provisions can hardly be said to be harsh. In any event they provide the remedies which the legislature has established. Such remedies being specific and complete, there is no occasion or authority for resorting to a court of equity. (61 C. J. 1043; Corbin v. Young, 24 Kan. 198, 201; Trust Co. v. Essex, 74 Kan. 240, 242, 86 Pac. 467; Crawford County Comm'rs v. Kurent, 138 Kan. 556, 27 P. 2d 226.) . . .” (l. c. 492, 493.)
See, also, Jesberg v. Klinger, 184 Kan. 519, 337 P. 2d 660; Board of County Commissioners v. Abbott, 185 Kan. 687, 347 P. 2d 410; Shriver v. Board of County Commissioners, 189 Kan. 548, 370 P. 2d 124, and Robertson v. Lemmon, 189 Kan. 619, 371 P. 2d 175.
Since the legislature has prescribed the only remedy and procedure which can be followed in collecting delinquent taxes it is evident that plaintiff’s petition to recover a personal judgment for delinquent taxes is not authorized, and the district court did not err in sustaining the demurrer. The judgment is affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is one of costs. The question was raised in the court below on a motion to retax costs. The motion was submitted to the court below upon the following agreed statement of facts, to-wit: ...
“ In the matter of the motion of plaintiff Penelope "White, to retax the costs in this cause, it is agreed that the following are the facts which shall be considered by the court in passing upon said motion. On the 13th of May 1872, plaintiff brought her action before a justice of the peace of Neosho county to recover the sum of $13.50 of said defendant. She filed her bill of particulars, and the defendant filed his bill of particulars. Plaintiff obtained judgment for the full amount of her claim, and defendant appealed to the district court, and all the original papers in said cause, and the transcript of the justice, were filed in the clerk’s office on the 18th of June 1872. No new pleadings were filed in the district court until the 11th of December 1872, when plaintiff filed a motion to. dismiss the appeal, which motion was overruled by the court. On the 20th of December 1872, the plaintiff, without the consent of the defendant, or leave of the court, filed by her counse.l a general demurrer to the second defense in the defendant’s bill of particulars, assigning as the grounds of said demurrer that the facts stated in the second defense constituted no defense to plaintiff’s action. Defendant Clark knew of said demurrer being filed, and subpoenaed no witnesses in his behalf in said cause from the time said demurrer was filed until it was finally disposed of, when he duly subpoenaed his witnesses who afterward testified in his behalf on the trial. After the filing of said demurrer, and before the same was disposed of, the plaintiff caused various witnesses to be subpoenaed in her hehalf. On the 12th of April 1873, during the regular April Term of said district court, the plaintiff asked and obtained leave of the court to withdraw said demurrer. The case was afterward tried, and plaintiff obtained judgment for the whole amount of her claim in the action. The clerk in taxing up the costs in the cause refused to tax up the costs of the witnesses subpoenaed by plaintiff during the pendency of the above-mentioned demurrer, and plaintiff now moves the court that the clerk be required to tax up in favor of plaintiff and include in the judgment against defendant the costs of the ■abovernamed witnesses, the gross amount of said costs being $113.80.”
Upon the foregoing agreed statement of facts the court below made the following decision and order, to-wit:
“And thereupon, at the April Term 1874 of said Neosho county district court, the said motion of plaintiff named in the foregoing agreed statement of facts came on for hearing before said court, and was submitted, heard and determined on the said agreed statement, which Was all the evidence that was introduced on the hearing of said motion; and in consideration of the same, the court sustained the motion of plaintiff, and ordered and adjudged that the clerk of the Neosho county district court retax the costs in said cause by assessing against defendant and in favor of plaintiff the costs of the witnesses mentioned and referred to in said agreed statement, the same to be included in plaintiff’s judgment against defendant. To which order, ruling, judgment, and determination of the court the defendant at the time duly excepted.”
The code of civil procedure provides, (§262,) that “An issue of law arises upon a demurrer to the petition, answer, or reply, or to some part thereof.” (Gen. Stat. 679.) And in §313, as amended, “No witnesses shall be subpoenaed in any case while the cause stands upon issue of law.” (Laws of 1871, p. 277, § 3.) And we suppose upon general principles, that a party would not be allowed to recover for costs which were clearly and manifestly unnecessarily made. (Wolfley v. Rising, 12 Kas. 535, 538, 539.) We suppose it is claimed that “the cause” in this case stood “upon an-issue of law” while said demurrer was pending against the second defense stated in the defendant’s bill of particulars. But whether it is claimed that the witnesses of the plaintiff were subpoenaed to disprove said second defense, or to prove the plaintiff’s bill of particulars, (which was put in issue by the first defense stated in defendant’s bill of particulars, if a bill of particulars in a justice’s court needs anything to put it in issue,) we hardly know. And whether the testimony of said witnesses was used or was competent for either of said purposes, we can hardly fell. We think however that under all the facts of this case, as shown by the record, it is fair to infer that the only question for us now to determine is whether said demurrer was wholly a nullity or not. A portion of the record not heretofore given reads as follows:
“The clerk of said court taxed the costs in said cause, but refused to tax any costs for witnesses subpoenaed between the 20th of December 1872 and the 12th of April 1873, because of the filing of said demurrer; and thereupon said plaintiff duly filed in said court her written motion, asking said court to order said clerk to retax said costs, for that the ground or reason assigned by the clerk for refusing to tax up said costs was not a sufficient or legal reason.”
The plaintiff in error, defendant below, inserts among other things the following statement and argument in his brief, to-wit:
“The court below based its decision solely on the theory that, the cause having been commenced in a justice’s court, (wherein as was claimed, a demurrer was not known,) and coming to the district court on appeal, was.to be tried there in the absence of new or amended pleadings filed by leave of court, upon the original papers on which the cause was tried before the justice; that said original papers were the bills of particulars of the respective parties; and the demurrer of White, having been filed without leave of the court, was therefore to be treated as a nullity. And by taking this view of the matter, the court was enabled to hold that the filing of the demurrer raised no issue of law, and that the defendant in error properly subpoenaed witnesses during its pendency, and was entitled to have the costs of suit, witnesses included, inserted in the judgment against plaintiff in error. Conceding that the plaintiff below filed her demurrer without the leave of the court, does it follow that she can take advantage of that fact herself? Can a party put a pleading on file, suffer it to remain there for months, treat it as a valid plea by asking and taking leave of the court to withdraw it, by his action induce the adverse party to regard the case as at issue upon an issue of law, and consequently refrain from subpoenaing his witnesses, and after all this, when it is sought to charge such party with the lawful consequences of his act, does it then lie in his mouth to inform the court that -his proceedings in the premises were a mere farce, that he has been trifling with the court, and deceiving the opposite party on purpose? Such certainly cannot be the law. We submit that the only one who could have taken advantage of the improper filing of this demurrer, was the plaintiff in error himself, and so long as he did not complain, it was to be, and should be, treated and regarded the same as if it had been filed in strict accordance with law, and the defendant in error is estopped from asserting the contrary.”
We are inclined to think that the court below decided correctly. The demurrer was undoubtedly a nullity at the time it was filed, because it was filed out of time, without leave of the court, and without the consent of the defendant. Or at least, the court and the defendant had a right to treat it as a nullity. (Hopkins v. Cothran, just decided by this court, ante, p. 173.) And so far as we can see from the record, the court and the defendant continued to possess that right until the case was brought to this court. Neither ever did anything so far as the record shows to waive or abridge that right; and 'the plaintiff had no power by her own act to take it from them. Neither is there anything in the record that shows that the plaintiff ever gained anything, or that the defendant ever lost anything, by reason of the filing of said demurrer. And there is nothing in the record that tends to show that any party or person ever acted in any different manner because of the filing of said demurrer than he would have acted if it had not been filed, except the following clause from the agreed statement of facts: “Said defendant Clark knew of said demurrer being filed, and subpoenaed no witnesses in his behalf in said cause from the time said demurrer was filed until it was finally disposed of, when he duly subpoenaed his witnesses who afterward testified on his behalf on the trial.” Now this hardly shows that the defendant did not subpoena his witnesses because said demurrer was filed. But even if it be considered that it does, still, it would not show that the defendant lost anything by reason of the filing of the demurrer, or that he at any time waived his right to treat the demurrer as a nullity. And if he failed to subpoena his witnesses because of the filing of said demurrer, then the demurrer operated as a positive benefit to him, for it lessened the amount of costs which he would have had to pay to such witnesses. The plaintiff herself seems to have considered the demurrer as of little value, for she continued to subpoena witnesses after it was filed, and afterward withdrew it. Under the circumstances of this case we think the demurrer was' a nullity at the time it was filed. There was. nothing afterward done to give it any life, and there was nothing done to estop the party filing it from afterward treating it as a nullity. ’ •
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
"Was a county treasurer, under the laws of 1868, entitled to receive from the county a commission of three per cent, on those redemptions commonly called “individual redemptions,” that is, those cases in which the owner redeems from a tax sale to an individual ? The treasurer was entitled to such fees and compensation as the law allowed, and no more. Sec. 7 of ch. 39, Gen. Stat. 479, prescribed his compensation. It reads, “The county treasurer shall be entitled to receive the following fees: For collecting taxes, * * * on moneys received other than taxes, three per cent. ; * * * for certificate of redemption, .25.” It is claimed under the clause quoted, that he is entitled to three per cent, on the moneys received from these individual redemptions. It is argued that when property is sold at a tax sale to an individual, the taxes are paid, the state receives its share, and the county, township, and school districts,, theirs. When therefore the owner redeems, this redemption is in no sense a payment of taxes — that it is simply the removal of an incumbrance, like a mortgage held by an individual. The money therefore is “money received other than taxes,” within the very letter of the statute. We cannot concur in these views. We understand the section as prescribing the commissions to be paid on moneys received by the public, and for its benefit, and not as authorizing the treasurer to charge the county three per cent, on all moneys passing through his hands whether the public be interested in them or not. It must be borne in mind, that the question presented is, whether the county is chargeable with this commission; and not simply, whether the treasurer is entitled to receive it. The statute nowhere says in terms, that the county shall pay any of these fees allowed the treasurer. It says certain commission shall be paid on taxes collected, and other commission on moneys other than taxes. Prima facie therefore, these commissions would be charged upon the amount received, and against the party for whom they were received. Before such fees could be charged against a party who has no interest in the money received, there must be plain warrant of the statute for such charge. Ordinarily it would seem strange if A. was compelled to pay an officer for services in which B. alone was interested. And the fact that the officer is entitled to the fees, would not of itself establish A/s liability therefor. In the case at bar, the county has no interest in the money received. It belongs exclusively, to the holder of the certificates. The county received the full taxes when the sale was made, and the treasurer received from the county his commission on such taxes. Thenceforward the county had no interest in the property. It was a matter purely between the land-owner, and the holder of the certificate. The sale might ripen into a deed, or the owner might redeem. Either way, it was a question between individuals, and not one whose determination enriched the treasury of the county in the slightest degree. We think therefore that the county was not chargeable for such fees, and the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.;
Elliott filed his petition, in the usual form, for settlement of mutual accounts with the firm of Williams & Finnigan. An answer, containing only a general denial, was filed. Upon the hearing of the case, as to whether an accounting should be had, evidence was introduced, and the court ordered a reference in pursuance of § 292 of civil code, (Gen. Stat., 685,) against the objections of Williams & Finnigan. The legality of this order, under the circumstances, is the chief question in the case which is presented to this court. Williams & Finnigan were merchants, and their account against Elliott was made up of over one hundred and fifty items for goods sold and moneys paid on his account. W. & E. received from Elliott in drafts, a" note, and an item of goods returned, $3,650.90. Their alleged claim was 43,689.35. The counsel for the plaintiffs in error claim that, as W. & F. received from Elliott the said sum of $3,650.90 principálly in drafts, ranging in sums from $15 to $500, there were no mutual accounts existing between the parties for examination. We think differently. Neither the drafts, nor the proceeds thereof, were ever treated or intended as payment of the accounts of W. & F. They were deposited with W. & F. at various dates, without regard to the accounts of the said firm. They were entered upon the books of W. & F., and drawn against by Elliott when he wished. Some of the drafts were deposited before any account accrued against Elliott. If W. & F. had brought their action for the entire amount of their account against Elliott, the latter might, under a proper answer, have set-off those several drafts, not as a payment, in the technical sense of the word, but as a claim and demafid arising upon contract. The dealings exhibited between the parties run from July 10th 1871, to August 15th 1872. Under our view, there were “mutual accounts” existing between the plaintiff and defendants. The demands were reciprocal, and there seems to have been an understanding between the parties that the mutual debts should be set-off or satisfied pro tanto.
Counsel for plaintiffs in error further object to the reference, because it appeared in evidence that plaintiff and defend ants did settle all their transactions except the amount of difference between $1,494.35 contained in one settlement of W. & F.’s account, and $1,590.90 set forth in another statement rendered, and that there was never any disagreement about the amount of money or drafts received by W. & F. from Elliott. The plaintiffs in error are in no condition to take advantage of this objection. At the common law, there were two distinct courses of proceeding in actions of account on the part of a defendant. In the first place, the party might interpose any matter in abatement, or bar, of the proceeding, and if he failed in it, then there was an interlocutory judgment that he should account (quod computit) before auditors.' When the account was finished, the judgment was, “ that the defendant do pay the plaintiff so much as he is found in arrear.” 3 Blackst. Com. 164. Courts of equity, in those states where there is a court of chancery, have for a long time exercised a general jurisdiction in all cases of mutual accounts, because the object is much more readily obtained by a bill in equity. The defendant, under equity practice, may plead that he has fully accounted; or he may plead a release, arbitrament, bond given in satisfaction, or that the-money was delivered to.him for a specific purpose, which has been accomplished, etc. But other matters, which admit that the defendant was once liable, cannot in general be* pleaded in bar to the action. In such an action there is no-general issue. In this case, only a general denial was filed-to the petition, which set forth in indefinite terms, mutual dealings between the parties; and under the pleadings each item of account was a proper subject of proof. No plea of a stated or settled account was made by answer. The defendants in the court below did not take advantage of the various ■ defenses the facts warranted. There is nothing in the pleadings to show that either party relied upon any former settlement; and when the evidence before the court established the-mutual accounts between the parties, upon the pleadings existing in this case the court rightfully referred the cause- for an accounting to be had. The evidence conclusively shows- that W. & F. were once liable, and might be made accountable; and no defense thereto was pleaded sufficient to prevent a reference.
Further complaint is made, that the referee, having found as a conclusion of fact, “That there had been a mutual settlement between the parties of all transactions except the excess of money paid by Williams & Finnigan to one Kepler, under the orders of Elliott, which excess so paid ’ c amounted to $96.65,” thereon reported as a concjusjon 0f iaWj «¿hat jt js not within the province of this court to examine into the accounts and dealings of the parties plaintiff and defendants herein, prior to any mutual settlement, which may have been made by them.” This conclusion of law is erroneous in a case where the cause has been referred to a referee for an accounting, and no settlement or previous accounting is pleaded. The very object of appointing a referee is to procure an account, showing a balance in favor of one of the parties. He is, therefore, required to make out an account, showing the state of indebtedness on either side. In the case at bar, the referee rightfully received evidence as to any former settlement of the parties, in order to ascertain the correctness of the items charged, just as'he could have received the admissions of either party as to the account of the other to establish items disputed. While the conclusion of law is erroneous, and the referee gives an incorrect reason for his finding of the moneys due to Elliott on the taking of the account, the plaintiffs in error are not prejudiced thereby, as in fact the referee did properly make out an account showing the indebtedness on both sides; and the record shows that W. & F. admitted the items charged against them by Elliott to be correct, and Elliott admitted the charges of W. & F. correct, except as to certain item’s furnished to Kepler. For the excess, Elliott obtained judgment. The account was fully taken and reported to the court. No evidence was rejected, and no item charged by W. &. F. was. disallowed except the goods and money obtained by Kepler on Elliott’s account, in excess of the sum authorized by Elliott to be charged to him.
We find no error in the order of reference, and none prejudicial to the plaintiffs in error in the referee’s report.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note. It seems that in 1871 the Davenport Brothers commenced business in Peabody, Kansas. Whether they ever did business anywhere else, is not shown. In May 1873, W. H. Prescott was employed by them as a bookkeeper, and he continued in their employ until February 28th 1873. On August 27th 1872, F. C. Davenport, a member of the firm of “Davenport Brothers,” executed and indorsed the following promissory note, to-wit:
“$500.00. Chicago, August 27, 1872.
“On or before ninety days afterdate, we promise to pay to the order of Mr. F. C. Davenport, five hundred dollars, value received, with interest at ten per cent.
“Davenport Brothers.”
Which note was indorsed on the back, “F. C. Davenport.”
Said W. H. Prescott was a witness on the trial of the case, and stated among other things that he was “acquainted with the signature of Davenport Brothers, and with that of F. C. Davenport;” and that “the signature of the maker is that of Davenport Brothers, written by F. C. Davenport, and that of the indorser that of F. C. Davenport,” and that “F. C. Davenport was a member of the firm of Davenport Brothers at the time of the making and indorsing of the same.” But it also appears from Prescott’s evidence, that he knows nothing about the execution of the note, or the consideration therefor, and the books kept by him at Peabody do not show anything concerning the note, or the consideration therefor. Prescott does not know of any indebtedness from the Davenport Brothers to the plaintiff, or of any dealings having taken place between them prior to the execution of said note, and said books do not show any such indebtedness, or such dealings; and he does not know of the firm .being indebted to any person in Chicago; and he thinks he ought to know all about these matters, if in fact they took 'place. How long the Davenport Brothers continued to do business in Peabody, or when they made their assignment to defendant Ruggles, is not shown. Now, does all this want of knowledge on the part of* Prescott prove that said note was not executed by the Davenport Brothers, or was not authorized by them, or was not executed in and about their business ? It must prove all of these things in order to release the defendant. Presumptively, as it was executed in the name of the firm, by one of the firm, and the firm signature attached thereto, it’ is the note of the firm; and Prescott’s want of knowledge we think is hardly sufficient to overcome that presumption. The note may have been given for an old debt, or to raise money to pay an old debt, or for a new debt contracted in purchasing goods for the firm to take to Peabody, or somewhere else, or to raise money to pay such new debt; and as this was all done at Chicago, and Prescott was at Peabody, he may have been entirely ignorant of the whole transaction. He could know but little concerning the transactions of the firm at other places than Peabody, except as the members of the firm told him. And as they possibly in advance contemplated making the assignment which they afterward did make, they may have chosen not to tell Prescott anything about their business, or to let their books show the same. There was no evidence tending to show when, or where, or from whom, or by whom, the Davenport Brothers purchased their goods. And from anything appearing in the record, this note may have been given on a bona fide purchase of goods by and for the firm, and we presume it was.
The judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by defendant in error before a justice of the peace of Cherokee county, to recover for twelve tons of hay, claimed to have been sold to plaintiff in error at the price of $3 per ton. Peck recovered judgment for $36, from which judgment an appeal was taken by the company to the district court. At the April term 1874 of said court, the case was tried before a jury. Peck recovered a verdict for $6, which, on motion of the stage company, was set aside. At the October term 1874, the case again was brought on for trial. Peck’s evidence introduced; objection to company’s evidence sustained; leave given to file amended answer; jury discharged, and cause continued. The company filed an amended answer, setting out the contract under which the hay was delivered, claiming a performance, and alleging a breach on the part of Peck, and asking judgment for damages sustained. At the January term 1875, the case was again tried; judgment for Peck for $38.65; motion for new trial overruled.
The errors mainly complained of are errors in giving and refusing instructions. The contract was in writing, and there was no dispute as to what the contract was. It was in substance a contract for the sale and delivery by Peck to the company of fifty tons of hay at $3 per ton, the first ten tons not to be paid for until the entire -fifty tons were delivered. The remainder of the hay was to be paid for as delivered. There was no dispute, and the testimony showed, on both sides, the following facts: That on the 27th of October 1873, Peck had delivered about fifteen tons, ten tons of course of which he was not to be paid for until he delivered all the hay; that at that date he was paid $9; that afterward, and up to the 13th of November, the plaintiff delivered between three and four tons, for which, before the commencement of this action, he received his pay. After that came the divergence in the testimony, the plaintiff introducing evidence tending to show that when the $9 was paid there was a dispute as to whether two tons were good and merchantable, as stipulated in the contract; that the plaintiff did not accept the $9 as payment in full for the hay which the defendant then owed for; that the last of November the plaintiff demanded pay for the two tons, which defendant refused on the ground that said two tons were not good, and plaintiff had accepted said $9 as payment in full; that the plaintiff then refused to deliver any more, and that the two tons were good and merchantable hay. On these controverted points the company introduced evidence tending to show that the two tons delivered prior to October 27th were not good hay, and that the plaintiff was told not to put it in the barn; that this amount was by the assent of plaintiff deducted, and $9 accepted in full for which pay was then due; that subsequent to the 13th of November the plaintiff was requested to go on and deliver more hay, who at first said he could not, but promised to have it delivered, and that a few days afterward he demanded $6 in payment of the two tons delivered as a condition for further performance, which being refused, he refused to deliver any more hay. The company also showed, which was not contradicted, that when Peck made his final refusal hay had advanced from $3 to $5 and $6 per ton.
The foregoing statement of the case is taken from the brief of plaintiff in error, and upon this statement counsel for plaintiff in error say:
“ On such a state of facts we claim that the instructions of the court were wrong, not merely in some particular parts, but in their entire scope and aim, although the instructions do not point out what would excuse Peck from performing his contract; yet in view of the general features of the case, the leading idea of the court probably was, that if the jury found that the company failed to pay for the two tons of hay, such failure excused Peck from performing his contract, and authorized him to treat Ihe contract as annulled or rescinded.”
"We think this is a fair statement of the case, and that if the failure of the company to pay for the two tons, they being good and merchantable hay, excused Peck from delivering any more hay, then no substantial wrong has been done plaintiff in error, and the judgment must be affirmed. It will be observed that, outside and independent of the contract, under the testimony, Peck’s right to recover would be unquestioned. He had delivered twelve tons of hay, and the company had accepted and appropriated them to its own use. It was there fore prima faoie bound to pay for them. It had paid at the same time $3 a ton to plaintiff for hay. And this would be prima faoie sufficient evidence of value. It interposes this contract as a defense to Peck’s claim, and as a basis to its claim for damages. But it is guilty of the first breach. Can it say that that contract which it has broken is still in force, and operative to defeat plaintiff’s otherwise just claim? Can it insist upon Peck’s performance of the contract when it has failed to perform? Is it any more binding upon Peck than upon it? It is generally true, that the party who is guilty of the first breach of a contract can neither found a right of action upon such contract, nor make it the basis of defense to an otherwise just claim. And we think this case furnishes no exception to the general rule. After the first ten tons had been delivered, the hay was to be paid for as delivered. Upon the delivery of each ton Peck was entitled to his pay therefor, and if the company then refused it was guilty of a breach. But say counsel, Peck delivered hay after the refusal to pay for the two tons, and therefore waived his right to insist upon the breach. We do not so understand the testimony, or the contract. We do not understand that there was any refusal to pay for these two tons until after the 13th of November. There was a dispute as to whether these two tons were good and merchantable hay, which, according to Peck, was left unsettled, and according to the company was settled by Peek’s conceding that they were not. According to the verdict of the jury, Peck’s statement must be held to be the correct one. There was therefore no distinct refusal to pay, no positive breach, until after Peck had delivered all the hay which he did deliver. He delivered nothing after the company refused to pay. And we do not understand that upon the delivery of each separate ton Peck was under obligations to make a specific demand for the pay for that ton, or on failure to do so waived the right to insist upon a subsequent refusal to pay as a breach of the contract. His right to pay existed at the delivery of each ton, and the right continued, although not insisted upon, until several tons had been delivered. We think therefore the first breach is chargeable to the company, and that there was no waiver of the right to insist upon that breach.
• The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Beewee, J.:
The plaintiff in these two cases (Nos. 721 and 722,) was sheriff of Howard county, and the claims are for fees on personal tax warrants. No service was made of these warrants. The officer claimed mileage, and a fee of twenty-five cents for return of “No goods.” The district court decided adversely to both claims, and the plaintiff alleges error. The claim for mileage was properly rejected. Comm’rs Labette County v. Franklin, 16 Kas. 450. The fee of twenty-five cents, for return of “No goods,” should have been allowed. Gen. Stat. p. 477, § 3. This is all there is in case No. 722.
In No. 721 this additional fact appears, which it is claimed will affect the question of. mileage. The warrants were for the taxes of 1873. The person who was county treasurer that year became a defaulter, and abandoned the office. The tax-roll was also destroyed. Subsequently a new roll was ’ prepared, which by act of the legislature was declared valid, and warrants ordered to be issued upon it, as upon the original. (Laws 1875, p. 153.) Warrants were issued, and placed in the hands of the plaintiff to collect. Two of the parties against whom warrants were thus issued produced receipts, showing the payment to the defaulting treasurer while in office. Of course that defeated any service of the warrant. Hence plaintiff contends that as he could have served the warrant, and attempted to do it, and was prevented only by reason of the fact that the party against whom the warrant ran had already paid his tax, that he is entitled to his mileage, as though he had served it. And this claim seems to us well founded. Officers to whom process for the collection of money is directed, take the chances of finding property, out of which to make the debt; but they have a right, as against the party in whose favor or at whose instance it is issued, to consider the process as valid, and authorizing them to take measures to execute it. If not valid, and not giving the authority to collect, and the defect is chargeable to the party, and by reason thereof the collection is defeated, it would seem clear that the officers would be .entitled to fees for what they actually did, just as though the process was valid, and that the party would be estopped from saying that no service had been made of it. Hence we think the sheriff was entitled to mileage on these two warrants.
The judgments in both cases will be reversed, and the cases remanded with instructions to render judgment on the agreed facts in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Jackson, J.:
This is an appeal by the defendent Simpson from his conviction of - defrauding Charley O’Hern of the value of a W-930 Case tractor, the price of which was between $3500 and $3600.
O’Hern, a resident of Hennessey, Oklahoma, together with a neighbor, Lambert Kuzik, went to Kinsley, Kansas on- or about May 21, 1962, where he met Claud Simpson. At this time, Simpson priced to him the tractor involved here, a tandem disk and a one-way plow. O’Hern, after some dickering, and believing the tractor belonged either to Simpson or the Fox Company, the Case implement dealer in Kinsley, made the purchase of the three items and gave several checks to Simpson that day totaling $4,550.00. The checks were made payable to defendant and to other persons as payees, under the supervision of Simpson. All these checks were paid by O’Hern.
Simpson delivered the property to O’Hern’s home in Hennessey, Oklahoma. However, it was shown that Simpson did not have title to nor had he any right to sell or remove the tractor from Edwards county. The title to the tractor remained in the Case Credit Corporation. When the Case Credit Corporation discovered that the tractor had been removed, they questioned Simpson and were told by him that the tractor was in Idaho. Later, having found that the tractor was, in fact, in OWahoma, the Case Credit Corporation filed a replevin action at Hennessey, Oklahoma to recover the tractor. O’Hern consulted a lawyer and was told that there was nothing he could do to defeat the replevin action so he turned over the tractor to the Case people. Then he proceeded to come back to Kansas with blood in his eye and brought a criminal action sounding in fraud against Simpson.
If Simpson had paid the full amount he received as partial payment from O’Hern to Fox or to Case, he would have been in no trouble but he did not turn over enough of the amount to satisfy the mortgage.
One of the matters urged on the appeal is that there was a motion for a directed verdict and in an attempt to bolster the fact that a directed verdict should have been given, appellant cites the case of State v. Cooper, 190 Kan. 101, 372 P. 2d 289. It would appear that appellant has failed to be guided by the rule in the Cooper case. The second paragraph of the syllabus in this case reads as follows:
“In reviewing an order overruling a motion to discharge the defendant in a criminal case, the Supreme Court on appeal examines the record to determine whether there is an absence of substantial evidence proving or tending to prove the essential elements of the crime charged. If from all the facts and circumstances disclosed by the evidence the jury might have reasonably drawn an inference of guilt, the defendant’s motion for discharge is properly overruled and the verdict of guilty will not be disturbed.”
Another case which follows the same rule is State v. Handke, 185 Kan. 38, 340 P. 2d 877. See, also, State v. Goetz, 171 Kan. 703, 237 P. 2d 246.
Appellant contends the trial court erred in refusing to give to the jury his requested instructions identified as Nos. 1 and 2; and it also erred in giving Instruction No. 3 to which he objected. From a careful study of these instructions, it appears the substance of Instructions Nos. 1 and 2 was included in the Court’s instructions submitted to the jury. We call attention to State v. Parker, 177 Kan. 39, 276 P. 2d 317, in which the court held in the syllabus:
“1. Error may not be predicated on refusal to give requested instructions when it appears that those given contain the substance of those refused.”
After a thorough consideration of Instruction No. 3, where it was stated “that one in possession of personal property offering it for sale without any statement as to the conditional title or lien, thereby represents that he is the owner of said property and has a legal right to sell the same,” we conclude there is no merit in appellant’s contention that giving such instruction to the jury was improper.
It will be noted that the court gave appellant fifteen to thirty years as an habitual criminal under G. S. 1949, 21-107a. Appellant raises the question whether he can be classed as an habitual criminal. The State of Kansas served written notice on the appellant on December 5,1962, as follows:
“You are hereby notified that the State of Kansas will in the above entitled action offer proof of prior convictions of the defendant in this case, prior to final judgment and sentencing of the defendant in the above entitled action and will request the court, if and when sentence is imposed upon you in this action that judgment and sentence be pronounced under and by virtue of the provisions of 21-107a G. S. 1949.”
The State furnished certified copies of prior convictions in the State of Missouri — convictions of forgery on August 23, 1949 and on August 3, 1953, and a conviction for escaping confinement on January 20, 1955. These former convictions were fixed in the record and were not denied.
There seems to be ample evidence to support the decision of the trial court. The judgment is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
This is an original petition in habeas corpus and comes under our constitutional grant of authority to entertain the
original petition (Constitution of Kansas, art. 3, § 3).
The case has been here on an ordinary appeal in State v. Stubbs, 186 Kan. 266, 349 P. 2d 936. Petitioner took the above appeal himself, and much the same matters were argued in that appeal as are now posed. Petitioner was convicted of the crime of murder in the second degree and while on the stand as a witness, he testified he had been previously convicted of a felony on two different occasions. Second degree murder is governed by G. S. 1949, 21-402, and the habitual criminal statute is G. S. 1949, 21-107a.
Petitioner argues that the habitual criminal statute should not have been employed because no mention was made of it in the information. That is not the test which we employ in Kansas. If, at the time he is sentenced, it is established from the record and other competent evidence that the defendant is an habitual criminal, it will be held valid. That is, the fact of his former convictions must be brought out and defendant must be aware of the facts.
The opinion in State v. Stubbs, supra, gives the details of his fight with Harned. The written statement was admitted in evidence after the court had fully considered the problem.
On page 270, we find the statements concerning the two former felonies which were admitted by defendant and now that defendant is convicted of a third felony, he is subject to being sentenced under the habitual criminal statute, G. S. 1949, 21-107a.
Stubbs seems hazy about the happenings the night of the murder, due to the influence of alcohol and a blow on his head. However, the evidence at the trial left no doubt that he had a fight with Plarned using a knife, resulting in Harned’s death.
This is a proceeding in habeas corpus but the case of State v. Stubbs, supra, was an appeal from the criminal case. He was represented by capable counsel for the trial of the case, although he had no counsel on the appeal. However, a judgment in the criminal case is more completely final than a mere habeas corpus decision.
We believe the opinion in State v. Stubbs, supra, covers all. the questions in this case. The petition for a writ of habeas corpus is denied. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from an order of the district court permitting an additional party to be made defendant after an appeal from the court of common pleas, Sedgwick County, Kansas, and the overruling of a motion to quash and a demurrer.
The facts will be briefly stated. The plaintiff brought an action against the defendant, Grace Diamond, in the court of common pleas of Sedgwick County, Kansas, to recover for labor and material furnished in connection with the repair of an air conditioner. The prayer was for the recovery of $197.72. Plaintiff obtained judgment in the sum of $7.23, the amount admitted to be due by defendant.
The plaintiff appealed to the district court. After perfecting his appeal, plaintiff filed a motion to have R. H. Macy & Co., Inc., “Innes” made an additional party defendant. The motion was allowed and service of summons was duly made. Macy appeared specially and moved to quash the summons for the reason that the court had no jurisdiction of it as an added defendant. The motion was overruled.
Following other procedural steps, which are not material to the disposition of the controversy, plaintiff filed an amended bill of particulars. Macy filed a demurrer which was overruled.
The defendant, Macy, has appealed, specifying as error the over ruling of the demurrer, the order making Macy an additional party defendant, and the refusal to quash the service of summons. The appeal was taken on December 15,1961.
It has now been shown to this court that plaintiff, appellee, accepted payment from the defendant, Grace Diamond, in full settlement and satisfaction of his claims against all of the defendants. On motion of plaintiff a journal entry of dismissal was entered by the district court which reads:
“It Is Therefore, Considered, Ordered, Adjudged and Decreed that the Journal Entry of Dismissal with prejudice, signed by the Honorable B. Mack Bryant, be approved as of this 28th day of August, 1962, a regular day in the April, 1962, term of Court.
“It Is Further Considered, Ordered, Adjudged and Decreed that the defendant’s, R. H. Macy & Co., Inc., “Innes,” appeal pending in the Supreme Court of Kansas, since the 15th day of December, 1961, and the rights thereunder cannot be cut off by the plaintiff by dismissing this case with prejudice in the District Court.”
Appellee has filed a motion to dismiss the appeal for the reason that appellant, one of the defendants below, has requested no affirmative relief and that the dismissal of the action with prejudice as to all of the defendants renders the appeal moot.
The appellant suggests that he has an absolute right to appeal from an order overruling a demurrer and the question is of such importance that it should be determined.
There is no additional relief that this court can grant the appellant on appeal. The appellant sought only to escape from the possibility of having a judgment rendered against it in the court below. The dismissal of the action with prejudice as to all of the defendants has accomplished that purpose.
The theory on which appellant claims the right to be heard on appeal is not applicable in this case. Had the action been dismissed without prejudice a much different situation would exist. A plaintiff cannot by the dismissal of an action without prejudice render moot an appeal from an order overruling a demurrer, as the defendant may again be confronted with the same legal question. (Kotwitz v. Gridley Motor Co., 148 Kan. 676, 84 P. 2d 903.) Neither will an appeal be dismissed as moot because of changed circumstances if by leaving a judgment unreversed vital rights of the parties might be affected in the controversy. (Moore v. Smith, 160 Kan. 167, 160 P. 2d 675; State, ex rel., v. Engler, 181 Kan. 1040, 317 P. 2d 432.)
However, a much different situation exists where an action has been dismissed by the plaintiff with prejudice pending appeal and the defendant seeks no affirmative relief. There are then no rights left on behalf of either party which could be affected and the appeal is moot.
In Williams v. City of Wichita, 184 Kan. 53, 334 P. 2d 353, it was stated:
“. . . This court, under decisions so numerous that their citation is neither necessary nor required, has long been committed to the rule that it will not consider and decide questions raised on appeal when the record makes it clearly appear that any judgment it might render with respect thereto would be unavailing or ineffective. Another rule of like import, and equally well-established, is that when a question becomes moot, judicial action ceases.” (p. 56.)
The appeal is dismissed.
The request of the appellee that the cost of the appeal be charged to the appellant is denied as the costs accrued before the dismissal of the case in the lower court.
APPROVED BY THE COURT.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
Sidney Smith was convicted in the district court of Bourbon county of the offense of burglary in the second degree. Pursuant thereto he was committed to the state penitentiary. His appeal, pro se, from that conviction and sentence was dismissed by this court. Subsequently he Sled a petition in the district court of Leavenworth county for a writ of habeas corpus. Following a hearing the petition for a writ was denied. The appeal presently before us is from that order.
The basic question presented is whether he was entitled to be represented by court-appointed counsel in his appeal from the Bourbon county conviction and sentence.
Because of the nature of the case it will be necessary to narrate in detail the factual background of the matter.
On March 4, 1960, Smith, hereafter referred to as defendant, stood charged in the district court of Bourbon county with the offense of burglary in the second degree (G. S. 1959 Supp. 21-520). Upon being informed by him that he did not have counsel to represent him and that he had no money or means to employ counsel, the district court, pursuant to the provisions of G. S. 1959 Supp. 62- 1304, appointed Buford L. Shankel, a qualified and practicing attorney of the county, to represent him. On March 11, 1960, defendant and Mr. Shankel appeared in court and a plea of not guilty was entered. The case was set for trial by jury on March 18, 1960. The case proceeded to trial and defendant was found guilty as charged. Defendant’s motion for a new trial was argued and overruled on March 25, 1960, and he was sentenced to confinement in the state penitentiary for a term of not less than five years nor more than ten years (G. S. 1949, 21-523). Defendant then informed the court that he desired to appeal and requested that he be allowed to remain in the county jail. He made no request for the appointment of counsel to represent him on appeal. His request to remain in the county jail was denied and he was ordered placed in the custody of the sheriff for execution of the sentence. Shortly thereafter he was delivered to the state penitentiary.
On April 4,1960, defendant — pro se — filed a notice of appeal with the clerk of the district court of Bourbon county, and on April 7, 1960, a copy of such notice of appeal, and a copy of the journal entry covering the trial proceedings in the district court, were transmitted to and filed in the office of the clerk of this court. The appeal in this court was docketed as case No. 42,067.
The records of this court show the following with respect to that appeal:
On April 21, 1960, defendant filed a motion for stay of sentence. On May 13, 1960, the motion for stay was denied because of noncompliance with the provisions of G. S. 1949, 62-1724 (b), relating to the steps to be taken by one seeking stay of execution of a sentence pending an appeal.
In the meantime the appeal had been set down for hearing for September 29, 1960.
On August 11, 1960, defendant filed a motion in which he stated that he had no money or other means with which to secure the services of an attorney and requested this court to appoint an attorney to represent him in tibe appeal.
On August 19, 1960, his motion for appointment of counsel was denied and the case was continued.
On December 15, 1960, defendant filed a petition in this court for a writ of habeas corpus, and it was docketed under the same case number (42,067) as his appeal.
On January 13,1961, the petition for a writ of habeas corpus was denied upon the ground “it seeks review o£ alleged trial error when an appeal from petitioner’s conviction is presently pending in this court for that purpose.”
Later, defendant contacted James E. Fussell, an attorney in Leavenworth. On March 17, 1961, Mr. Fussell advised the clerk of this court by letter that he had just been retained by defendant to represent him in the appeal, which, in the meantime, had been set for hearing on April 4, 1961.
On March 18, 1961, Mr. Fussell filed a motion requesting that his name be entered as attorney of record for defendant in the appeal then pending. On March 21,1961, the motion was allowed, and Mr. Fussell’s name was entered as attorney of record.
On March 21, 1961, the state, by the attorney general and the county attorney of Bourbon county, filed a motion to dismiss the appeal on the ground:
“That notice of the appeal by appellant has not been served on the County Attorney of Bourbon County, Kansas, and proof of service has not been filed with the Clerk of the District Court as required by Section 62-1724, General Statutes of Kansas, 1949.”
A copy of this motion was mailed to defendant on the same date.
On the same date this motion to dismiss the appeal was filed (March 21, 1961) this court entered an order allowing Mr. Fussell, as attorney for defendant, twenty days in which to file a response, and the case was removed from the April, 1961, assignment.
On April 7,1961, Mr. Fussell filed a response to the state’s motion to dismiss the appeal, requesting this court to deny the motion, and alleging:
“1. That he, Sidney Smith, Appellant herein did on or about April 1, 1960, serve a copy of his Notice of Appeal on the county attorney of Bourbon County, Kansas, by sending a copy thereof to the clerk of the District Court, Bourbon County, Kansas, via United States mail, postage prepaid and did in fact send three copies of such notice of appeal and advise the clerk of the District Court of Bourbon County, Kansas, that one such copy was to be served upon the county attorney of Bourbon County, Kansas.”
On April 12, 1961, this court entered an order dismissing the appeal on the authority of State v. Combs, 186 Kan. 247, 350 P. 2d 129; State v. Shehi, 185 Kan. 551, 345 P. 2d 684; State v. Sims, 184 Kan. 587, 337 P. 2d 704, and G. S. 1949, 62-1724.
Accordingly, defendant’s appeal was dismissed.
On October 11, 1961, defendant filed in this court a petition for a writ of habeas corpus. It was docketed as case No. 42,835. On October 20, 1961, upon consideration of the petition, this court denied the same “on the ground that habeas corpus is no substitute for an appeal to review trial errors.” On October 26, 1961, defendant filed a motion for rehearing. Prior to any action being taken on such motion for rehearing, defendant, on November 15, 1961, advised the clerk of this court by letter that he desired to withdraw the motion.
On March 26, 1963, while still confined in the state penitentiary under the Bourbon county sentence on March 25, 1960, defendant filed a petition for a writ of habeas corpus in the district court of Leavenworth county. Among other things, the petition, in paragraphs 3(b) and 3(c) thereof, alleged that defendant was unlawfully detained and restrained of his liberty by the warden of the penitentiary because of the denial of counsel to handle his appeal, thus denying him the right to have his conviction reviewed because of his ignorance of procedure on appeal.
On April 17,1963, the petition for a writ was heard by the district court of Leavenworth county. Defendant was present in person and introduced evidence. At the conclusion of the hearing the court denied the petition for a writ and, among other things, stated:
“We are concerned with as to whether or not the court did have jurisdiction; whether or not the sentence imposed was valid; and whether or not there were any Constitutional rights of the petitioner violated so that the Court would lose jurisdiction to impose a sentence, and none of those things appear to be present in this case.
“So, the only thing this Court can do here at this habeas corpus proceeding is deny the petition for release from custody.”
It is from that order that the appeal now before us (case No. 43,647) was taken.
Defendant specifies as error (1) the failure of the district court of Bourbon county to appoint counsel to represent him in his appeal from the judgment and sentence of that court of March 25, 1960; (2) the order made by this court on August 19, 1960, denying his motion for appointment of counsel to represent him in the appeal, and (3) the order of the district court of Leavenworth county made on April 17,1963, denying the petition for a writ of habeas corpus.
Before entering into a discussion of defendant’s specific contentions in the appeal now before us we comment briefly on the proceedings heretofore related which occurred prior to the filing of the habeas corpus petition in the district court of Leavenworth county.
G. S. 1959 Supp., 62-1304, provides for the appointment of coun sel for an indigent defendant to conduct his defense to an indictment or information charging any offense against the laws of this state. Pursuant to this statute the district court of Bourbon county appointed Mr. Shankel to represent defendant at the trial on the burglary charge. The record establishes that Mr. Shankel represented defendant throughout the Rial and at the hearing on the mohon for a new trial. Except in a case where an indigent defendant has been found guilty of murder in the first degree and his punishment fixed at death, the statute makes no provision for the appointment of counsel to represent an indigent defendant on appeal. Defendant made no request that the district court of Bourbon county appoint counsel to represent him on appeal. At the time in question no statute or rule of this court required appointment of counsel on appeal in a case such as this. Mr. Shankel’s duties and obligations as court-appointed counsel ended with the overruling of defendant’s motion for a new trial.
G. S. 1949, 62-1701, provides that an appeal to this court may be taken by a defendant as a matter of right from any judgment against him. G. S. 1949, 62-1724, provides that a defendant may appeal to this court at any time within six months from the date of sentence, and further provides what steps must be taken in order for a defendant to obtain a stay of execution of the sentence pending disposition of the appeal. Here the defendant, within time, filed a notice of appeal pro se, as he had a right to do. He did not, however, comply with the statutory provisions respecting a stay of execution of his sentence, and both the district court of Bourbon county and, later, this court, on May 13, 1960, properly denied his motion for a stay of execution.
As heretofore related, defendant on August 11, 1960, filed a motion in this court for the appointment of counsel to represent him in his appeal then pending. The motion was denied on August 19, 1960, and, as of that time, no statute or rule of this court required the appointment of counsel on appeal except in a case where an indigent defendant had been convicted of murder in the first degree and his punishment fixed at death. Being in accordance with the well-established rule, and not being in violation of any statute, this court’s denial of defendant’s motion for the appointment of counsel on appeal was therefore proper.
In March, 1961, defendant employed Mr. Fussell, an attorney of Leavenworth, to represent him in the appeal which was still pend ing, and Mr. Fuss ell’s name was entered as his attorney of record in the files of this court.
As heretofore related, the state, on March 21, 1961, filed a motion to dismiss the appeal on the ground that notice of the appeal had not been served on the county attorney of Bourbon county, and that proof of service had not been filed with the clerk of the district court as required by G. S. 1949, 62-1724. Mr. Fussell was granted twenty days in which to file a response to the state’s motion to dismiss. He filed a response, the pertinent portions of which are quoted above, and it will be seen that literal compliance with the provisions of the appeal statute was not made. In fact, defendant so concedes. Accordingly, on April 12, 1961, this court dismissed the appeal. In State v. Sims, 184 Kan. 587, 337 P. 2d 704, adhered to by this court in sustaining the state’s motion to dismiss, it was held:
“Supreme court has no jurisdiction to entertain an appeal by a defendant in a criminal case, unless he first complies with G. S. 1949, 62-1724 by serving within time prescribed therein notice of appeal on the county attorney of the county in which he was tried, and filing the same, showing proof of such service, with the clerk of tire district court.” (Syl.)
In the course of the opinion it was said:
“. . . It is apparent that in order for a defendant to perfect an appeal in a criminal action so that this court may have jurisdiction to review the decision of the trial court or some intermediate order thereof, not only is service of the notice of appeal on the county attorney in the county in which defendant was tried mandatory, but such notice, together with proof of service on the county attorney, must be filed with the clerk of the district court within the time provided by law. Such has been the rule in this state since the early days. (Citing cases.)” (p.588.)
To the same effect are the Combs and Shehi cases, above mentioned.
It will be seen, therefore, that under the well-established rule of this court the appeal was properly dismissed.
Neither of the habeas corpus petitions filed directly in this court requires any discussion. Both were properly denied.
As before related, defendant later, on March 26, 1963, filed a petition in the district court of Leavenworth county for a writ of habeas corpus. After a hearing the petition was, on April 17, 1963, denied, and the appeal before us is from that order.
Before going directly into a discussion of the basic question involved, we take note of a contention by the appellee warden (here after referred to as the state) that the record establishes that at the time in question defendant was not an indigent person and therefore was not, under any statute, or any rule or decision of this or any other court, entitled to have counsel appointed for him on appeal.
On the question of defendant’s indigency we believe the contention is without merit. The appeal from Bourbon county was taken in April, 1960. Defendant’s motion — the contents of which are noted above — for this court to appoint counsel was filed on August 11, 1960. It was denied on August 19, 1960. At that time, and during that period, defendant had no counsel. It was not until March, 1961, that he employed Mr. Fussell to represent him in the appeal then pending. At the hearing on the habeas corpus petition in Leavenworth county defendant testified that his appeal from the conviction in Bourbon county had been placed on the calendar of this court and had remained there for more than one year — “at which time I engaged Mr. Fussell, having at that time received my old-age pension and was able to employ an attorney.”
Our conclusion is that the record sufficiently established that in August, 1960, defendant was an indigent person within the meaning of statutes and rules pertaining to the appointment of counsel.
For purposes of discussion and decision, we make no point of the fact that defendant did not request the district court of Bourbon county to appoint counsel to represent him on appeal. He later requested this court to do so — and his request was denied. The fundamental question, therefore, is whether he was entitled to court-appointed counsel on appeal — irrespective to which court the request was made.
Defendant concedes that in 1960 there was no statute, or any rule or decision of this court, requiring the appointment of counsel on appeal in a case of this nature, that is — a burglary conviction. It is argued, however, that had this court appointed counsel for him back in August, 1960, which was well within six months from the date of his sentence in Bourbon county (G. S. 1949, 62-1724), counsel so appointed undoubtedly would have corrected the defect in the taking of the appeal, and therefore the appeal would not have been subject to dismissal.
It is further contended that the decision of the Supreme Court of the United States in Douglas v. California, 372 U. S. 353, 9 L. ed. 2d 811, 83 S. Ct. 814, rendered on March 18,1963, requiring the appoint ment o£ counsel on appeal for an indigent defendant in a state court, has retrospective application and thus “refers back” to 1960, and therefore the order of this court made on August 19,1960, denying defendant’s motion for counsel on appeal, constituted a denial of due process and equal protection of the law. Defendant concedes the decision in the Douglas case is silent on the matter of its retrospective application, and that the same is true of the landmark decision of the Supreme Court of the United States in Mapp v. Ohio, 367 U. S. 643, 6 L. ed. 2d 1081, 81 S. Ct. 1684 (June 19, 1961), which held that, as a matter of due process, evidence obtained in an illegal search and seizure is inadmissible in a state court.
In connection with the Mapp case, defendant cites Hall v. Warden, Maryland Penitentiary, 313 F. 2d 483, decided by the United States Court of Appeals, 4th Circuit, on January 17, 1963, in which it was held that the holding in the Mapp case applies retrospectively. By analogy, therefore, it is contended that if the decision in the Mapp case has retrospective application — the same is true of the Douglas case requiring appointment of counsel on appeal for an indigent defendant in a state court.
On the other hand, the state directs our attention to two decisions rendered subsequent to the Hall case, above, which hold that the ruling of the Mapp case does not have retrospective application— Gaitan v. United States, 317 F. 2d 494 (United States Court of Appeals, 10th Circuit, April 22, 1963), and United States v. Walker, 323 F. 2d 11 (United States Court of Appeals, 5th Circuit, September 12, 1963, reported at 32 LW 2137). In this connection the state contends that if the holding in the Mapp case is not to be applied retrospectively — then neither is the Douglas case.
It is clear that only the Supreme Court of the United States can give a definite and authoritative answer to the question whether the rule of the Douglas case is to be applied retrospectively. If so applied, however, the practical effect may well be to require the reopening of criminal cases long since finally adjudicated. We believe that, as applied to the facts before us, the contention advanced in some quarters that later decisions of a court “were always the law,” overlooks and departs from reality, and until directed by the Supreme Court of the United States to construe the Douglas case as having retrospective application — we decline to do so.
Being mindful of the import of the Douglas decision, which was handed down on March 18, 1963, this court, on April 16, 1963, adopted the following rule:
“No. 56. When any defendant has been convicted of a felony and he is without means to employ counsel to perfect an appeal to the supreme court, he may make affidavit to that effect, stating that he intends to appeal and requesting the appointment of counsel. The judge of the court in which such defendant was convicted shall, when satisfied that the affidavit is true, appoint competent counsel to conduct such appeal.”
to the end that henceforth all indigent defendants convicted of a felony are, under the terms and conditions therein set forth, entitled to court-appointed counsel on appeal in harmony with the Douglas decision.
At the time in question there was no statute — either state or federal — and no rule or decision of this court or of the Supreme Court of the United States — requiring the appointment of counsel on appeal for this defendant. We therefore hold that this court’s order of August 19, 1960, denying his motion for the appointment of counsel on appeal, was not erroneous.
The order of the district court of Leavenworth county denying the petition for a writ of habeas corpus is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal from an order overruling the defendant’s motion to make an additional party defendant and directing that defendant’s counterclaim be stricken from his answer and made the subject of a separate action.
The facts which are material to this appeal are not in dispute. The plaintiff, Moorman Motors, Inc. sued the defendant, Fred W. Phelps, to recover a balance alleged to be due on the purchase price of a Studebaker automobile. The petition alleges that the car was purchased by Phelps under a conditional sales contract which Moorman Motors then assigned to General Motors Acceptance Corporation; that Phelps defaulted in his payments under the contract; that General Motors then repossessed the car, and reassigned the conditional sales contract to Moorman Motors which sold the car pursuant to said contract; and that, after the proceeds of the sale were applied on the contract, a deficiency remained, for which judgment was prayed.
To plaintiff’s petition, Phelps filed an answer which contained a counterclaim against Moorman Motors and General Motors Acceptance Corporation alleging in substance that those companies, acting in concert, had wrongfully repossessed the car at a time when he, Phelps, was not in default. Phelps accordingly prayed judgment against both corporations for the alleged wrongful conversion of the Studebaker car. In addition to his answer, the defendant Phelps also filed a motion to have General Motors Acceptance Corporation served with summons as a necessary party.
The defendant Phelps assigns as error the overruling of his motion and the order that his counterclaim be stricken from the answer and made the subject of a separate action.
The statute pertinent to the question presented in this appeal is G. S. 1949, 60-712, which reads as follows:
“When it appears that a new party is necessary to a final decision upon a counterclaim, the court or judge may either permit the new party to be made by a summons to reply to the counterclaim, or may direct the counterclaim, to be stricken out of the answer and made the subject of a separate action.”
As we read this statute, it appears free from ambiguity. Under its express terms, where a court is confronted by a counterclaim such as appellant has alleged, i. e., one involving a new and necessary party, it may choose to take either one of two actions. First, the court may permit the new party to be made a party to the action and require him, by summons, to reply to the counterclaim, or second, it may strike the counterclaim from the answer and direct it be made the subject of a separate action. Either one of those two courses of action was open to the trial court in this case. That the second course was chosen by the court may not be said to constitute error.
We are not unmindful of the appellant’s contention that he may be barred, in the event of an adverse decision in the instant action, from pursuing his counterclaim against Moorman Motors and General Motors Acceptance Corporation for damages arising out of the alleged conversion. However, we do not understand that such result will follow.
This is not a case where Phelps has failed to assert a claim for relief arising out of the transaction sued on by Moorman Motors. To the contrary, Phelps has been diligent in presenting his demand and affirming his position. That he may be precluded from litigating his counterclaim in this present action will be due, not to any fault or neglect on his part, but to the trial court’s order directing the counterclaim to be made the subject of a separate action. Such a situation is entirely different from that in which no attempt is made to assert an existing counterclaim.
In 50 C. J. S., Judgments, § 684, p. 135, the following rule is set forth:
“A party is not barred from suing on a claim or demand because he pleaded it as a set-off or counerclaim in a former action, if it was not adjudicated or allowed in such action, as where it was excluded or rejected by the court . . .”
Such would appear to be the rale in this state. In Columbian Title and Trust Co. v. City of Tribune, 133 Kan. 51, 298 Pac. 798, it was held that matters which have been expressly reserved or excepted by the court from its judgment are not res judicata in a subsequent action.
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The opinion of the court was delivered by
Brewer, J.:
This is a proceeding in mandamus, brought originally in this court, to compel the issue of one hundred and fifty thousand dollars of the bonds of defendant in payment of a subscription of a like amount of the capital stock of the plaintiff. The vote on the question of subscribing this stock and issuing these bonds was had on the 7th of January 1868, and the canvass by the county commissioners showed a majority in favor of the subscription and the bonds. The defendant challenges that vote, claims that a large number of illegal votes were cast, and that a majority of the qualified electors voted against the subscription and the bonds.
Two principal questions are presented, one of law and the other, of fact. The question of law arises on the force and effect to be given to the curative statute of 1868; and this, if resolved in favor of the plaintiff, will . , ..., waive the necessity of any inquiry into the question of fact. Sec. 1 of the act referred to, an act approved February 25th 1868, and by its terms applicable to all cases in which the election was held prior to January 21st 1868, reads as follows:
“Whenever a majority of the persons voting at any election called by the board of county commisioners of any county have heretofore voted in favor of subscribing stock and issuing bonds to any railroad company or companies, the board of county commissioners of such county may subscribe to the capital stock of such railroad company or companies to the amount and on the conditions specified in the orders of such boards of county commissioners in such cases, and pay such subscriptions by issuing, to each company, bonds of such county, at par, * * * whether such orders and elections, or either of them, have been made in compliance with the, statutes in such cases made and provided, or not, or whether the proposition submitted at the election had was for the subscription of stock and the issuance of bonds to one or more railroad companies.” (Gen. Stat. 892.)
. The contention of plaintiff is, that this act in effect legalizes all votes put in the ballot-box; that the phrase, “persons voting,” includes illegal, as well as legal votes; and that it was the intention of the legislature to preclude all inquiry back of the returns. On the other hand, defendant insists that the intention and effect of this act were simply to cure all defects in the election proceedings, to uphold the will of the majority, and prevent its defeat by any technical omission. The argument of plaintiff is plausibly and forcibly put, by its learned counsel. He says that the legislature had unquestioned power to authorize county boards to subscribe for stock in railroad companies, and issue county bonds in payment therefor, without first submitting the question to a vote of the people, and cites in support thereof, McCulley v. The Mayor, &c., 3 Head, (Tenn.) 317; Shelby Oo. Court v. C. & O. Rld. Co., 8 Bush. (Ky.) 209; McMillen v. Boyles, 6 Iowa, 304; McMillen v. The Co. Judge, 6 Iowa, 391; K. C. St. J. & C. B. Rld. Co. v. The Aldermen, &c., 47 Mo. 349; State, ex rel., v. Nodaway Co., 48 Mo. 339; Napa V. Rld. Co. v. Napa Co., 30 Cal. 435. And proceeding with his argument, counsel for plainfiff states, that— •
“Prior to this curative act of 1868, the state had run wild on the railroad question, and a mania had seemed to seize the public.mind, that railroads were projected in all directions, that every town and village was to be advanced immediately to the rank of a city by means of railroads, and every community to grow rich from them; that this excitement necessarily led to excesses and extravagances on the part of the people of counties, cities and townships, and bonds were recklessly voted to imaginary and worthless railroad enterprises. The legislature was largely influenced by this so-called ‘spirit of enterprise’ that pervaded the whole body politic. The result was, that bad and carelessly-framed laws were passed on the subject. No attempt was made to restrain this feeling, by wise and wholesome legislation. Upon the contrary, it was encouraged. New plans and schemes were devised by each succeeding legislature to encourage what was delusively termed ‘the spirit of enterprise,’ ‘the grand policy of public improvement,’ and ‘the development of the wonderful resources of the country.’ Under this unnatural system, and a disastrous public policy, much had been and was done. In many instances, capitalists, acting in perfect good faith, had been induced to invest their money and property in these railroad enterprises, and had been encouraged and induced to do so by the anxiety, the pledges and promises of the people, individually and in their corporate and representative capacities. Under the pressure of excitement and anxiety on the subject of railroads, it is unquestionably true, that many irregularities occurred in calling and conducting the elections. Is is equally clear that illegal and fraudulent voting occurred at very many of these elections. In fact, a fair and honest bond or county-seat election is of rare occurrence; and the same statement is unfortunately true of nearly all elections. We may and do regret this fact, but it is a fact, nevertheless. We do not justify it. It is a wrong to the public, and to individuals, to be condemned at all times and under all circumstances. The people knew of the existence of these irregularities, and of such illegal voting; the men who had invested their money in railroads thus created, knew it; the legislature knew it. * * * Every thoughtful man knew that this unreasonable excitement on the subject of building and aiding railroads must end sometime, and that when the end should come, that the very men who had been the most active promoters of it would be the loudest and most violent in their efforts to undo their work. One extreme follows another. The most radical advocates of a popular proposition of to-day, are the most radical opponents of that same proposition as soon as it becomes unpopular. They are the quickest to find fault with, and condemn the very acts that they were guilty of in the midst of this popular excitement. They accept cheerfully the benefits that have accrued to them and to the public as the results of the excitement, but are l’eady to doubt the morality and question the propriety of their former actions in producing these benefits. The truth of this proposition, in its full force, is clearly and forcibly illustrated by the evidence of witnesses in this action. The legislature knew that after the roads were built, and this popular excitement had subsided, and the public were in the enjoyment of all the benefits, accruing from such enterprises, that pay-day must come; that in many cases the people would be doomed to disappointment in their estimate of the benefits and advantages that would result from these railroad enterprises, and that when they were confronted with these disappointments, and pay-day should come, and even after they had obtained the real advantages of a good railroad, that they would seek out some advantage, real or technical, to avoid a compliance with their contract, and prevent the payment of their debt, and that every failure to fully realize their expectations would be attributed to some fault of the railroad company, and that they would seek every possible advantage or opportunity, fair or unfair, to avenge their disappointments, and avoid the very burdens that they had imposed upon themselves. Having a full knowledge of the truth of all these matters, and for the purpose of preventing controversies respecting the legality and regularity of such elections, and of the persons voting thereat, and as a matter' of sound public policy, the legislature enacted the law now under consideration.
“Now, in view of the condition of affairs existing at the time of the passage of this act (of February 25th 1868,) is it not .clear that it was the intention of the legislature to make valid and binding all contracts and agreements thereafter made, and all proceedings theretofore had under the laws then in force, whether the orders and elections out of which such contracts, agreements and proceedings grew had been in compliance with the statutes in such cases made and provided, or not? We think it was. If this act was not intended to do the things expressed in it, then it becomes a dead letter, and is incapable of construction or any rational solution. If, however, it means what the language used clearly imports, it is immaterial whether a petition asking for the election wás ever presented — even if it was required, which we deny. Is it material whether the judges and clerks were sworn? Is it material whether the election proclamation was published one or twenty days before the election, or whether it was published at all? Is it material whether the election returns were regular, or irregular, or whether any returns were made at all? Is it material whether one, or twenty, propositions for taking stock in as many different railroads were submitted at the same election?. Is it material whether the persons who voted at such election were legal, or illegal voters ? Are not all these matters involved in the legality and regularity of the election, and the question whether the election had been in 'compliance with the statutes’? If illegal votes were cast at such an election, would it be in compliance with the statute in such case made and provided? Certainly not; but it would be a clear violation of the law on that subject. From this fact does it not clearly follow, that illegal voting was one of the matters that was intended to be remedied by this act — one of the things that had been done not in compliance, but in violation of the statute respecting such elections, and therefore made valid? It was illegal acts, and illegal acts of this kind, that the act in question was intended to correct and make valid.. This view of the case is strengthened by the very first lines in the act, as follows: ‘Whenever a majority of the persons voting at any election called by the board of county commissioners of any county have heretofore voted in favor of subscribing stock/ etc. Does not the use of the phrase, ‘persons voting’ at such election, have precisely the same effect as if the act in express terms legalized all votes put in the ballot-box at such election? Does it not mean exactly that? and is it npt clear, that the legislature intended to do precisely that thing? We submit that this is true, and that the legislature had the power to do' this, if it had the power to legalize the election in any other respect.”
We have made this lengthy quotation from the brief of counsel, as showing in all its fullness and strength the argument in favor of the construction put upon the law by the plaintiff. To that construction we cannot assent, and will endeavor to give briefly our reasons therefor. Without entering into any discussion of the question, whether the legislature has power to authorize a county to subscribe to the capital stock of a railroad company without a previous assent of a majority of the electors, and conceding for the purposes of this case that it has, it is still a fact that it is against the course of our legislation on the subject. Uniformly the legislature has deemed it right, if not essential, that they who must bear the burden and pay the taxes should decide the question of incurring the liability. We need scarcely add, that there is a justice in this course which commends it to every one. We refer to the principal statutes: Laws 1864, p. 35, an act to enable certain counties to subscribe to the capital stock of two railroads, §1. Laws 1864, p. 69, an act authorizing Wyandotte county to subscribe to the stock of the U. P. Railway Co., § 8. Laws 1865, p. 41, an act authorizing counties and cities to issue bonds to railroad companies, §§ 1, 3 and 4. Laws 1866, p. 72, an act amending last act, §1. Laws 1867, p. 117, an act for incorporation of cities of second class, § 32. Laws 1868, p. 203, general incorporation act, §51. Laws 1869, ■ p. 108, amendment of last act, § 1. Laws 1870, p. 189, an act to enable townships to subscribe to the capital stock of railroad companies, § 5. Laws 1871, p. 134, an act con ■cerning cities of-the third class, §63. Laws 1872, p. 110, an act authorizing cities and townships to issue bonds for bridges, railroads, etc., §§ 3 and 9. Laws 1872, p. 210, an act concerning cities of second class, § 63. Laws 1874, p. 46, an act amending act of 1872, authorizing cities and townships to issue bonds for bridges, railroads, etc., §10, Laws 1875, p. 68, an act authorizing the city of Marysville to issue bonds in aid of railroads, § 3. Laws 1875, p. 190, an act authorizing Marysville and other townships to issue bonds in aid of railroads, §1. Laws 1876, p. 212, an act to enable counties, towns and cities to aid railroads, § 2. Laws 1876, p. 218, an act to enable counties, towns and cities to aid railroads, §5. There are also several acts.authorizing counties and cities to issue bonds in lieu of outstanding railroad aid bonds, or for funding or compromising existing railroad-aid indebtedness. Many even of these require a previous vote as a condition of the issue of the funding bonds, though in some cases the legislature seemed to think the vote authorizing the indebtedness originally was a, sufficient assent of the people. As against this, it is doubtless fair to state, that there were some charters granted by the legislature of the territory to railroad -companies which seem to embody authority to counties and cities to subscribe to the stock of the companies without any prior vote of the people. Laws 1855, p. 907, §17; p. 912, §14. And that in 1873 the legislature passed an act authorizing Toledo township, Chase county, to issue five thousand dollars of its bonds “for the purpose of building a side-track and depot on the line of the A. T. & Santa Eé railroad, * * * for the use and benefit of the people of said township;” (Laws 1873, p. 95, §1;) and also an act authorizing cities of the first class to purchase or condemn sites for depots “ to be field for the common use of all railroad companies now or hereafter connecting at such cities,” and to issue their bonds therefor. These two acts are scarcely exceptions to the general course of legislation, as in each case it would seem that that for which the bonds were to be issued, was to be and remain the property of the muni cipality, and for the especial use of its citizens. And the private charters were granted long before railroad building commenced in this state, or the attention of the legislature was seriously called to the matter. So it may fairly be said, that the course of our legislation has uniformly been to require the assent of the people as a condition of the burden of railroad-aid bonds. It would seem therefore that before a law passed in the very midst of this legislation, and while the subject was uppermost in the thoughts of all, should be construed as conflicting with the constant rule, the intention to deviate therefrom should be manifest and clear. Again, while the legislature might, in. view of the condition of affairs so forcibly and graphically pictured by counsel, wisely and justly so legislate as to guard the railroad companies against loss through any mere irregularities or omissions in the proceedings of the county officials, and to secure to them all that the majority of the voters had agreed to give them, it would seem equally wise and just that the people of every community should be protected from the imposition of burdens which they had actually refused to assume, and for which an apparent majority had been secured only by illegal and fraudulent votes. While any legislation may in particular instances work injustice, yet the spirit, the intent, the natural operation of every law should be to- secure equal justice to all parties to be affected by it. And surely, it is justice to companies and people alike, if the former receive all that the latter agreed to give, and the latter are protected from all burdens which they have refused to assume. Any legislation which aims at that, and attempts to remove all technical obstructions thereto, aims at justice. Any which aims to the one side or the other, is unequal and partial.
But turning to the act itself, we think the true, the natural interpretation of its terms is in harmony with the course of our legislation, and the dictates of justice. The language is, “ whenever a majority of the persons voting at any election * * * have heretofore voted.” This defines and describes the cases to which the law may apply. Now, the term “per sons,” standing by itself, is of course broad enough to sustain the construction claimed by counsel. It includes all, infants and adults, males and females, white and colored, citizens and aliens. But the word does not stand alone. The only persons referred to are “persons voting,” and voting is a legal act. “Voting” is not the mere physical act of of depositing a piece of paper in a box. The physical act must be performed under certain conditions, and with certain concomitants, to render it voting. There must be an election held under some authority of law. The time and place must in some way be legally designated. Election-officers, acting under legal warrant, must be present to receive the votes, and decide as to the qualifications of voters. The question to be decided, or the offices to be filled, must be named by law. The person voting must possess certain qualifications of age, sex, citizenship, and residence, as provided by law. All these must exist, and attend the physical act of depositing the paper in the box, to make it voting — so that when the statute speaks of “persons voting,” it describes those who are possessed of the legal qualifications to perform the physical act of depositing their ballots in the box under the circumstances and conditions prescribed by law. Only electors vote. Hence, when the statute names “persons voting,” it means those electors who at the election named have exercised their right of voting. That the language used, strictly construed, implies this, will scarcely be questioned. But the claim is, that some who are not electors do actually vote; that their votes are counted; and that hence a statute speaking of “ persons voting,” means all whose votes are received and counted, whether electors or not. To this we reply, that it is a general rule of construction, that when the law speaks of an act done or to be done, it implies that it is legally done or to be done. ' When it speaks of an election, it means a legal election. When it speaks of a vote, it means a legal vote. When it names a class or body of persons, it implies that the per-, sons truly and rightfully belong to that class or body. When it names electors, it means legal electors. When it speaks of a legislature, it means a legal legislature. Again: While • it is true that votes are counted as votes which are cast by persons not entitled to vote, it is not beause the law considers them rightfully there, but because through the imperfections of its machinery it has failed to eliminate the false from the true, and so is bound to assume all as true. Whenever it is able to detect the false, it rejects it. The election board is created in the first instance to judge of the qualification of those offering to vote, and to prevent those not qualified from exercising a right belonging only to those qualified. The law considers the action of the board as evidence that they whose ballots they received were legal voters, prima faeie evidence only it is true, but still in the absence of other testimony conclusive. It therefore- speaks of those persons as “voters,” and the ballots they cast as “votes.” But aware of the liability of this board to err, or be imposed upon, it provides a way of further inquiry; and if upon such further inquiry it appears that a ballot has been received from one not entitled to vote, it rejects that ballot, and no longer calls it a vote, nor the person casting it a voter. It treats it as though it had never existed. It is like a deed void upon its face, no deed at all. So that, when it speaks of a “ majority of the persons voting,” it means a majority of those rightfully voting. When it says that the person receiving a majority of the votes cast at an election shall be elected, it means a majority of the votes rightfully cast. The canvass may give one result, and if there be no contest that result determines what votes were rightfully cast. A contest may give another result, and this result is a more conclusive determination of the votes rightfully cast, and controls the result of the canvass. And yet the law, speaking of a majority of the votes cast, has reference all the while to those votes which -the processes of the law determine are rightfully cast. It implies legality. It assumes truth. If it intends to class the legal with the illegal, to mix the false with the true, it will use language not merely broad enough to include both, but either , necessarily including both, or plainly indicating the intention to mingle both. But again, the latter portion of the section shows what was intended to be remedied by the act — what omissions and errors it sought to cure. If a majority voted in favor of the subscription, it might be made, whether the “orders and elections, or either of them, have been made in compliance with the statutes in such cases made and provided, or not, or whether the proposition submitted at the election had, was for the subscription of stock and the issuance of bonds to one or more railroad companies.” So far as this last proviso is concerned, it refers to a matter upon which it was known there had heen conflicting decisions, and was intended to prevent controversy in the courts thereon. (See the discussion of this question, and the authorities cited, in Lewis v. Bourbon Co., 12 Kas. 213.) It bears upon the question here, only as indicating what matters were in the thought of the legislature, and the character of the defects intended to be cured. The first proviso is alone material — though the “orders and elections were not made in compliance with the statutes in such case made and provided.” The qualifications of electors were prescribed by the constitution, not the statutes. This is an act legalizing and validating elections. Did it intend to legalize votes which the constitution' forbade? "Was the scope and purpose of this language, to ignore the constitutional qualifications of electors, or simply to obviate any defects in the processes of the elections which the legislature had itself prescribed ? Plainly, as it seems to us, the latter. It was intended to cure any irregularities in the proceedings, to make good any defects or. omissions therein; and beyond that, left the original statutes authorizing these bond elections in full force; and by them the question of subscribing for stock and issuing bond's was to be determined by the qualified electors of the county, city or town. We had this act presented to us in the case of Lewis v. Bourbon County, 12 Kas. 186, and the views we now express are those we then held.
We pass now to the other question, the question of fact; and that is, whether a majority of the legal votes cast at said election were in favor of the subscription. And here we are confronted by an immense mass of testimony — some record evidence, the oral testimony of three witnesses, and the depositions of three hundred and eighty witnesses. We have patiently and carefully gone through with an examination of this testimony so far as it bears upon the election in Grasshopper Falls, and hastily looked through that concerning the election in Oskaloosa. Of course it will be impossible for us to refer to all this testimony in detail. We can only attempt to give some idea of its character, and then state the conclusions to which it has led us. A very full and accurate abstract and analysis was prepai’ed by the counsel for defendant, and has materially lightened our labors in the examination of this volume of testimony. The result of the canvass as declared by the commissioners showed a vote of 862 in favor, and 766 against the subscription, or a majority of 96 in favor thereof. There is no testimony challenging the vote elsewhere than in the two townships of Grasshopper Falls and Oskaloosa. The return from the former township showed a vote of 447 in favor, and of 8 against the proposition. To this vote the bulk of the testimony has been directed. Three months prior to this election, and on October 1st 1867, a similar proposition had been submitted to the people of Jefferson county, and lost by a vote of 700 to 723. At that election the vote of that township had been 334 in favor and 12 against. At the intervening general election the vote on the various county officers had ranged from 278 to 285. On the 30th of September 1865, the vote on the question of issuing bonds to the plaintiff had been 180 for, and 8 against. The vote therefore as returned was 109 larger than at a similar election three months prior, and 170 above that of the regular county election two months prior, or a good deal more than half as large again. The two poll-books and returns were taken by one of the judges of the election and placed, one in his desk, he being the township trustee, and the other in the hands of the county clerk for the commissioners’ canvass on the succeeding Friday. This ■canvass was made early Friday morning, and apparently with only the friends of the measure present. A few moments thereafter opponents came in, and complaining of the early canvass, asked to see the poll-books of Grasshopper township, but the county clerk’s copy had disappeared. A subpoena was sent to the township trustee to bring the copy he had retained, and it also had disappeared. And for seven years both copies were securely hid. In the absence of the poll-books, and without any list of the supposed voters at that election, the defendant proceeded to take testimony showing the different tracts of land and town lots within the township, and the names of all qualified voters on those respective tracts and lots in January 1868. Finally, by some means not disclosed, one of the poll-books was secured by the defendant, and has been identified and introduced in evidence before us. One hundred and ninety-four of the names on this poll-book are challenged by the defendant, and testimony is offered tending to show that they were not the names of legal voters. Twenty are shown by positive testimony to have been minors — nine of them by their own oaths, three by the testimony of their fathers, one by the testimony of his brother, and eight by the testimony of other. relatives and acquaintances. Fifty-seven are by equally positive and direct testimony shown to have been non-residents of the township. Three by their own testimony were colored men, and not then legal voters. Twenty-two testify that they did not vote at all, though their names appear on the poll-books, some of them declaring that they were out of the state at the time of the election. Between seventy and eighty of the names on the list are declared by more than a score of the citizens (who testify that they are well acquainted with all the people of the township, and have resided there three years before and after this election,) to be entirely fictitious, and that no such persons ever lived in the township. While the return shows only eight votes against the proposition, twenty-four whose names are on the poll-books testify that they voted upon that day against it. Besides this, there is a volume of testimony, and from many witness, showing in a general way, and without positively identifying persons and names, that boys, colored persons, and non-residents were voting, and that in many instances the same persons voted three or four times. Again, one of the judges testifies that he was out of the election room several times during the day, and that on his return he saw one of the other judges calling off names from a book, and the third depositing ballots in the box, while the clerks at the same time were recording names. On the other hand, we have the testimony of the two judges and the clerks denying this positively, and denying that illegal votes were received or recorded upon that day, and denying any fraud or illegality in the election proceedings. The value of their testimony is much impaired by the contradiction it receives from record as well as oral testimony. We quote the following criticism from the abstract and analysis furnished by the defendant, which is fairly supported by the record:
“Hillyer, Gunn, Gaines and Whitman testify that no colored man voted at that election except David Smith; and Hillyer, Gunn and Whitman positively and specifically testify that neither Ewin Hedspeth, Johnson May, nor Monroe Tompkins voted at that election; and all of them testify that no boys under 21 yeai’s of age voted at that election to their knowledge; and Hillyer testifies positively that neither E. B. Northrup, A. W. Robinson, Wm. Johnson, W. R. Hogan, Walter Furguson, John Marion, Wm. Gragg, jr., John Dodson, nor Wm. Dodson voted at that election. Gunn testifies that E. B. Northrup, A. W. Robinson, Wm. Johnson, A. Frazier, W. R. Hogan, Walter Furguson and John Marion did not vote to the best of his knowledge and recollection. Whitman testifies more positively that A. W. Robinson, E. B. Northrup, Wm. Johnson, Walter Furguson and John Marion did not vote. The names of all these persons so named by Hillyer, Gunn and Whitman are on the poll-book. Gunn, Hillyer and Whitman all testify positively that S. B. Hogan did not cast votes for or in the names of James Gordon, John Gordon and Wm. H. Mears;’ but the testimony of S. B. Hogan shows that he did cast these votes, and the names of the two Gordons and Wm. H. Mears are on the poll-book, and all three of them testify that they were not at the election and did not vote. Gunn, Hillyer and Whitman also testify positively that Daniel Weiser did not vote but once, and did not vote in the name of Luther Grigsby; but we have proved by Weiser himself that he voted three times, and cast one of his votes in the name of Luther Grigsby. The name of Luther Grigsby is found on the poll-book in the handwriting of said Whitman. In his testimony Whitman stated, as a reason for his positiveness, that said Grigsby was a relative of his wife, and frequently at his house, and he knew that he did not write Grigsby's name upon the poll-book. We also prove by W. A. Cowan and E. K. McCartney that said Cowan and Eobert Eiddle and T. H. Elliott ■cast votes in the names of J. H. Cowan, James Elliott and Martin Elliott; and we prove by Zach. Gragg that said Whitman cast a vote in the name of John Gragg; and we prove by W. H. Coffman that Henry Marion with said Hillyer’s knowledge and consent cast a vote for Henry Coffman, and that Henry Marion cast a vote in the name of George Cain. We also prove other repeating at that-election, all of which is generally and the most of it specifically denied by plaintiff’s witnesses; but the poll-book contains the names of the persons so voted for, and the persons are proven either to have been non-residents, or not to have voted at that election.”
Other matters also appear in the record tending to weaken their testimony, which it is unnecessary to notice. There is also testimony tending to impeach' in some degree the election at Oskaloosa, but into that we have not made a very careful examination, for from the matters to which we have alluded we are convinced that there were more than enough illegal votes polled at Grasshopper Falls to have changed the result. We know that allowance must be made for the imperfections of memory, and that some of those who say that they did not vote may in fact have voted as the poll-book indicates, and that some who testify that they voted against, may have forgotten, and really voted for‘the measure. But making allowance for all this, and still we must hold as we do. It does not seem probable that in a community no larger than this, ¡seventy or eighty men could live and become qualified voters and still their very names be unknown to so many citizens, living so long, and by their business and habits so familiar, with the community as are the witnesses in this case. The identification of so many individuals, and the proof of their want of qualification as voters, the general evidence of repeating, and illegal voting, the marked increase of the vote-over that of the two immediately prior elections, all point to-an illegal vote largely in excess of the majority disclosed by the canvass. It is with no feelings of pleasure that -we have-examined the testimony in this case, or reached the conclusions we have stated. No thoughtful man can read the story of an election conducted with such flagrant disregard of law and right, and be indifferent. More than one-fourth of the entire vote is shown to have been illegal and fraudulent, and this not in one of the crowded wards of a populous city,, where we must expect outrages on the purity of the ballot-box, but in a quiet country community. The fact alone carries its own comments, and speaks its own shame.
One single remark more, and we are done. Counsel speaks-of the fact that the plaintiff has built its road through Jefferson county, and honestly and fairly performed its part of the agreement, and that good faith requires of the county a like performance. It is a fact disclosed by the pleadings in this case, and indeed one of public knowlédge, that the validity of this canvass was denied at the time, and that in a very few days proceedings were commenced in the United States circuit court to enjoin the commissioners from subscribing to the stock of the plaintiff and issuing its bonds-therefor, and that such proceedings terminated in a perpetual injunction. (12 Kas. 127.) So that it cannot be said that the people waited quietly until the company had built its road,, and then denied for the first time the validity of the canvass. They have contested it from the first, and the company has-acted with full knowledge. While this fact does not bear upon the validity of the election, it does upon the good faith and conduct of the parties, and ought therefore to be stated.
The judgment will be entered for the defendant.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is, whether school lands, after they have been sold, and before they are fully paid for, are subject to taxation and to sale and conveyance by tax-deed. The plaintiff in error claims that this land cannot be conveyed by a tax-deed, for the following reasons: “First, The law in reference to the sale of school lands, is unconstitutional and void, as to said § 14, on the subject of taxation, because the law contains more than one subject, and one not clearly expressed in its title. Second, This section, and the tax-law, are unconstitutional and void, as impairing the obligations of the oontract with the United States regarding the disposal of school lands by this state. Third, The laws providing for the taxation of this class of lands, are unconstitutional and void, in that they do not provide for a rate of assessment and taxation uniform and equal with other property. Fourth, If these lands be taxable, the provisions of the law are illegal in providing a remedy by sale and deed of the land itself, whereby a title in fee is created out of a mere contingent interest of the purchaser of school lands; and there is no law for conveying such purchaser’s interests.”
None of these reasons are, we think, sufficient. Sec. 14 above referred to, (Gen. Stat. 945,) reads, “No purchaser of school lands prior to his obtaining title to the same, shall commit waste upon such land, or take or remove mineral or timber from the same, other than for use upon or improvements of said land. The lands purchased under this act shall be subject to taxation as other land, and in case of nonpayment of any taxes charged thereon, the said lands may be sold as in other cases; but the purchaser at said sale shall be subject to all the conditions of the bond of the original maker, and of the certificate of purchase.” The title of the act is, “An act to provide for the sale of the school lands;” and the subject-matter of the act is fairly indicated by its title. Surely, a section defining the interests and rights acquired by a^purchaser of these lands, is germane to the subject, and within the scope of the title. The state holds the land free from taxation under that provision of the tax-law which exempts “property belonging exclusively to this state.” Gen. Stat. 1021, § 3. Should not a statute authorizing a sale prescribe whether such a sale carried with it the exemption? and could such a provision be held foreign to the subject-matter? Bowman v. Cockrill, 6 Kas. 333; Comm’rs Sedgwick County v. Bailey, 13 Kas. 600. We fail to see wherein the taxing of these lands after they are 'sold conflicts with the obligations of any contract made with the United States regarding them. Doubtless the lands would sell for more if they were permanently or even temporarily exempted from taxation in the hands of individuals; but when or by what instrument did the state contract to so exempt them?
Nor do we see any section of the law which orders a different rate of assessment and taxation in respect to these lands from that prevailing as to all other lands. The solitary provision is, that “ the lands purchased under this act shall be subject to taxation as other lands,” etc. The real objection of counsel is exactly the reverse of this, and that is, that this property is assessed and taxed at the same rate as other property, when it ought not to be because the purchaser does npt hold the full equitable or legal title. In other words, there is an equitable mortgage on the land belonging to the state, and in the assessment this mortgage ought to be deducted from the value of the land; the purchaser’s interest in the land should be taxed, and not the land itself. But in no other case is the amount of an incumbrance deducted from the value of the land in assessing it for taxation. The land is assessed at its full value, and no account is taken of any mortgage or other lien. This may work a hardship on the land-owner, especially when the incumbrances nearly equal the value of the land; but still it furnishes no basis for enjoining the tax. The fact that the state holds the lien, can make no difference. That may render the mortgage exempt from taxation. So it would be if held by a non-resident. And in California it has been decided that taxing mortgages is itself double taxation, and cannot be tolerated, though the contrary is the general current of decision. But none of these questions affect the land-owner. It is one and the same thing to him whether the state, a non-resident, or a resident, owns the mortgage. His land is assessed at the same valuation. He is only interested in this way, and that in common with all others, that the more property there is within the state subject to taxation, the less will be the amount of the tax upon each. Nor does the state school-fund suffer any loss. The holder of the title simply takes the interest of the purchaser. In other words, he buys the land charged with the state’s lien. Such is the plain language of the statute. And in this it differs from the case of an ordinary mortgage. There, the tax-deed conveys the land discharged by the lien; here, still charged with it. But this is a matter of which the holder of the tax- deed may alone complain. He alone is wronged, if anybody. And in this case he is satisfied with and insisting upon his deed. But it is said that it is apparent, from §16 of the act, that the purchaser forfeits the land in case of a failure to make the deferred payments at the stipulated times, and that he therefore has neither a legal nor equitable title, but only a “contingent, conditional and inchoate equity,” which according to Parker v.Winsor, 5 Kas. 362, Comm’rs of Douglas Co. v. U. P. Rly. Co., 5 Kas. 615, is not subject to taxation. It is unnecessary to inquire what would be the rule independent of §14 above quoted, or whether but for that the interest conveyed Would be sufficient to render the land as such taxable. For with it the case stands thus: The constitution only restricts the legislature from taxing property “used exclusively for state” and other purposes. That has no application to these lands. They are in no sense “used exclusively” for any of the purposes there named. Taxing the interest passed by a sale of these lands, in no way conflicts with any contract made with the United. States, or the terms of any grant by it to the state. Being property within the state, and owned by the state, it is subject to legislative control. The legislature has provided for its sale, and in terms declared that when sold, although not fully paid for, it shall become subject to taxation. The purchaser buys with full notice of this condition. Can he complain if it is enforced ? We think not.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This case comes before us upon the allegations of the pleadings. The action was ejectment. The legal title of defendant in error was admitted, and plaintiff in error claimed an equitable title. And these are the facts alleged to show his equitable title: The land was entered by one Dallas Taggart on July 10th 1871, by him conveyed to C. E. Kelsey, and from him to defendant in error. Both the Kelseys received title with full knowledge of all the facts. The land was subject to entry only by actual settlers in good faith. Taggart was not a settler, but by false and fraudulent testimony made his proofs, and obtained his certificate. The land being vacant, Houck moved upon it, on the 2d of August 1872, with the intention of preempting it; he made valuable and lasting improvements thereon, and has ever since continued to occupy it. He was qualified to make a valid preemption of government land, took all the steps necessary to perfect his right to preempt this land, and sought' to make an entry and receive a certificate, but the land-officers rejected his application on the ground that the land had already been entered by Taggart. From this statement, these things appear: 1st, Kelsey’s title was fraudulently obtained from the government; 2d, it was so obtained long before Houck had any possession of or interest in the land; 3d, the government is not disposed to question the fraudulent proceedings of Taggart, or to disturb the title acquired thereby. And from them it follows, that Houck is in no position to question Kelsey’s title. In Caruthers v. Weaver, 7 Kas. 110, it was decided that a person having no title to or equities in a tract of land cannot question the consideration or good faith of one of the conveyances in the chain of title thereto. The principle is a plain one. If A. by fraud obtains a deed from B., it is B. that is wronged; and if he is willing to abide by the wrong, C., a stranger to the land, has no right to interfere, and say that the deed must not stand, and that the sale must be set aside. The party wronged is the only one who has any right to question the transfer. And that which is true in the case of individuals, is equally true when the grantor is the government. If a fraud is perpetrated upon it, and thereby a conveyance wrongfully obtained, it alone can set aside the transfer and recover, the land. A stranger cannot right its wrongs, or compel it to take back lands which have been fraudulently obtained from it. The authorities are clear upon this proposition. “A third party cannot raise in ejectment the question of fraud as between the grantor and grantee, and thus look beyond the patent or grant.” Field v. Seabury, 19 How. 324. In the case of Spencer v. Lapsly, 20 Howard, on page 272, Justice Campbell quotes approvingly the language used by Baron Parke in delivering the opinion in the case of Stephenson v. Newman, 16 Law and Equity, to-wit: “The effect of ordinary fraud is not absolutely to avoid the contract or transaction which had been caused by the fraud, bid to render it voidable at the option of the party defrauded. The fraud only gives the right to rescind. In the first instance the property passes in the subject-matter, and vests till avoided. It is well settled, that one without a prior equitable right to the land cannot attach in the courts the claim of the pre-emptor who holds the title from the United States. The land department at Washington may cancel the entry; but the courts have no right to examine into the regularity of proceedings before the register and receiver, unless the claimant shows a prior equitable right to the land when the pre-emptor entered it.” Mumford v. McKinney, 21 La. An. 547. A patent cannot be attacked collaterally even for fraud, whether charged to have existed in the procurement of the original grant, or in the proof of its execution, or in making the survey. For in these matters the right of interference rests only with the government. Individuals can resist the conclusiveness of the patent only by showing that it conflicts with prior rights vested in them. Moore v. Wilkerson, 13 Cal. 478. “Now it is apparent that all this charge, as made in the answer, tends to show that the United States were defrauded by this proceeding. These defendants did not suffer therefrom. But the United States do not complain. On the other hand, with every means of inquiring into such a matter in their own tribunals, by their own officers, they accept the sale as a fair one. * * '* These defendants cannot avail themselves of an injury which they charge another has suffered, when t]ie injured party does not only not complain, but even affirms the act by which it was inflicted.” Root v. Shields, 1 Woolworth U. S. Ct. Ct. 340. See also Stark v. Barrett, 15 Cal. 361; Mahoney v. Van Winkle, 33 Cal. 448; Gibson v. Chouteau’s Heirs, 39 Mo. 536, 565; United States v. Stone, 2 Wall. 525; Waterman v. Smith, 13 Cal. 373; Leese v. Clark, 18 Cal. 535; Brush v. Ware, 15 Peters, 93. It seems unnecessary to multiply authorities in support of a proposition that is so clear.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Schroedeh, J.:
This is an action to recover the balance of $2,000 due on the sale of three-year-old seed corn, the plaintiff contending such balance was due on an account stated. The defendant cross-petitions, alleging breach of a warranty as to germination and an oral agreement to adjust the price. The case was tried to the court. Without giving counsel an opportunity to argue the court announced its decision and entered judgment, finding the $2,000 to he due from the defendant to the plaintiff, but also finding that the plaintiff should pay the defendant $3,208.60, resulting in a judgment for the defendant in the sum of $1,208.60. Costs were divided between the parties.
Appeal has been duly perfected by the plaintiff.
The controlling question is whether the trial court erred in denying appellant’s right to have counsel argue its cause before the decision was announced by the court.
At the close of the evidence on September 12, 1961, the trial court stated:
“Now, as I started to say awhile ago, I suppose counsel will want a record that has been made in the last couple of days to go through before they submit their requested findings of fact and conclusions. Now then, I suggest that that be prepared and submitted and that the case could be argued then all at one time. When that time comes we can arrange a time that is agreeable for hearing on it.”
To the foregoing statement counsel for the appellant replied, “Yes, sir,” and counsel for the appellee, “Very well.”
On March 14,1962, the trial judge in his letter transmitting copies of his conclusions of fact and law, and advising counsel of his decision, stated as follows:
“As you will remember on July 20, September 11th and September 12, 1961, evidence was taken in the above case. When the evidence was all completed and because of a prior request for conclusions of fact and of law, it was arranged that suggested conclusions be submitted by each side and after they were submitted that the case stand for argument. As indicated this last step in the case occurred on September 12, 1961. Subsequent to that time suggested findings and conclusions were submitted by counsel for the defendant. I waited patiently for suggested findings and conclusions by the plaintiff. None have been received.
“It is my thought that this matter has delayed long enough.
“To a large extent the suggested findings of the defendant have been adopted and I enclose herewith conclusions of fact and of law, the original of which I am this date filing with the Clerk of the District Court. As a consequence judgment it is being entered for the defendant on his cross petition this date in the amount of $1,208.60. Costs are being divided since this case really developed into an accounting case.
“1 realize this is a departure from the minutes which I made on September 12, 1961, in that the case should stand for argument. I am not foreclosing argument. I would assume that counsel for the plaintiff and maybe counsel for the defendant will want to file some objections to the conclusions of fact and of law, and it is my suggestion that if those objections are filed that not only the objections can be argued but also the case itself argued at the same time.
“As I say I am doing this because I think the matter has been delayed too long already.
“Proper Journal Entry in accordance with the conclusions of fact and of law should be submitted for signature as of this date.” (Emphasis added.)
The appellee had previously requested the trial court to make written findings of fact and conclusions of law. When the decision was announced the appellant had not submitted its suggested findings and conclusions. This is admitted by counsel for the appellant. This, however, does not constitute a waiver of argument. At most the appellant would be at a disadvantage, upon submission of the case, for not having reduced to writing its requested findings and conclusions, when its adversary had done so. Counsel for both parties were told by the trial court the case would stand for argument. Counsel had no reason to think the decision would be announced without giving them an opportunity to argue the case or object to such procedure. Counsel were led to believe the case would stand for argument at a time agreeable to them and the court.
The appellee contends the appellant waived his right to have the case argued because the record does not show the appellant made any affirmative attempt to exercise its right to argue. In Boucher v. Roberts, 187 Kan. 675, 359 P. 2d 830, the court said:
“It is true that each party has the absolute right to have his case argued by counsel before the decision is rendered, whether it be tried to a court or a jury. However, in order to predicate error upon the refusal of the court to allow argument, it must appear that counsel has not waived the right by silence or acquiescence. The record should affirmatively show that permission to argue was refused. . . .
“The approved practice of dealing with trial errors is to make timely objection to them as they arise. Fairness to the court should prompt counsel to call attention to such errors reasonably, and he may be held to waive his right to relief where his conduct, expressions or silence shows acquiescence in an erroneous declaration of law or evinces a purpose to take advantage of unguarded expressions that would have been promptly corrected if pointed out. . . .” (p. 678.)
In the recent decision of Browning v. Lefevre, 191 Kan. 397, 381 P. 2d 524, after the evidence had all been presented, the trial court announced that it was ready to rule and then proceded to render judgment. The appellants contended they were denied the right to have their case argued. In the opinion the court said:
“It is admitted by plaintiffs that no specific request to argue was made, but it is contended there was not even an opportunity to do so with the court announcing its ruling immediately after both sides rested their case, and reliance is had upon Richa v. Wichita Precision Tool Co., 190 Kan. 138, 373 P. 2d 201, dealing with the question of the right of counsel to be heard. We adhere to what was there said and held, but the facts and circumstances of that case distinguish it from the one before us. Here there is nothing in the record to show that permission to argue was refused. When the court announced that it was ready to rule counsel remained silent. Argument was had at the hearing on the motion for a new trial. Our conclusion is that with respect to this point plaintiffs’ contention is without substantial merit and cannot be sustained.” (p. 400.)
In each of the forgoing cases counsel was present in court and knew or had reason to know that his client’s right to have his cause argued was being jeopardized, but made no affirmative effort to argue, to insist upon the right tp argue, or to object.
In the instant case silence by counsel for the appellant out of court for a period of six months, under the circumstances heretofore stated — where the court affirmatively announced the case would stand for argument — does not constitute a waiver of the right to argue.
Our decision is controlled by Richa v. Wichita Precision Tool Co., 190 Kan. 138, 373 P. 2d 201, where many authorities are cited and discussed. There the plaintiffs had requested the trial court to make findings of fact and conclusions of law. The trial court announced that the plaintiffs would be required to submit suggested findings and conclusions and gave the defendant an opportunity to submit them if it cared, and then said oral argument would be permitted, concluding: “At that time we will set up a date and have argument. Is that satisfactory?” (p. 140.) Findings and conclusions were submitted by both parties, and thereafter, without previous notice to counsel, without argument by counsel and without a transcript being prepared, the court announced its findings of fact and conclusions of law. The trial court found generally for the plaintiffs and against the defendant, and in its last conclusion of law stated that the plaintiffs were entitled to judgment against the defendant. The foregoing action on the part of the trial court was held to constitute reversible error.
As in the Richa case, the appellant here raised the question concerning its right to argue the case in its motion for a new trial, in its notice of appeal, and in its specifications of error, thus squarely presenting the question for review.
Our system of jurisprudence is founded on the proposition that every litigant has a right to be heard. The right to be heard carries with it the absolute right to be represented by counsel, and the right of counsel to assist the court by oral argument in analyzing the evidence and in applying the law. The right of a party to have his cause argued by counsel before the decision is rendered is not fulfilled by an offer of the trial judge to permit argument after the decision is rendered. This gratuitous offer by the trial judge was nothing more than an admission that counsel desired oral argument before the decision was rendered, and that counsel had not waived the right to such argument.
Upon the facts presented by the record in the instant case, the appellant was denied the right to argue the merits of this case, and, under the circumstances presented, we hold it did not waive that right by either silence or acquiescence. The trial court should have heard counsel on the issues of fact and law applicable, and erred in failing to do so.
The record presented in this case is such that upon remand a retrial of the evidence would be of little benefit. Most of the evidence is documentary and the testimony of the parties with respect to the transaction is quite complete. The judge of division No. 3 of the district court of Shawnee County is now retired, and the new judge is directed to review the evidence presented by the transcript. The case will then have the status of one which stands ready for argument, and the court should proceed to set the matter for argument and determine the case.
Our decision should not be construed as an approval or disapproval of either the findings of fact and conclusions of law or of the judgment.
The judgment of the lower court is reversed and the case is remanded with directions to proceed as above stated to determine the case.
Price, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from the trial court’s order vacating the verdict and granting the Urban Renewal Agency, the condemner, a new trial.
The facts are briefly summarized: The Urban Renewal Agency commenced this proceeding to condemn land on East Fourth Street in the city of Topeka upon which a two-story brick building, approximately 60 years old, was located. Appraisers were appointed by the court, who made an award to the landowner in the sum of $14,300. The landowner, and the tenant who occupied the first floor of the building, appealed to the trial court where the proceeding was tried to a jury in a single action. Expert witnesses testified for both the condemner and the landowner and the tenant, and the jury returned a verdict that the property had a value of $21,000.
The condemner’s motion for a new trial was timely filed, upon the following statutory grounds:
“1. Because of the abuse of discretion of the court; misconduct of the plaintiffs and their attorneys; accident or surprise which ordinary prudence could not have guarded against.
“2. Erroneous rulings and instructions of the court.
“3. That the verdict or decision is in whole or in part contrary to the evidence.”
When the motion was heard, counsel for the condemner presented authorities and made extensive argument in support of the motion. Greatly summarized, the trial errors alleged and strenuously urged by counsel for the condemner, were (1) the admission of testimony of the landowner s expert witness, Bob Lee, who was permitted to give an opinion of the market value of the land and building based on the income theory, when he had never been inside the building to observe its condition; (2) the testimony of Gene Cain, another expert witness of the landowner, who testified as to the so-called replacement cost of the building, when his knowledge was based solely on a 45-minute view of the building some nine months before the trial and when it was being razed and only the bare four walls were in existence; (3) misconduct of the landowner’s counsel during argument to the jury, and (4) the verdict was not supported by, but was contrary to the evidence.
The extensive argument of counsel has been abstracted and each alleged trial error was strenuously urged by the condemner when the motion for a new trial was heard on October 19, 1962. The court took the motion under advisement, and on October 23, 1962, found and concluded that,
“. . . motion of the defendant to vacate the verdict and grant a new trial should be sustained, as set forth in the memorandum letter of the court.
“It Is Therefore by the Court Ordered, Adjudged and Decreed that the motion of the defendant to vacate the verdict of the jury returned herein on the 9fh day of October, 1962, and to grant a new trial, is hereby sustained, and said verdict is hereby vacated and a new trial is hereby granted.”
Counsel were unable to agree upon the proper language to be used in the journal entry and on December 4,1963, further proceedings were had and the court approved the journal entry prepared by the condemner, a portion of which is quoted above, which was also approved by counsel for both parties.
The appellant landowner contends that the sole question presented is whether the evidence of witness Lee was competent, and if it was, the order granting the new trial was erroneous. We do not agree. The record clearly indicates the trial court granted a new trial gen erally on the motion of the condemner which alleged statutory grounds, and in which counsel urged at least four specific grounds of error which occurred during the trial.
On October 23, 1962, when the court sustained the motion for a new trial generally, it directed a letter to counsel for the parties in which it was stated:
“. . . To strike all of Mr. Lee’s testimony on the ground that it was incompetent in absence of other trial errors, would in my opinion be too drastic, but there were other errors in this case. Reluctantly I reach the conclusion that these errors effected the jury’s verdict.” (Emphasis supplied.)
After receiving the court’s letter of October 23, 1962, counsel for the landowner filed a motion for a rehearing. On November 19, 1962, the court again wrote counsel for the parties overruling the motion to set aside the order granting a new trial in which it was stated:
“The motion for New Trial was given long consideration. 1 concluded that there was sufficient grounds for a New Trial and that justice required it. Arguments presented in the property owners’ brief does not substantially change the picture, in my opinion.” (Emphasis supplied.)
When the additional proceedings were had on December 4, 1962, to determine the proper language in the journal entry, the court again stated reasons for overruling the motion for a new trial. In referring to the testimony of Bob Lee, the court stated:
“. . . I don’t want to limit the granting of a new trial for that one little simple thing. ... in a broader sense 1 have some dissatisfactions with the way that the case was tried all of which are referred to in my letters some or all of which could have influenced the verdict, so I don’t want to say categorically that I am satisfied with the verdict.” (Emphasis supplied.)
Considering the record as abstracted, this court is of the opinion that the language used by the trial court in its journal entry vacating the verdict and granting the condemner a new trial, as well as its letters to counsel for the parties, definitely indicate that the court did not limit the granting of the new trial to a consideration of Lee’s testimony, but that there were other errors in the case; that there were sufficient grounds for a new trial and that justice required it, and that the court was dissatisfied with the verdict and was vacating the verdict and granting the condemner a new trial on the grounds generally urged by the condemner.
With the findings construed as above indicated, this case falls squarely within the rule announced in Nicholas v. Latham, 179 Kan. 348, 295 P. 2d 631, where it was held: “When a verdict rendered by a jury does not meet the approval of the trial court, no duty is more imperative than to set the verdict aside and grant a new trial.” (Syl. ¶ 2.) and in the opinion it was said:
“. . . Having expressed dissatisfaction with the verdict, the trial court could do no other than grant a new trial. The trial court has an important function to perform when the verdict is challenged by a motion for a new trial. On that motion the trial court declared its disapproval of the verdict. From the beginning it has been the rule that if a verdict rendered by a jury does not meet the approval of the trial court, no duty is more imperative than to set the verdict aside and grant a new trial. This rule has been adhered to without variableness or shadow of turning. It is well stated in Bishop v. Huffman, 175 Kan. 270, 274, 275, 262 P. 2d 948, wherein the court said:
“ ‘The result is, that under the confronting facts and circumstances of this case, the propriety of the ruling granting a new trial must be examined in the light of principles to which this court has universally adhered, i. e., that if a trial court is dissatisfied with a verdict it not only has the authority but it is its duty to set such verdict aside (See Schroeder v. Texas Co., 169 Kan. 607, 609, 219 P. 2d 1063, and decisions there cited); that an order of a trial court sustaining a motion for a new trial will not be reversed unless abuse of discretion is apparent (See Bateman v. Roller, 168 Kan. 111, 112, 211 P. 2d 440); and that the granting of a motion of such nature rests so much in the trial court’s sound discretion that its action with respect thereto will not be held to constitute reversible error on appellate review unless the party complaining thereof has clearly established error with respect to some pure, simple, and unmixed question of law (Bateman v. Roller, p. 113, supra; Schroeder v. Texas Co., p. 609, supra)’.” (l. c. 352.)
Other decisions dealing with principles of the law relating to the consideration and disposition of appeals from orders sustaining motions for new trials are Abercrombie v. State Highway Commission, 185 Kan. 47, 340 P. 2d 377; McClay v. Highway Commission, 185 Kan. 271, 341 P. 2d 995, and Crockett v. Missouri Pacific Rld. Co., 188 Kan. 518, 363 P. 2d 536. See, also, Gould v. Robinson, 181 Kan. 66, 69, 309 P. 2d 405.
This court is committed to the general rule that an order of a trial court allowing a motion for a new trial will not be reversed unless this court is satisfied the trial court’s action was wholly unwarranted and clearly amounted to an abuse of discretion. Further, the granting of a motion for a new trial rests so much in the trial court’s sound discretion that its action will not be held to be reversible error on appeal unless it can be said that the party complaining has clearly established error with respect to some pure, simple and unmixed question of law. (Angell v. Hester, 186 Kan. 43, 45, 348 P. 2d 1050.)
We are of the opinion that the appellant landowner has fallen far short of the requirement to show abuse of discretion on the part of the trial court in vacating the jury’s verdict and granting the condemner a new trial, and we are required to affirm that order.
Fontron, J., not participating. | [
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The opinion of the court was delivered hy
Wertz, J.:
Defendant (appellant) Ben E. Ellis was charged, tried and convicted on three counts of an information. Under the first count he was charged with selling mortgaged property in violation of G. S. 1961 Supp., 58-318. Count 2 charged him with obtaining money under false pretenses in violation of G. S. 1949, 21-551. Count 3 charged embezzlement in violation of G. S. 1949, 21-545. The jury found the defendant guilty as charged on all three counts. His motion for a new trial was denied and judgment was rendered on the verdict. From the order overruling his motion for a new trial, defendant appeals.
The facts may be summarized as follows: Defendant, a registered used car dealer in Larned, Kansas, doing business as Larned Motor Company, accepted for sale on April 20, 1962, a 1961 Chevrolet station wagon owned by Donnell and Annabelle Kent of Stafford. Mrs. Kent advised defendant the American State Bank of Great Bend had a mortgage on the station wagon in the amount of $2,500. Defendant and Mrs. Kent signed a written memorandum prepared by defendant relating to his paying the mortgage lien to the bank with the proceeds from the sale of the station wagon. Mrs. Kent left the station wagon with defendant that day and was assured by him that he would take care of the mortgage payments until the car was sold.
On April 26, 1962, Mrs. Kent delivered the certificate of title to defendant, signed in blank at his request. On this same day defendant and Mrs. Kent signed an agreement on a 1958 De Soto, purchased by Mrs. Kent from defendant, which showed an allowance of $400 for her equity in the Chevrolet station wagon. At that time the balance owing on the station wagon to the American State Bank was $2,537.75, and defendant informed Mrs. Kent he believed he had the station wagon sold.
On April 28, 1962, the station wagon was sold to one Eugene Hall by a sales employee of the defendant, with the defendant being present at the time the purchase agreement was prepared. The salesman was unable to locate the certificate of title, and upon inquiry by Mr. Hall as to whether or not he would get clear title, defendant informed him, “It’s all right; we’re going to give you a clear title. It’s had a little bit against it, and we have the title settled and you will get a clear title to the car.”
Relying upon this representation, Mr. Hall issued his check in the amount of $760 and signed a purchase mortgage in the amount of $1,934. On May 1, 1962, Mr. Hall received a certificate of title showing title subject only to the lien of the Larned Motor Company. Mr. Hall’s note and mortgage was assigned by the defendant, sole owner of the Larned Motor Company, to the First State Bank of Osborne, which issued to defendant its cashier’s check in the amount of $1,650 under date of May 2, 1962. Upon receipt of the cashier’s check defendant had received a total of $2,410 in cash for the station wagon, $760 down payment from Mr. Hall and $1,650 from the First State Bank of Osborne, but failed to perform in accordance with the written agreement between himself and Mrs. Kent to pay off the mortgage to the American State Bank of Great Bend. Instead, he purchased a postal money order in the amount of $87.51, the amount of the Kents’ monthly payment on the station wagon, showing Donnell Kent as purchaser and American State Bank as payee, and mailed it to the bank at Great Bend. This same procedure was followed on June 6, July 21, and August 7, 1962, and the money orders were always accompanied by coupons from the coupon book issued with the Kent mortgage loan,, which book Mrs. Kent had delivered to defendant at the same time she delivered the certificate of title to the station wagon.
When the American State Bank did not receive a payment for the month of September 1962, notices were sent to the Kents, and when Mrs. Kent telephoned the bank it was then discovered the station wagon had been sold. The bank then brought a replevin action to recover possession of its security and brought to light defendant’s fraudulent sale of the mortgaged station wagon, his false representation to Mr. Hall to obtain Hall’s money and purchase mortgage, and defendant’s embezzlement and conversion to his own use of the sale proceeds.
Defendant first contends the trial court erred in overruling his motion to quash count 3 of the information on the ground it lacked the necessary accusation of agency and criminal intent. The information was not drawn by a master of the art of good pleading, but since it fully apprised the defendant of the nature of the offense charged against him and contained the necessary element of such offense, the motion to quash was properly overruled. (State v. Combs, 47 Kan. 136, 27 Pac. 818; State v. Patterson, 66 Kan. 447, 71 Pac. 860.)
Defendant further asserts the trial court erred in appointing an attorney to assist the county attorney in the prosecution of the action below. G. S. 1949, 19-717, provides in pertinent part that the prosecuting witness in any criminal action may employ an attorney to assist the county attorney in performing his duties in such action. Section 19-718 provides that in any criminal prosecution in a county having less than ten thousand inhabitants, the prosecuting witness may apply to the court or judge thereof for the appointment of an attorney to assist the county attorney, and the court shall, if it deems proper, appoint a suitable attorney and cause the record of such appointment to be made upon the journal of the court. Section 19-723 provides that when, in the judgment of the board of county commissioners, it becomes necessary or expedient, such board may employ an additional attorney to assist the county attorney in the prosecution of either civil or criminal matters.
The population of the county in which the instant case was tried was less than ten thousand. Outside of the voluntary statement of counsel for defendant there is nothing in the record to indicate that the assistant appointed by the court was not previously employed by the prosecuting witness or appointed by the board of county commissioners.
From a reading of the mentioned statutes it is apparent the legislature, in the public interest of better enforcement of the law, determined not to leave the matter of assistance to the county attorney entirely to the will of the county commissioners or the prosecuting witness and made provision leaving the appointment of counsel in certain cases to the discretion and judgment of the trial judge. (Vernon v. Edwards County Comm'rs., 132 Kan. 119, 294 Pac. 871.) The trial court did not err in this respect.
The gist of defendant’s third contention is that the evidence was insufficient to sustain the conviction on the respective counts. We have reviewed the abstract furnished by defendant in the form of a partial transcript of the evidence, part of which has heretofore been summarized, and find there was ample evidence to sustain the conviction on each of the three respective counts of the information. It is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before a verdict of a jury which has been approved by the trial court may be set aside on appeal on the ground of insufficiency of evidence, it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court. (State v. Ledbetter, 183 Kan. 302, 327 P. 2d 1039; State v. Stout, 175 Kan. 414, 264 P. 2d 1056; State v. Berry, 170 Kan. 174, 223 P. 2d 726.)
Defendant argues the trial court erred in the giving of certain instructions to the jury. In the first place, defendant’s abstract contains only instructions Nos. 2, 6, 7, 8, 11, 12, 16 and 17. It is apparent the Rial court gave more than seventeen instructions covering the issues presented in the case. Where instructions are challenged on the grounds they are not full enough to cover the issues in the case or that they are erroneous, and where a party expects to argue that the trial court erred in this respect, he must bring up all instructions given by the trial court; otherwise, there is no way for this court, on review, to determine what may or may not have been included in those instructions not brought here. It devolves upon the party appealing to bring up a complete record of matters on which review is sought, and it is not incumbent upon the defensive party to supplement the necessary record to sustain appellant’s contention of error. Unless an instruction to which an objection is made is a clear and prejudicial misstatement of the law, it can be reviewed only when other instructions, which may or may not qualify its intent and effect, are made a part of the record in order that all may be examined together. (State v. Leigh, 166 Kan. 104, 109, 199 P. 2d 504; Beye v. Andres, 179 Kan. 502, 504, 296 P. 2d 1049.) We are not in position to pass upon defendant’s criticism pertaining to the court’s instructions, since the abstract contains only eight of the instructions given, and an examination of those failed to disclose any prejudicial misstatement of the law applicable to the case.
Other contentions raised by the defendant have been examined and found to be without merit sufficient to justify reversal of the action, and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by defendants from the trial court’s order of July 20, 1962, overruling their demurrers to plaintiff’s petition, and from that court’s later order dated July 30, 1962, overruling defendants’ motion to strike.
Pertinent portions of the petition alleged that on October 20, 1961, defendants executed a promissory note to plaintiff, as trustee for Robert James Allen, in the amount of $5,133.34 payable at the Traders National Bank, Kansas City, Missouri, and on the same day defendants executed another promissory note in the amount of $2,566.66 to plaintiff as trustee for Ann Allen Dawson.
The two notes were secured by a deed of trust which had been executed on October 20, 1960, and upon default in payment on the notes, the property described therein was sold and the proceeds applied thereto, leaving a balance due of $5,389.67 which with accumulated interest at the time the action was filed totaled $5,532.50, the amount sought herein.
Defendants demurred on the grounds that plaintiff had no legal capacity to sue, that two causes of action were improperly joined because they did not affect all parties, and the facts stated were not sufficient to constitute a cause of action. As previously stated, the demurrers were overruled on July 20, 1962.
Defendants later moved to strike from the petition the claim made as trustee for Robert James Allen, or in the alternative, the claim made as trustee for Ann Allen Dawson because these were separate claims made by separate plaintiffs and separate lawsuits should be brought. On July 30, 1962, the motion to strike was overruled and on August 8, 1962, defendants perfected this appeal based on the questions as to whether it is misjoinder of actions for a trustee of two notes made payable to him in seperate capacities to bring one suit on both notes; whether it is misjoinder of parties for a trustee of two notes made payable to him in separate capacities to bring one suit on both notes; and finally, whether the petition states facts sufficient to constitute two causes of action against the defendants.
Turning first to the question as to the proper parties, pleadings, and procedure necessary to bring an action involving more than one promissory note between the same parties, in Bankers Life Ins. Co. v. Litsey, 176 Kan. 79, 268 P. 2d 934, an action was brought on a total of thirty-four promissory notes between the original parties. In holding that plaintiff’s demurrer to defendant’s answer was correctly overruled, it was stated:
“In an action on thirty-four demand promissory notes between the original parties, it was proper for the defendant to plead in his answer two written contemporaneous contracts between the same parties in which reference was made to the notes and the manner in which the notes should be paid.” (Syl. fl.)
Defendants have called our attention to a number of previous cases written by this court but examination thereof shows the facts constituting the causes of action therein were entirely different from the facts alleged in this petition. Most of them were based on tort liability and not contract liability such as we have here. Others were not predicated on a fiduciary relationship of trustee and cestui que trust. Here plaintiff is trustee of an express trust and as such he holds the legal title while the two parties who are beneficiaries have an equitable interest therein. The appropriate and established rule is to be found in Howell v. Flora, 155 Kan. 640, 127 P. 2d 721, as follows:
“It is the legal title to negotiable paper and not the beneficial interest therein which controls as to the proper parties plaintiff in suits for the collection thereof.” (Syl. f 3.)
Further, G. S. 1949, 60-403 provides that a trustee of an express trust may bring an action without joining with him the persons for whose benefit the action is prosecuted and we, therefore, conclude that plaintiff, as trustee holding the legal title, has a cause of action in his own name against the defendants, makers of the notes in question, and he is a proper party plaintiff. See, also, G. S. 1949, 52-102; 52-501.
The question as to whether the beneficiaries would be proper parties to bring such an action is not presented and we are not here determining that issue.
The Howell case further held:
“Motions to strike and to make definite and certain rest in the sound discretion of the trial court, and from rulings thereon an appeal does not ordinarily lie. Unless it appears the ruling affects a substantial right and in effect determines the action, it is not appealable.” (Syl. ¶ 4.)
In view of the foregoing we are of the opinion the Howell case answers all questions raised by defendants in this appeal and, therefore, the trial court did not err in any of the particulars complained of and relied on by defendants.
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The opinion of the court was delivered by
Jackson, J.:
These two appeals were consolidated after they reached this court. They have to do with a rate proceeding commenced before the State Corporation Commission of Kansas (hereinafter referred to as the Commission) by the Southwestern Bell Telephone Company (hereinafter referred to as the Company). On a petition for review the district court found the Commission’s order unreasonable and unlawful and set it aside. The Commission has appealed. Appeal number 42,348 challenges the propriety of a temporary stay and injunction order. Appeal 42,472 challenges the propriety of the conclusions of the court below on the merits of the case.
In order to insure a proper understanding of all of the issues involved, it will be necessary to refer to the procedural facts in some detail. The general and procedural facts do not appear to be in serious dispute.
The Company is a Missouri corporation, authorized to do business in the state of Kansas. It owns and operates an integrated telephone system within the states of Kansas, Missouri, Arkansas, Oklahoma, Texas, and a portion of Illinois. The portion of its system located in Kansas consists of various facilities and equipment comprising 185 exchanges serving 167 communities, and numerous toll lines furnishing both intrastate and interstate service to the public.
The American Telephone & Telegraph Company owns 99.99 percent of the Company’s outstanding common stock. It also owns all, or a majority, of the voting stock in nineteen other telephone operating companies, and has a minority stock interest in two other telephone utilities, all of which comprise what is known as the Bell System in the United States. It also owns a minority interest in the Bell Telephone Company of Canada. A. T. & T. elects the board of directors of the Company, and, in addition, has one of its own directors on the board of directors of the Company.
A. T. & T. also owns 99.82 percent of the outstanding stock of Western Electric Company, Inc., and 50 percent of the common stock of the Bell Telephone Laboratories, Inc., the other 50 percent being owned by Western Electric Company, Inc.
Western Electric Company, Inc., manufacturers, purchases and distributes most of the apparatus, equipment and supplies required by all of the companies of the Bell System. Bell Telephone Laboratories, Inc., performs research, development and design work for the entire system. It also acts as the purchasing agent for the Bell System.
The Company operates as a subsidiary of A. T. & T. under what is commonly known as a license contract. Under this contract there are basically four types of services performed by A. T. & T. for the applicant: (1) Research in the development of telephonic equipment; (2) Advice and assistance in engineering, traffic, accounting, legal and other matters; (3) Furnish financial advice and assistance; and (4) Royalty free use of equipment covered by patents owned or licensed by A. T. & T. In consideration of these services under the license contracts, each operating company, including this Company, is obligated to pay a fee of one percent on all local and toll service revenues less uncollectibles.
On May 28, 1959, the Company filed an application with the Commission requesting approval of an increase in intrastate telephone rates in Kansas sufficient to produce additional revenue in the amount of $5,800,000. Accordingly, the Commission ordered an investigation pursuant to G. S. 1949, 66-110, et seq.
On May 27,1960, following extensive hearings on the application, the Commission issued an order which was served on the Company June 9, 1960. The order permitted increased rates sufficient to produce additional revenue in the amount of $1,321,437. On June 16, 1960, in accordance with the provisions of G. S. 1949, 66-118b, the Company filed an application for rehearing which the Commission denied on June 27, 1960. Pursuant to the Commission’s order, the Company filed a new schedule of rates designed to produce approximately the additional amount authorized. On July 13, 1960, the Company filed with the District Court of Shawnee County a petition and application for review of the order made by the Commission on May 27,1960.
On August 9, 1960, under the provisions of G. S. 1949, 66-118g, the Company filed an application for a stay of the Commission’s order of May 27, 1960, and for an order enjoining the Commission “from interfering in any way with the Plaintiff in promulgating, charging and collecting fair and reasonable rates and charges for exchange telephone service until such time as the Defendant Commission shall establish lawful and reasonable rates or charges.” On September 15, 1960, the Court issued its order, in conformity with the prayer of the Company’s application, to become effective on the filing of a refunding bond in the amount of $3,000,000. The bond was filed and approved on September 16, 1960. On the same day the Commission filed a motion for a new trial which was overruled September 20, 1960. The Commission then perfected an appeal to this court from the stay order. This appeal, No. 42,348, was held in abeyance pending disposition of the controversy on the merits.
On September 19, 1960, the district court, with the consent of the parties, appointed a referee “to hear and examine the above review proceedings and to make a just and true report therein, according to the best of his understanding.” The referee heard arguments of council, considered the transcript and briefs, and on December 16, 1960, filed his report which included findings of fact and conclusions of law on all issues presented by the petition for review. No written notice was given the parties as to the filing of the report, although it does appear that the filing was orally called to their attention. The referee’s findings and conclusions were not transmitted to the Commission as provided by G. S. 66-118k.
The referee’s report, in the form of an opinion, with findings of fact and conclusions of law, was contrary to those of the Commission on most of the material issues challenged by the Company in its application for review.
On December 20,1960, the Company filed a motion to modify the report of the referee and for judgment. On December 27, 1960, the Commission filed a motion to modify the report of the referee and for judgment. Neither party attacked the referee’s report by a motion for new trial, so designated, but the motion of the Commission to modify the report of the referee and for judgment did allege grounds similar to those ordinarily found in a motion for a new trial.
The district court set the motions for hearing on January 4, 1961. At the hearing, the Company submitted its motion without argument. Counsel for the Commission argued its motion. On the same day the court entered judgment in which it stated that “the court, having examined the record, exercised its independent judgment with respect to the issues presented herein and being fully advised in the premises, finds that” the motions of both parties to modify the report of the referee should be denied. The district court adopted the report, findings of fact, and conclusions of law of the referee, and rendered judgment in favor of the Company.
On January 6,1961, the Commission filed a motion for a new trial which the lower court overruled on the same day. The Commission served and filed its notice of appeal to this court on January 13, 1961. It then filed a four-volume abstract of the record May 12, 1961. Its abstract concluded with extended specifications of error which challenged the findings of fact and conclusions of law adopted by the court below. Thereafter, the Company filed a motion in this court to strike certain specifications of error and the abstract of the evidence filed by the Commission.
In response to the Company’s motion to strike, the Commission raised a factual question as to its notice of the filing of the referee’s report. Numerous affidavits were filed by both parties. This Court then appointed a Commissioner (G. S. 1949, 60-3316) with authority to hold hearings and make recommendations on all issues presented in the proceeding on appeal.
The Commissioner filed an extensive report in the form of an opinion, covering all of the issues before this court. The parties filed supplemental briefs addressed to the Commissioner’s conclusions and recommendations. The case was then argued at some length.
We will first give attention to the Company’s motion to strike certain specifications of error and the abstract of the evidence filed by the Commission in this court. In support of its motion the Company contended that in the absence of a timely motion for a new trial addressed to the findings and conclusions of the referee “the only question now before this court is whether the findings and conclusions of the referee are sufficient, as a matter of law, to support the judgment of the district court.”
At the suggestion of the parties, the Commissioner held a hearing and made an early determination of this question. He filed a report in which he recommended that the motion be overruled. The company has not discussed the matter in its supplemental brief.
The proceeding on application for review of an order of the Commission is not a trial, as that term is used in the code of civil procedure, but is more in the nature of an appellate review made on application rather than trial pleadings. The statute providing for review of the Commission’s orders (G. S. 1949, 66-118c, et seq.) does not provide for reports by referees but requires the district court to transmit three copies of its findings of fact and conclusions of lato to the Commission if it finds the order unreasonable. (Central Kansas Power Co. v. State Corporation Commission, 181 Kan. 817, 831, 316 P. 2d 277.)
A report of a referee in such cases can be nothing more than advisory, and a motion for new trial addressed to the findings of fact and conclusions of law of a referee is not necessary to protect the scope of this court’s review.
The parties are in disagreement as to the jurisdiction, the power, and the restrictions which govern, and must be observed by, the Commission, the district court, and this court in a rate investigation.
It is doubtful if the record in this case discloses disputes of such a nature as to make the question material to the determination of the issues presented. There does not appear to be much dispute as to facts. The dispute is largely over the manner in which the undisputed facts are to be applied. However, we will discuss a few general principles.
The regulation of public utilities, including the fixing of rates, is a legislative function. The legislature has seen fit to delegate its authority, with broad powers, to the State Corporation Commission. (G. S. 1949, 66-101.) The only statutory standard controlling the Commission in fixing rates for public utilities is that the rates must be just and reasonable (G. S. 1949, 66-113), and such standard as may be set forth in G. S. 1949, 66-128, for valuing public utility property.
The broad powers given the Commission by the legislature to regulate public utility rates is subject to constitutional guarantees and prohibitions. The question of possible confiscation of property or the impairment of vested rights presents issues which require the consideration of evidence. The taking of evidence is a responsibility which must be so conducted by the Commission that the decisions reached thereon are subject to complete review by the courts.
The legislature has provided definite procedure for the investigation of rates by the Commission. The statutory provisions relative to the procedure to be followed will be briefly considered. G. S. 1949, 66-111, provides that the Commission may:
“. . . proceed to make such investigation, but no order affecting such rates, joint rates, tolls, charges, rules, regulations, and classifications, schedules, practices or acts complained of shall be made or entered by the commission without a formal public hearing, of which due notice shall be given by the commission to such public utility or common carrier or to such complainant or complainants, if any.”
G. S. 1949, 66-112, provides for the manner of notice, investigation and hearing.
G. S. 1949, 66-113, provides for “orders and decisions” reduced to writing after such hearing and investigation, and for service of copies upon the public utility affected.
Although the statutes of this state may lack fixed standards for determining a reasonable return for the services rendered by a public utility, practice and custom, as approved by the decisions of this court, have established standards which have become a part of the law.
In a seriously contested rate investigation there must be a deter mination of (1) a rate base, (2) a fair rate of return, and (3) reasonable operating expense. In determining these factors, there are numerous elements pertaining to each which must be fairly and reasonably determined if a fair return is to result. Complete findings by the Commission on all essential elements which determine a fair return are required. The courts cannot perform the reviewing functions which the legislature has assigned to them in the absence of adequate findings.
The findings of the Commission must he based upon facts. It must be possible for the reviewing court to measure the findings against the evidence from which they were educed. Findings not based on evidence, but on suspicion and conjecture, are arbitrary and baseless.
We will not extend this opinion by extensive quotations from opinions of other state and federal courts on the subject. Those who wish to research the question further should see Colorado-Wyoming Co. v. Comm'n., 324 U. S. 626, 89 L. Ed. 1235, 65 S. Ct. 850; Panama Refining Co. v. Ryan, 293 U. S. 388, 79 L. Ed. 446, 55 S. Ct. 241; State Corp. Comm’n. of Kans. v. Federal Power Com’n., 206 F. 2d 690; Mississippi River Fuel Corp. v. Federal Power Com’n., 163 F. 2d 433; Company v. State, 95 N. H. 353, 64 A. 2d 9; Commonwealth Tel. Co. v. Public Service Comm., 252 Wis. 481, 32 N. W. 2d 247; New England Tel. & Tel. Co., 115 Vt. 494, 66 A. 2d 135, and A. T. & S. F. Ry. Co. v. Commerce Comm., 397 Ill. 406, 74 N. E. 2d 885.
In the regulation of public utility rates, the legislature has given the Commission power to determine facts and provided specific procedure for review of its orders by the courts.
Under the present statutory procedure, relating to rate regulation by the Commission, the proceeding is tried before the Commission in its entirety. The Commission hears the witnesses and takes all of the evidence. The district court can only review the record as transmitted to it by the Commission. (G. S. 1949, 66-118d.) Under the statutory procedure for review, the review by the district court is solely upon the record made before the Commission and for the purpose of determining whether or not “such order or decision is unlawful or unreasonable.” (G. S. 1949, 66-118d, 66-118f.)
The power of the district court is governed by statute:
“. . . no court of this state shall have the power to set aside, modify or vacate any order or decision o£ the commission, except as herein provided.” (G. S. 1949, 66-118d.)
In Atchison, T. & S. F. Rly. Co. v. State Corp. Comm., 182 Kan. 603, 322 P. 2d 715, the powers and duties of the district court were stated:
“In Union Pac. Rld. Co. v. State Corporation Commission, supra, this court held that the function of a district court in proceedings for review of an order made by the commission is limited to the inquiry whether the order made is lawful or reasonable and that in the exercise of that function the court is required to weigh evidence, review the entire record and base its decision upon all the facts and circumstances contained therein. In doing so it must weigh the evidence solely for the purpose of determining whether such order is reasonable, and only when the district court finds the order of the commission to be unlawful or unreasonable is it authorized to vacate or set aside the order. Upon doing so, however, the district court is obligated under the statute to make findings of fact and conclusions of law. (G. S. 1949, 66-118k.)” (pp. 610, 611.) (See also, Chicago, R. I. & P. Rly. Co. v. State Corporation Commission, 177 Kan. 697, 282 P. 2d 405.)
The end result to be determined by the review of the Commission s order is whether the order is reasonable or unreasonable. However, in making this determination, a detailed examination of the entire record is necessary in order to meet the constitutional guaranties and inhibitions.
The district court must consider the evidence and the law applicable to each element which make up the factors determinative of the end result, i. e., the reasonableness of the order. If the Commission makes a material error, in considering the elements which make up the rate base, the rate of return, the operating expense or the operating income, the error will necessarily be reflected in its conclusion.
The district court in considering the record should not substitute its judgment for that of the Commission if the matter is within the realm of fair debate.
“Where its findings of fact are based upon substantial evidence and the other matters shown by the record with which that tribunal is authorized to deal, a court is not justified in setting its orders aside because the record shows that a different order or decision than the one made by the commission could fairly have been based thereon.” (Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, p. 662, 11 P. 2d 985.)
The Commissions decisions involve the difficult problems of policy, accounting, economics and other special knowledge that go into rate making. It is equipped with a staff of assistants, with experience as statisticians, accountants and engineers. The courts have no comparable suitability for making the determination.
The judicial duty to exercise independent judgment neither requires nor justifies disregard of the presumption of validity which is to be given the Commissions findings. The findings of the Commission, if supported by substantial evidence, should not be disturbed by a reviewing court.
It is the province of the legislature to determine how an appeal may be taken, and to designate the court to which such appeal shall be taken. (City of Hutchinson v. Wagoner, 163 Kan. 735, 186 P. 2d 243.)
The district court in reviewing an order of the Commission acts in an appellate capacity.
This court, on appeal from the district court in such cases, is reviewing the propriety of the decision of an inferior appellate tribunal. The legislature has not defined the limits or responsibility of this court on appeal. However, its responsibility is apparent. It must review the record for the purpose of determining whether the district court observed the requirements and restrictions placed upon it by statute. (Thompson v. Commerce Com., 1 Ill. 2d 350, 115 N. E. 2d 622.)
The statute providing for proceedings on appeal from an order of the Commission is a directive to the district court as to the nature and extent of its review, and on appeal to the Supreme Court it must determine whether the district court has properly determined the matters to which its powers and duties extend. (Birmingham Electric Co. v. Alabama Pub. Serv. Com'n., 254 Ala. 140, 47 So. 2d 455.)
If the findings of the district court are challenged on the basis that it did not give proper consideration to the presumption in favor of the Commission’s findings, or if the district court substitutes its judgment for that of the Commission where the matter is in the realm of fair debate, this court must review the facts for the purpose of determining the issues so presented.
However, this court should not attempt to consider the appeal ele novo and search the record for the purpose of determining the reasonableness of the Commission’s order on the issues not challenged.
“In a case where there has been oral testimony and exhibits, the accuracy of which was questioned, this court has no authority to decide the issues de novo.” (Chicago, R. I. & P. Rly. Co. v. State Corporation Commission, 177 Kan. 697, 704, 282 P. 2d 405.)
This court will consider only the specific issues raised by the specifications of error. The abstract should contain all the evidence essential to such determination, but this court may examine the transcript for the purpose of enlightening itself on any issue In considering the veracity of the Commission’s findings, the presumption as to their validity does not shift as between the first reviewing court (the district court), and this court.
Rate cases usually involve mixed questions of law and fact. If they are to be properly solved by this court on appeal it must frequently look below and beyond the findings of the district court. This rule was even applied when such cases were being tried in the district court de novo. (Railroad Co. v. Utilities Commission, 95 Kan. 604, 622, 148 Pac. 667.)
The dispute over the rate base, particularly the formula by which it is to be determined, presents the chief controversy in this case. This controversy hinges on the interpretation of G. S. 1949, 66-128, which provides:
“Said commission shall have the power and it shall be its duty to ascertain the reasonable value of all property of any common carrier or public utility governed by the provisions of this act used or required to be used in its services to the public within the state of Kansas, whenever it deems the ascertainment of such value necessary in order to enable the commission to fix fair and reasonable rates, joint rates, tolls and charges, and in making such valuations they may avail themselves of any reports, records or other things available to them in the office of any national, state or municipal officer or board.”
It will perhaps be well to consider here tihe different methods of valuing the company’s property which were submitted to the Commission.
Evidence was submitted as to the original cost of the company’s property devoted to intrastate service in Kansas. The total original cost was depreciated by the accrued depreciation reflected by the books of the Company. This computation resulted in a figure of $144,148,582 as the original cost less depreciation. The Commission added to this amount the sum of $1,250,500 for materials and supplies, and arrived at a figure of $145,399,082, which it adopted as the rate base. The figures, insofar as they are arrived at by mathematical calculation, are not subject to dispute.
It will perhaps avoid confusion if we note here that the Commis sion did not include “plant under construction” in the rate base, neither did it include interest on “plant under construction” in income, and no allowance was made for working capital because it was amply covered by accruals of intrastate operating taxes.
The Company introduced evidence of the present fair value of its property devoted to intrastate service in Kansas by two different methods, (1) trended original cost, and (2) cost of reproduction new less depreciation, with adjustments to reflect present fair value.
The trended original cost is determined by trending the original dollar invested to reflect its present value or the result of inflation. The computation is made by applying a predetermined factor, known as “price indices,” to the historical dollars invested which restates them in current value. The company submitted computations based on three different price indices. The distinguishing features of the three will not be considered in detail, but the results as applied to original cost resulted in the following increased figures:
Consumer price index.............................. $198,684,136
Wholesale price index........................ 195,181,790
Gross national products price deflator.................. 200,061,130
These figures do not include anything for going value.
The Commission found this method of determining a rate base unreliable and also found it unreliable for the purpose of determining the present fair value of the property. Other than the general objection to using the present fair value as a rate base it suggested that (1) “there was no direct connection between the wholesale index and the cost of construction of a telephone plant,” (2) “trended original cost through the use of these indicies does not represent changes in price of telephone plant,” and (3) that trended original cost has even less probative value than a reproduction cost study.
The Company also introduced evidence of a reproduction cost study prepared by W. L. Patterson, a senior engineer with Black and Veatch, consulting engineers of Kansas City, Missouri. He described the steps followed in determining the cost of reproduction new less depreciation as follows:
“The first step is to prepare a complete inventory of the items of property of the plant in service. The next step is to determine the cost of reproducing the items of property in the inventory as of the date of the appraisal. These costs are then applied to the inventory items to produce the reproduction cost of the property. The third step is to determine the physical condition of the property by inspection of representative samples of the inventory items. The present condition of the property, after allowance for physical depreciation or deterioration and functional depreciation, is expressed as a percentage of the condition of new property. This is ordinarily referred to as the ‘per cent condition’ of the property. The appropriate per cent condition is then applied to the various classes of property on the inventory and the result produces the reproduction cost less depreciation.”
Certain minor adjustments were then made to reflect other factors affecting value. On the basis of this study it was contended that the present fair value of the Company’s Kansas intrastate properties as of June 30,1959, was in the range of $205,000,000 to $213,000,000. In order to compare these figures with the rate base found by the Commission these would need to be deducted $21,000,000 allowed for going value; $6,380,701 allowed for construction work in progress; $923,604 allowed for working capital, and approximately $1,000,000 because of the use of an end period rather than an average test period rate base.
If these amounts are deducted from the reproduction cost figures, the value would be in the range of $175,500,000 to $183,500,000 as compared to the rate base found by the Commission in the amount of $145,399,082. A large part of the Company’s properties has been constructed during the period of increased prices which is reflected in the book cost.
The Commission was critical of Patterson’s cost of reproduction study. Among other things, it stated in its opinion:
“The staff contends that a rate base founded on the theory of reproduction cost new less depreciation involves speculation, individual judgment, and is conjectural and unrealistic. In view of witness Patterson’s testimony we must agree with this conclusion. Reproduction cost new is based in large part upon the estimates, opinions and observations of individuals and even though expert means are employed there is considerable room for errors in judgment and divergencies in opinion in computing the reproduction cost and observed depreciation of a large and complex utility.
“Witness Duphome admits that the determination of the present condition and obsolescence of the property requires the exercise of judgment. Furthermore, the reproduction theory is predicated upon reproducing the plant in its present form. Witness Duphome admitted that if a plant were being rebuilt today, it would seldom be constructed as it was one year or ten years ago. Such theory tends to disregard eliminations which could be made in a complete reconstruction. In this case the reproduction cost new less depreciation computations assume the price by price reproduction of the applicant’s plant at the substantially higher levels of present-day prices without consideration of the substantial decrease in operating expenses resulting in a greater return. Actually, the applicant would not rebuild its entire plant exactly as it exists today. It would take advantage of various technological advantages and lessons of past experience. Numerous units of property would not be reproduced at all because improvements in production and transmission facilities would dictate the construction of modern units having better and greater efficiency. Such modem developments as microwave installations, could make large parts of the existing plant unnecessary, and where such items would simply be eliminated in an actual reconstruction of the plant, the reproduction cost theory carries them at this repriced cost. We conclude that the testimony introduced concerning reproduction cost is too speculative and conjectural to have probative value for rate fixing purposes. This theory is hypothetical in that it is based upon a condition which could not possibly exist — that is, the construction in a long period at one day’s level of prices of the existing plant of a public utility without regard to its present efficiency.”
The Company contends that G. S. 1949, 66-128, places a positive duty upon the Commission to determine the present fair value of the Company’s property devoted to intrastate service in Kansas and to use such value as a rate base. In support of its contention it relies chiefly on the language used in the Commissioner’s report which was appended to the opinion of this court in the case of State, ex rel., v. Telephone Co., 115 Kan. 236, 223 Pac. 771, decided in 1924. In that case (p. 282) the commissioner states:
“The statute itself settles the question in my opinion. In section 28 of the Public Utilities Act (now G. S. 1949, 66-128), it is provided that ‘said commission shall have the power and it shall be its duty to ascertain the reasonable value of all property of any common carrier or public utility governed by the provisions of this act,’ and so forth.
“This section requires little observation. Certainly, if the legislature contemplated that the original cost basis should be used, it would have been needless to charge upon the commission the duty of ascertaining the reasonable value of the property; instead the legislature would have charged the commission with the ‘duty to ascertain the original cost of all property.’ This the legislature did not do.”
We cannot see the logic in the Commissioner’s statement made in the case. It might as well be said that if the legislature intended that only the present fair value be used, it would have charged the Commission with the “duty to ascertain the present fair value of all property.” This the legislature did not do. It would appear more reasonable to assume that the legislature charged the Commission with the responsibility of ascertaining the reasonable value of all property for rate-making purposes. It was left with the discretion of the Commission as to what method of valuation would be used.
The Company states:
“The court explicitly approved all of the findings and conclusions of Judge McDermott as Commissioner, except for one not at issue here. And the court further approved the report with the statement that it contained ‘much information and reasoning that will be of value in understanding the opinion of the court.’ Clearly then this court’s holding should establish that the statutory language is mandatory in its requirement of reasonable value as a rate base.”
With this statement we do not agree. The court did not adopt the statements of the commissioner as set out in his report. It did not adopt the commissioner’s interpretation of G. S. 1951 Sec. 8356 (now G. S. 1949, 66-128), but rather found that the statute could not be considered because of the interpretation and application of the fourteenth amendment made by the Supreme Court of the United States. This court stated on page 246 of the opinion in State, ex rel., v. Telephone Co., supra:
“That rule was followed in Bluefield Co. v. Pub. Serv. Com., 262 U. S. 679, where that court said:
“ ‘The record clearly shows that the commission, in arriving at its final figure, did not accord proper, if any, weight to the greatly enhanced costs of construction in 1920 over those prevailing about 1915 and before the war, as established by uncontradicted evidence; and the company’s detailed estimated cost of reproduction new, less depreciation, at 1920 prices, appears to have been wholly disregarded. This was erroneous. Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Commission, ante, 276. Plaintiff in error is entitled under the due process clause of the fourteenth amendment to the independent judgment of the court as to both law and facts.” (p. 268.)
“The decisions of the supreme court of the United States with respect to the rules of law involved in deciding whether a rate is confiscatory are of course absolutely controlling upon state tribunals, the question being one of the interpretation and application of the 14th amendment to the federal constitution.”
In 1924, when the decision in State, ex rel., v. Telephone Co., supra was rendered, this court had no occasion to place an interpretation on the language used in G. S. 1949, 66-128, because it was bound by the United States Supreme Court’s interpretation of the due process clause of the fourteenth amendment to the constitution of the United States requiring the use of the present fair value as a public utility’s rate base. Regardless of the interpretation placed on the statute by this court, the interpretation would have been of no effect.
Neither the regulatory authorities nor the courts of this state were in position to give meaning to G. S. 1949, 66-128, because they were bound by the mandate of the Supreme Court of the United States to the use of “present fair value’’ in valuing public utility property for rate making purposes. However, that was changed in 1944. At that time, the Supreme Court of the United States changed its position as to the necessity of the use of “present fair value” as an element of due process and made possible the consideration of applicable state statutes. (Power Comm'n v. Hope Gas Co., 320 U. S. 591, 64 S. Ct. 281, 88 L. Ed. 333.) The case will be discussed later. It should be understood that the Hope case did not change the context or meaning of any existing state laws, but it did permit their application. This is the first time this court has been called upon to construe the language used in G. S. 1949, 66-128, since its interpretation would have any valid effect. The statute was enacted by the legislature in 1911. The question is, what did the legislature intend in 1911, when it charged the Commission with the duty of “ascertaining the reasonable value of all property of a common carrier or public utility” when the Commission deems such ascertainment necessary in order to fix a fair and reasonable rate?
The Company argues that in 1911 when the legislature enacted what is now G. S. 1949, 66-128, it codified existing federal constitutional requirements as to valuing public utility properties. The argument has merit and calls for a consideration of the federal decisions prior to 1911 for the purpose of determining whether definite constitutional requirements had been established. Prior to 1898, public utilities were demanding and receiving a return upon the book value of their properties. At that time there was no supervision over the books and accounts of a public utility. It was common knowledge that the books were adjusted to reflect fictitious values for the purpose of encouraging prospective purchasers of stocks and bonds, and for other advantageous reasons.
In 1898 the Supreme Court of the United States rendered its decision in Smyth v. Ames, 169 U. S. 466, 42 L. Ed. 819, 18 S. Ct. 418. In that case the court stated:
“. . . It cannot, therefore, be admitted that a railroad corporation maintaining a highway under the authority of the State may fix its rates with a view solely to its own interests, and ignore the rights of the public. But the rights of the public would be ignored if rates for the transportation of persons or property on a railroad are exacted without reference to the fair value of the property used for the public or the fair value of the services rendered, but in order simply that the corporation may meet operating expenses, pay the interest on its obligations, and declare a dividend to stockholders.
“If a railroad corporation has bonded its property for an amount that exceeds its fair value, or if its capitalization is largely fictitious, it may not impose upon the public the burden of such increased rates as may be required for the purpose of realizing profits upon such excessive valuation or fictitious capitaliza tion; and the apparent value of the property and franchises used by the corporation, as represented by its stocks, bonds, and obligations, is not alone to be considered when determining the rates that may be considered when determining the rates that may be reasonably charged. . . .” (pp. 544, 545.)
The court stated further:
“We hold, however, that the basis of all calculations as to the reasonableness of rates to be charged by a corporation maintaining a highway under legislative sanction must be the fair value of the property being used by it for the convenience of the public. And, in order to ascertain that value, the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and are to be given such weight as may be just and right in each case. We do not say that there may not be other matters to be regarded in estimating the value of the property. . . . (Emphasis ours.) (pp. 546, 547.)
Although in the Smyth case the Supreme Court of the United States discredited the use of original cost for rate-making purposes because of fictitious capitalization, it did not lay down the rule later announced that only present fair value met federal constitutional requirements. It did in fact state that “the original cost of construction” was a “matter for consideration.”
The Supreme Court of the United States again had occasion to consider the question in 1903 in the case of San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 47 L. Ed. 892, 23 S. Ct. 571. We quote from the case at some length because of its importance here:
“The main object of attack is the valuation of the plant. It no longer is open to dispute that under the Constitution ‘what the company is entitled to demand, in order that it may have just compensation, is a fair return upon the reasonable value of the property at the time it is being used for the public.’ San Diego Land & Town Co. v. National City, 174 U. S. 739, 757, 43 L Ed. 1154, 1161, 19 Sup. Ct. Rep. 804, 811. That is decided, and is decided as against the contention that you are to take the actual cost of the plant, annual depreciation, etc., and to allow fair profit on that footing over and above expenses. We see no reason to doubt that the California statute means the same thing. Yet the only evidence in favor of a higher value in the present case is the original cost of the work, seemingly inflated by improper charges to that account and by injudicious expenditures (being the cost to another company which sold out on foreclosure to the appellant), coupled with a recurrence to testimony as to the rapid depreciation of the pipes. In this way die appellant makes the value over a million dollars. No doubt, cost may be considered, and will have more or less importance according to circumstances. In the present case it is evident, for reasons, some of which will appear in a moment, that it has very little importance indeed.
“The property of the Company and its predecessor consisted, not only of the waterworks, but a large amount of land. On the evidence the waterworks may be estimated at about a quarter of the total value. The earlier Company was unable to raise the money needed. Its bonds for $500,000, secured by mortgage, were not worth more than 95, and an attempt to raise a further loan on mortgage failed. The whole amount that the market and interested stockholders were willing to lend on all. the security it could offer was $650,500. The Company was put into the hands of a receiver, who issued some certificates, which, we infer, were made a paramount lien. Then, by arrangement with the stockholders who were willing to go on, the mortgage was foreclosed and all the property was sold to those stockholders for the nominal sum of $889,-163.33, which was equal to the amount of outstanding certificates and bonds, and was paid by turning them in. This was in 1897 a few months before the passage of the ordinance complained of. The purchasers organized the present corporation, and the above-mentioned sum is the cost of the land and waterworks to it. The appellant protests that this is not a fair value for the property of the company. We doubt whether it is not a liberal allowance. The officers of the two companies at the time thought that they got more than they could have got in any other way. But at all events, it is decided that the price is evidence, we might say more important evidence than the original cost . . .” (pp. 442, 443.)
It is apparent that the court in the San Diego Land case discarded original cost because it was “seemingly inflated by improper charges to that account and injudicious charges to expenditures.” It did not require a determination of present fair value, but used the cost to the present owners, which, it stated, was a “nominal sum.”
The Company next calls our attention to the case of Willcox v. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192, decided in 1909. In that case the court stated:
“And we concur with the court below in holding that the value of the property is to be determined as of the time when the inquiry is made regarding the rates. If the property which legally enters into the consideration of the question of rates has increased in value since it was acquired, the company is entitled to the benefit of such increase. This is, at any rate, the general rule. We do not say there may not possibly be an execption to it where the property may have increased so enormously in value as to render a rate permitting a reasonable return upon such increased value unjust to the public. How such facts should be treated is not a question now before us, as this case does not present it. We refer to the matter only for the purpose of stating that the decision herein does not prevent an inquiry into the question when, if ever, it should be necessarily presented.” (Emphasis ours.) (p. 52.)
This case does not indicate an intention to declare present fair value as the only rate base that would meet the constitutional requirement of due process. That rule was made definite later. There were no decisions prior to 1911 that would lead the Kansas legis lature to believe that present fair value was the only factor that could be considered in arriving at a rate base.
We do not believe it was the intention of the legislature to restrict the use of but one factor, present fair value, in determining a rate base. Later the Supreme Court of the United States did indicate that present fair value was the only factor compatible with the requirements of the fourteenth amendment to the Constitution of the United States. In the Minesota Rate Cases, decided in 1913 (Simpson v. Shepard, 230 U. S. 352, 57 L. Ed. 1511, 33 S. Ct. 729), it was stated by the Supreme Court:
“. . . As the company may not be protected in its actual investment, if value of its property be plainly less, so the making of a just return for the use of the property involves the recognition of its fair value if it be more than its cost. The property is held in private ownership, and it is that property, and not the original cost of it, of which the owner may not be deprived without due process of law . . .” (p. 454.)
In Bluefield Co. v. Pub. Serv. Comm., 262 U. S. 679, 67 L. Ed. 1176, 43 S. Ct. 675, decided in 1923, the Supreme Court quoted with approval the statement made in the Minnesota Rate Cases and stressed the principle there announced.
The law thus remained until 1944 when the Supreme Court handed down its decision in Power Comm'n v. Hope Gas Co., 320 U. S. 591, 88 L. Ed. 333, 64 S. Ct. 281. A few quotations from the opinion in that case may be helpful here:
“Tire Commission established an interstate rate base of $33,712,526 which, it found, represented the ‘actual legitimate cost’ of the company’s interstate property less depletion and depreciation and plus unoperated acreage, working capital and future net capital additions . . . (p. 596.)
“Hope introduced evidence from which it estimated reproduction cost of the property at $97,000,000. It also presented a so-called trended ‘original cost’ estimate which exceeded $105,000,000. The latter was designed to ‘indicate what the original cost of the property would have been if 1938 material and labor prices had prevailed throughout the whole period of the piecemeal construction of the company’s property since 1898.’ 44 P. U. R. (N. S.) pp. 8, 9. Hope estimated by the ‘per cent condition’ method accrued depreciation as about 35% of reproduction cost new. On that basis Hope contended for a rate base of $66,000,000. The Commission refused to place any reliance on reproduction cost new, saying that it was ‘not predicated upon facts’ and was ‘too conjectural and illusory to be given any weight in these proceedings.’ Id., p. 8. It likewise refused to give any ‘probative value’ to trended ‘original cost’ since it was ‘not founded in fact’ but was ‘basically erroneous’ and produced ‘irrational results.’ Id., p. 9 . . .” (pp. 596-597.)
“The Circuit Court of Appeals set aside the order of the Commission for the following reasons. (1) It held that the rate base should reflect the ‘present fair value’ of the property, that the Commission in determining the ‘value’ should have considered reproduction cost and trended original cost, and that ‘actual legitimate cost’ (prudent investment) was not the proper measure of ‘fair value’ where price levels had changed since the investment. (2) It concluded that the well-drilling costs and overhead items in the amount of some $17,000,000 should have been included in the rate base. (3) It held that accrued depletion and depreciation and the annual allowance for that expense should be computed on the basis of ‘present fair value’ of the property, not on the basis of ‘actual legitimate cost.’ ” (pp. 599-600.)
“. . . The heart of the matter is that rates cannot he made to depend upon ‘fair value’ when the value of the going enterprise depends on earnings under whatever rates may be anticipated.
“We held in Federal Power Commission v. Natural Gas Pipeline Co., [315 U. S. 575, 86 L. Ed. 1037, 62 S. Ct. 736], supra, that the Commission was not bound to the use of any single formula or combination of formulae in determining rates. Its rate-making function, moreover, involves the making of ‘pragmatic adjustments.’ Id., [315 U. S. 575, 586, 86 L. Ed. 1037, 62 S. Ct. 736]. And when die Commission’s order is challenged in the courts, the question is whether that order ‘viewed in its entirety’ meets the requirements of the Act. Id. p. 586. Under the statutory standard of ‘just and reasonable’ it is the result reached not the method employed which is controlling . . .” (pp. 601-602.)
“. . . Moreover, this Court recognized in Lindheimer v. Illinois Bell Tel. Co., [292 U. S. 151, 78 L. Ed. 1182, 54 S. Ct. 658], supra, the propriety of basing annual depreciation on cost. By such a procedure the utility is made whole and the integrity of its investment maintained. No more is required. . . .” (p. 606.)
The parties have cited many cases from other states in support of their contentions as to how the phrase “reasonable value,” as used in G. S. 1949, 66-128, should be interpreted. The decisions are not of much assistance at this point. Numerous and varied interpretations are placed on the words “fair value” and “reasonable value.” There is little similarity in the language used in the statutes of the various states. The state of Mississippi appears to have had a statute most similar to that of Kansas. The statute provided in part:
“Rates prescribed by the Commission shall be such as to yield a fair return to the utility furnishing service upon the reasonable value of the property of the utility used or useful in furnishing service.” (Code of 1942 Recompiled Sec. 7716-08.)
The Supreme Court of Mississippi in Sou. Bell v. Public Ser. Comm., 237 Miss. 157, 113 So. 2d 622, considered the statute and stated:
“In our opinion those contentions (relating to the adoption of fair value) are without merit. Our statute does not bind the commission to the use of any particular formula in determining the reasonable value of the property of a public utility for rate making purposes. Our statute merely provides that the rates prescribed shall be such as to yield a fair rate of return upon the reasonable value of the property used and useful in furnishing service, and that the commission, in arriving at such rate base ‘shall give due consideration to all elements that are generally considered in determining the rate base for rate making purposes.’ There are a number of formulas which are useful in the determination of the reasonable value of a utility’s property for rate making purposes. No public utility has a vested right to any particular method of valuation. City of Fort Smith v. Southwestern Bell Telephone Company (1952), 220 Ark. 70, 94 PUR (NS) 214, 247 S. W. 2d 474.”
The foregoing Mississippi decision was quoted with approval as recently as February 20, 1961, in U. Gas Corp. v. Miss. Pub. Serv. Comm., 240 Miss. 405, 127 So. 2d 404. The Court said in considering an amended statute:
‘‘The leading case in this state on utility rate regulation is Southern Bell Telephone and Telegraph Co. v. Mississippi Public Service Commission, 237 Miss. 157, 113 So. 2d 622 (1959) (sometimes called the Mississippi Southern Bell case. It was there held that the Mississippi statutes do not bind the Commission to the use of any particular formula in determining the reasonable value of the property of a public utility for rate making purposes. There are a number of useful formulae, including depreciated original cost, sometimes known as net investment, or original cost less depreciation; reproduction cost of the property less depreciation; depreciated prudent investment; trended original cost less depreciation; and others. The statute simply provides that the rate prescribed shall be such as to yield a fair rate of return upon the reasonable value of the property used and useful in furnishing service. The 1956 Act does not impose upon the Commission requirement that the so-called fair value formula of Smyth v. Ames, 169 U. S. 466, 18 S. Ct. 418, 42 L. Ed. 819, (1898) with it emphasis upon reproduction cost new, should be adopted as the measure of the rate base. Evidence of reproduction cost new less depreciation is admissible in hearing on a rate case, but its probative value is primarily to be determined by the Commission. It is not required to accept this opinion evidence with appraisal, but can weight and evaluate it.
“In the Mississippi Southern Bell Case the Commission admitted opinion evidence on reproduction cost new, but after considering it, concluded the evidence was conjectural, speculative, unrealistic and unreliable. Hence the agency rejected that evidence, and fixed that rate base on original cost less depreciation. That action was affirmed by this court.” (pp. 419-420.)
Under the broad powers which the legislature has vested in the Commission it must be concluded that the Kansas legislature did not intend to restrict the Commission as to the formula to be used in arriving at the reasonable value of a public utility’s property for rate-making purposes. “Reasonable value” as used in G. S. 1949, 66-128 is the reasonable value of the public utility’s property as that term is understood for the purpose of determining a fair and reasonable return.
The Company relies on five cases from five different states to support its contention. This court has carefully considered the cases. There is little similarity in the language used in the statutes of the various states. We will, for the purpose of brevity, confine our presentation to the general conclusions reached in the opinions.
In State v. Public Service Commission, Mo., 308 S. W. 2d 704, it is stated:
“This does not mean that such value must be based primarily upon either original cost or reproduction cost less depreciation. It was aptly said in Railroad Commission v. Houston Natural Gas Corp., Tex. Sup., 289 S. W. 2d 559, 572; ‘[T]he original cost test deprives the equity ownership of any chance to fluctuate with changing economic conditions and makes it in fact very like a fixed indebtedness instead of an equity ownership. On the other hand, the test of reproduction cost new adjusted to actual age and condition during inflationary periods could be too large a burden on the public and during deflationary periods unfair to utility investors. So the burden of the cases is that the solution falls as a matter of judgment somewhere between these two brackets. This allows utility property to fluctuate in value but tends to even out the curve and flatten the extremes of economic cycles.’
“Thus it is that the courts do not and should not circumscribe regulatory agencies by any hard or fast formula. Each case must be determined upon its own facts and, oftentimes, varying factors that may be peculiarly relevant to a reasoned determination of the issue of ‘just and reasonable’ rates under conditions then existing. It follows as a matter of course that neither the rate base nor the return to the company is to be fixed by ‘rule of thumb’ or in the interest of expediency.’’ (p. 718.)
In State v. Public Service Comm., 131 Mont. 272, 309 P. 2d 1035, it is stated:
“The language of the statute is clear that the Commission shall determine ‘the value of the property of every public utility actually used and useful for the convenience of the public.’ This court has previously determined that this means the present fair value of the utility’s property. Tobacco River Power Co. v. Public Service Comm., 109 Mont. 521, 98 Pac. (2d) 886. Neither the Public Service Commission nor the utility company is limited to nor bound by any particular method in arriving at the solution of the question of value. Tobacco River Power Co. case, supra.
“The cost of reproduction new, less depreciation, is usually regarded as one of the most important, if not the dominant, factor, in the determination of value. 51 C. J. 17. Under the section of the Montana Code just cited, assessment rolls are likewise admissible as evidence of value, but of course are not exclusive. . . . Original cost, assessment values, cost of reproduction new, prudent investment theory, public records mentioned in section 3884 [Revised Codes of 1935, now R. C. M. 1947, § 70-106], supra, and opinions of value, are all means to an end, namely the determination of value. We can find no error in the procedure of the court in allowing evidence of cost of reproduction new, less depreciation, to be admitted as evidence of value.’ Tobacco River Power Co. v. Public Service Comm., 109 Mont. 521, 529, 530, 98 Pac. (2d) 886, 890, supra.” (pp. 276, 277.)
In Pittsburgh et al., Aplnts., v. PA. P. U. C., 158 Pa. Super Ct. 229, 44 A. 2d 614, it is stated:
“. . . Any construction of that Act of Congress has no application to the language of our Public Utility Law or its binding effect upon us. We have adhered to the view that when the legislature wrote fair value into the Public Utility Law it adopted the then settled construction of the appellate courts of this State and intended the same meaning of fair value as under the prior Public Service Act. Statutory Construction Act of May 28, 1937, P. L. 1019, 46 PS 552. Decisions of the Supreme Court of the United States, in other cases, accepting standards other than fair value in the sense of our statute, do not change the present law of this Commonwealth; that remains a question for the legislature, so long as our views are unmodified by a court of higher authority.” (p. 236.)
In Northern States Power Co. v. Public Serv. Comm., 73 N. D. 211, 13 N. W. 2d 779, it is stated:
“In the former appeal in this case [Northern States Power Co. v. Board of Railroad Com’rs., 71 N. D. 1, 298 N. W. 423] we held that the fair value formula as set forth in Smyth v. Ames, 169 US 466, 42 L Ed 819, 18 S Ct 418, and as modified by subsequent decisions of the Supreme Court of the United States had been adopted by the Legislature of this State in 1919 as the formula for determining rate bases for public utilities. There can be no doubt today, but that, insofar as the federal courts are concerned, the ‘ghost of Smyth v. Ames had been laid.’ Federal Power Commission v. Natural Gas Pipeline Co., 315 U. S. 575, 86 L. Ed. 1037, 62 S. Ct. 736; Federal Power Commission v. Hope Natural Gas Co., 320 U. S. 591, 88 L. Ed. 333, 64 S. Ct. 281. That circumstance, however, has no bearing upon the question before us now. We are concerned with the law of this State as enacted in 1919. In the decision in the former appeal in this case we gave extended consideration to the construction of this statute and we see no reason now to modify that construction.
“. . . A finding of value cannot be reached merely by the solution of an algebraic equation which is universal in its application. It is not fanciful to say that in many instances actual value may properly be found at levels which are below both reproduction cost depreciated and historical cost depreciated. This is particularly true where depreciation is based solely upon physical deterioration and in a field in which technical advances are being made with such rapidity that the toll taken by obsolescence far exceeds that taken by actual physical depreciation. We do not, however, suggest that this situation exists in the present case. Historical cost and reproduction cost are both major factors but the weight which shall he given to each in the fair value formula can only be determined by judgment exercised in the light of the circumstances in which they rest. That is the judgment which the Commission exercised in this case.” (Emphasis ours.) (pp. 225, 226.)
In Matter of New York Tel. Co. v. Public Serv. Comm., 309 N. Y. 569, 132 N. E. 2d 847, it is stated:
“The concept of value, of course, is quite different from that of cost, and the expression ‘actually used’ connotes a present use. Thus the commission is required to receive proof of reproduction cost less depreciation as some evidence of present value in the case of utility property which, due to the unique restrictions placed upon it by law, cannot readily be valued by other usual methods, such as so-called ‘market,’ ‘sales’ or ‘exchange’ value.
“This is not to say that the rates must be based upon reproduction cost less depreciation. As the commission itself states, it is under no statutory or other obligation to confine itself to consideration of any particular one of the various alternative rate bases. All that the statute says is that the commission shall ‘determine the just and reasonable rates’ with ‘due regard, among other things, to a reasonable average return upon the value of the property actually used in the public service.’ ‘Due regard’ to one factor ‘among other things’ requires consideration of that factor. It is by no means controlling. While price indices rise in some periods, in others the general level of prices declines. What consideration is to be given to ‘value’ ‘among other things’ is for the commission to decide, having in mind that the overriding principle governing its primary duty is that it shall determine ‘just and reasonable rates’.” (Emphasis ours.) (pp. 578, 579.)
The statements in the above cases do not appear to be in serious conflict with what has heretofore been said nor that which follows.
The following cases reflect the proper approach in determining the reasonable value of a public utility’s property for rate-making purposes:
“The fair value of the property upon which a utility in this Commonwealth is entitled to receive a fair return is the value existing at the time the rates are established or at the time the value is in issue. Citizens Water Company v. Pennsylvania Public Utility Commission, 181 Pa. Superior Ct., 301, 306, 124 A. 2d 123. Fair value for rate-making purposes, however, is not the literal present fair value for any particular purpose, but it is the fair value of the property as that term is understood for rate-making purposes; in this respect fair value has a connotation peculiar to rate proceedings. There is no particular formula by which the Commission is bound in fixing the rate base; all facts which have a relevant bearing on fair value, as that term is used in rate proceedings, should be considered.” (Pittsburgh, Aplnt. v. Pa. P. U. C. (et al., Aplnt.) 187 Pa. Superior Ct. 341, 144 A. 2d 648.)
With regard to the question of the weight to be attached to reproduction cost new, we think that little need be added to what was said in the Chesapeake & Potomac Telephone case and in the Consolidated Gas Electric Light & Power Co. case, both above cited. The Commission is not tied to any one formula in ascertaining fair value; reproduction cost new, less depreciation, is one of the factors traditionally taken into consideration, hut it is not necessarily controlling. Its weaknesses have been pointed out in many cases, but on this subject we need to no more than refer to the two recent decisions of this Court cited above.” (Hagerstown v. Public Serv. Comm., 217 Md. 101, 141 A. 2d 699.)
“The Board is not bound to any particular formula or combination of formulae in determining the fair value of the Company’s property. State v. N. J. Bell Tel. Co. supra, 30 N. J. at page 29 (152 A. 2d at page 42). That determination must, however, be bottomed upon substantial, competent, relevant evidence. Reproduction cost is one guide to fair value, but not a measure. New Jersey Bell Telephone Co. v. Department of Public Utility Com’rs., supra, 12 N. J. at page 586, (97 A. 2d at page 611). There is little to recommend the use of depreciated cost reproduction figures for items that no one would want to reproduce as a basis for the Company’s rate base. However, the Board may, but it is not bound to, ‘adhere to a net investment formula, which has been the dominant yardstick in New Jersey State v. N. J. Bell Tel. Co., supra, 30 N. J. at page 30, (152 A. 2d at page 43). The board’s determination on the fair value of the Company’s assets and its decision on the non-applicability of the depreciated reproduction cost rate base, if properly founded in the evidence, is beyond judicial inference.” (Revision in Rates filed by In re Plainfield — Union Water Co., 57 N. J. Super. 158, p. 176, 154 A. 2d 201.)
“From all of the cases and authorities which we have studied, we reach the conclusion that no public utility has a vested right to any particular method of valuation. The aim of a regulatory body is to determine a fair valuation; and the method of calculation may vary as between the type of the utility involved and the economic conditions existing.” (City of Fort Smith v. Southwestern Bell Telephone Company, 220 Ark. 70, 84, 247 S. W. 2d 474.)
The Commission states in its opinion:
“The rate of return to be applied to the rate base will be in keeping with the rate base determined to insure that the result is just and reasonable. The element of inflation, of course, is taken into consideration in the determination of the cost of the capital required in order to finance a construction program of the Applicant. Witness Waters noted that this type of rate base is in accord with general accounting procedures. The Applicant presented testimony of great length concerning the presence of inflation. This Commission is aware of the fact that inflation exists but it has had little effect upon the present surviving dollars invested in plant in service dedicated to the public use. Some $138,066,445 of dollars were invested subsequent to 1946. This represents a total of 62.04 per cent invested since the last general rate case and 83.73 per cent of the present capital investment as of December 31, 1958, was made subsequent to World War II. The factor of inflation is taken into consideration in the determination of cost of capital and a fair rate of return.”
The major portion of the Company’s plant was constructed during the period of inflated prices. Of the 16.5 per cent constructed prior to 1940, $12,213,642 constituted construction during or prior to 1929. It is during this period of construction that the added cost of re construction would have the greatest impact. The Commission’s suggestion is quite applicable:
“Actually, the Applicant would not rebuild its entire plant exactly as it exists today. It would take advantage of various technological advantages and the lessons of past experience. Numerous units of property would not be reproduced at all because improvements in production and transmission facilities would dictate the construction of modem units having better and greater effioiency.”
The Commission did not ignore the evidence submitted as to the cost of reproduction. It gave many reasons why it did not find the cost of reproduction as suitable a measure of reasonable value as actual cost under the circumstances in this case. The courts should not substitute their judgment for that of the Commission where the matter is in the realm of fair debate.
After a study of the authorities since the decision in the Hope case supra (1944) and a complete review of the record in this case, it is concluded in connection with the rate base:
Reasonable value for rate-making purposes is not tibe literal present fair value for each and every purpose, but is the reasonable value as that term is understood for the purpose of determining a fair and reasonable return. In this respect, tibe term “reasonable value” as used in G. S. 1949, 66-128, has a connotation peculiar to rate proceedings.
A public utility has no vested right to any particular formula or method of valuation. Neither is the Commission bound to any particular formula or combination of formulae in determining the reasonable value of a company’s property. The Commission should receive and consider all evidence which has a relevant bearing on reasonable value of a company’s property. The Commission should be used under the facts and circumstances in the case. If the Commission finds that a rate base founded upon depreciated reproduction cost is not applicable or contains weaknesses and the finding is based upon substantial evidence, it should be free from judicial interference.
The district court erroneously concluded that the Commission was required by law to determine a rate base by the use of estimated reproduction cost new less depreciation or some related formulae, and erroneously concluded that the use of a rate base established by original cost less depreciation rendered the order void as a matter of law.
The Commission made no allowance in the rate base for going concern value. The reviewing court found as a fact:
“Going concern value is an element of value which should be given consideration and some weight in establishing reasonable or fair value of a utility’s property for rate-making purposes.”
Going concern value is a proper element to be considered in determining a rate base if the constituting elements are present and the expense has not been recouped. The Company contends for a going concern value of $21,000,000 for business development costs. There was a time when an allowance of 10% on the physical plant was not challenged as a reasonable allowance for this item. The conditions which justified the allowance, as a matter of course, no longer exist. Years ago the cost of acquiring customers and developing business presented a serious problem for public utilities. The consumer was not informed as to the advantages of gas as a fuel compared to coal, he was not informed as to the advantage of electric lights compared to a Coleman lamp, and he was not informed as to the advantage of a telephone call, as compared to a communication transferred by the then means of transportation. No doubt a utility, under those conditions, incurred considerable cost in educating the public, soliciting customers, and idle plant following construction. Under present conditions, a new home is not built, nor a new area developed, unless the owner knows that electricity, gas, and telephone service are available. The utility need not solicit customers. The public is clamoring for service. The utility needs only connect.
If a public utility establishes, by appropriate evidence, that it has suffered loss by reason of cost or lag in developing business, and the loss has not been included elsewhere in the valuation or recouped from prior earnings, it is a matter to be considered by the Commission. A careful review of the record discloses no evidence justifying an allowance for going concern value in this case, nor any reason for it being made an issue in the finding of the reviewing court. This rule appears to be in harmony with that stated in the more recent decisions.
“It is the recognized rule in this State that an allowance may be made for value as a going concern in determining the rate base, if there is sufficient evidence to determine its amount, and if it has not been included elsewhere in the valuation of the property, and if it has not been recouped from the prior earnings of the business.” (Public Service Coordinated Transport v. State, 5 N. J. 196, 220, 74 A 2d 580.)
“The Company complains of the refusal of the Commission to allow its claim for ‘going concern value.’ This claim was presented for consideration at the hearing. It was not allowed and is not discussed in the report.
“By ‘going value’ or ‘going concern value’ is meant a value or asset which arises from having an established or going business.
“In rate-making cases, the paramount question is whether the rates fixed will result in the confiscation of the public utility’s property, and whether going concern value should be regarded as a distinct element of value in fixing rates depends upon circumstances. In our opinion this is not a case where going value should be allowed. (Southern Bell Tel., Etc., Co. v. Louisiana Pub. Serv. Com’n., 187 La. 137, 183, 174 So. 180.)
“The testimony of the company’s engineers was based wholly on theoretical lag and was therefore insufficient to support its claim: Scranton-Spring Brook W. S. Co. v. P. S. C., supra. (119 Pa. Super. at page 139, 181 A. 77.) A claim on this account, when allowed, must be supported by evidence of actual lag, not necessarily from the books of the company: Cheltenham & Abington S. Co. v. P. S. C., supra. (122 Pa. Super. at page 266, 186 A. 149.) The experts, in place of considering the history of the respondent, relied upon the fact that in many rate cases an allowance of ten per cent of present value was made. They failed to show that they had taken into account or considered the extent to which incoming revenues kept pace with investment. It was not shown that either the original installation or any extensions were made in advance of the demand for service, while there was some evidence that the public were asking for service in advance of the time at which it was supplied. The result is that the testimony is placed upon a purely theoretical basis and does not disclose either a sufficient history to determine whether any allowance should be made or that the experts considered such actual facts and took them into consideration in stating their conclusions.” (Solar Electric Co., Appel. v. P. U. C., 9 A. 2d 447, 137 Pa. Superior Ct. 325, 362, 363.)
An interesting, but in this case immaterial, controversy is presented as to the inclusion in the rate base the cost of a plant purchased by the Company where the purchase price exceeded the original cost of the plant less depreciation.
During the test period, the Company acquired certain telephone exchange property. The purchase price exceeded the original cost less depreciation by $61,000. The Commission disallowed the amount in its calculation of the rate base. The $61,000 would appear to be a proper allowance as found by the district court.
Where the reasonableness of the purchase price is not questioned by the Commission, it should be included in the rate base as the original cost of the Company’s property. It should be understood, however, that where there is a material difference between the cost to the seller and the purchase price paid, the Commission may consider the prudence of the purchase and govern its allowance accordingly. This is particularly true where there are indications of an affili ated relationship. The principle involved may be material but the amount involved here, when compared with the total valuation, is not and the dispute will be given no consideration in calculations as to reasonableness of the Commission’s order.
The determination of what constitutes fair and reasonable earnings requires a determination of the revenues and expenses the Company can expect to experience in the future. In this case the parties adopted a twelve months test period ending June 30, 1959. Issues are presented as to whether certain expense items presented by the Company should be recognized for rate-making purposes and whether others should be adjusted.
The allowance for expenses must be determined and deducted from gross earnings for the purpose of determining the amount available as a return to the investors. The Company made certain adjustments in its recorded operations and arrived at a net operating income of $8,674,543. The Commission made certain adjustments in the Company’s recorded operations and arrived at a net operating income of $8,966,057.
The Company contends that it should be allowed operating expense not reflected by its recorded operations, and that the adjustments made by the Commission were improper. These disputed expense items will next be considered.
Current depreciation cost is one of the larger items of expense involved in this controversy. It approximates $8,000,000. The rates of depreciation to be applied to the properties are not in dispute. They are in conformity with the Uniform System of Account established by the Federal Communications Commission and adopted by the Commission.
The controversy arises over whether the rate of depreciation should be applied to the original cost of the properties, as was done by the Commission, or whether it should be applied to the present value of the properties as contended for by the Company. The court below found that, “the Commission’s failure to consider current cost depreciation was erroneous.”
The calculation of cost depreciation on the original cost of the properties rather than on the present value makes a difference of approximately $2,000,000. The amount allowed by the Commission is a deductible expense. The additional $2,000,000 contended for by the Company is not a deductible item. If this amount is allowed, an additional amount of approximately $2,300,000 must be allowed for state and federal income tax.
Depreciation expense is defined in the Uniform System of Accounts as follows:
“Depreciation, as applied to depreciable telephone plant, means loss in service value not restored by current maintenance incurred in connection with the consumption or prospective retirement of telephone plant in the course of service from causes which are known to be in current operation, against which the Company is not protected by insurance, and the effect of which can be forecast with a reasonable approach to accuracy. Among the causes to be given consideration are wear and tear, decay, action of the elements, inadequacy, obsolescence, change in the art, changes in demand and requirements of public authorities.”
The Commission contends that the purpose of depreciation allowance is to return to the investors the cost of the plant or the dollars invested. It is not intended to provide a surplus for replacing the original assets upon their retirement. The Commission next contends that the purpose is accomplished when the agreed rates of depreciation are applied to the original cost.
The Company meets the issue squarely by stating in its brief:
“Let the Company’s position be entirely clear: the Company seeks only to recover through depreciation the value of the plant consumed in furnishing its service today in order that the integrity of the plant, i. e., its value, is preserved. It cannot do so by basing its depreciation expense on plant investment made at pre-inflation price levels.”
Again the Company relies on the Commissioner’s report appended to the opinion in the case of State, ex rel., v. Telephone Co., supra, where it was stated:
“. . . If the law is that a return should be figured upon the value of the property rather than upon the original investment in the property, it must be that the depreciation charge should be similarly figured.” (p. 292.)
The statement is of no value in the determination of this controversy because the present law does not require that the return be figured upon the present fair value of the utility’s property. It is also doubtful if depreciation and the rate base, to which the rate of return is to be applied, are necessarily as closely related as the statement quoted indicates.
It would serve no useful purpose to review the limited number of decisions from other states and their divergent views on the question. The purpose of annual depreciation is to return to the investors the amount of their investment in the original plant. It is not intended to return to the investors the cost of reproducing a new plant when the old plant has deteriorated. If the construction of a new plant requires additional capital, a fair rate of return will be allowed on such additional cost.
In State ex rel. Utilities Commission v. State et al., 239 N. C. 333, 80 S. E. 2d 133, it was stated:
“For rate-making purposes a public utility is allowed to deduct annually as an operating expense so much of its capital investment as is actually consumed during the current year in rendering the service required of it. But the cost represents the amount of the investment, and it is the actual cost, not theretofore recouped by depreciation deductions, that must constitute the base for this allowance.
“Broadly speaking, depreciation is the loss not restored by current maintenance which is due to all the factors causing the ultimate retirement of the property. ‘While property remains in tire plant, the estimated depreciation rate is applied to the book cost and the resulting amounts are charged currently as expenses of operation.' Lindheimer v. Illinois Bell Telph. Co., 292 U. S. 151, (54 S. Ct. 658, 665), 78 L. Ed. 1182; Water Co. v. Alexandria, 163 Va. 512, 177 S. E. 454; Federal Power Com. v. Hope Nat. Gas Co., 320 U. S. 591, 64 S. Ct. 281, 88 L. Ed. 333.
“ ‘An annual depreciation allowance cannot logically or consistently be based upon fair value and reproduction cost, but rather the basis for computation should be upon the book cost of depreciable and depletable property.' Equitable Gas Co. v. Public Utility Com’n., 160 Pa. Super. 458, 51 A. 2d 497, 504; Utah Power & Light Co. v. Public Service Commission, 107 Utah 155, 152 P. 2d 542; City of Pittsburgh v. Public Util. Com’n., 171 Pa. Super. 187, 90 A. 2d 607.
“The whole purpose of the allowance is to maintain the integrity of the investment — to prevent a loss, not to assure a profit.” (pp. 346, 347.)
There is no error in the Commission’s allowance for depreciation. The district court erroneously concluded that depreciation must be calculated on the present fair value of the property.
State and federal income tax is the most important item of expense to be considered in the determination of a fair return. This exceeds all classified expenses other than maintenance. Income tax expense amounts to approximately 52% of the company’s net income. For every $1,000,000 the Company is allowed to earn as a fair return an additional $1,150,000, plus, must be allowed for income tax expense. Income tax is charged as an expense in calculating the rate to the subscriber, and is not considered as equity capital or stockholders’ expense for the purpose of public utility regulation.
The Company estimated its state and federal income tax at $8,314,600. The Commission disallowed $298,431 of this amount.
The Bell System files a consolidated tax return with the Internal Revenue Service. Included within that consolidated return are the majority of the Bell operating companies, including the Company in question. This Company pays its taxes arising out of the consolidated return directly to the Internal Revenue Service. The appropriate share of tax liability is computed on the basis of the Company’s net income. Likewise, the Kansas share is computed on net income derived from operations in Kansas.
The Company contends that the tax liability should be computed upon the basis of the actual debt ratio of the Company, which is approximately 80 per cent equity and 20 per cent debt. The Commission contends that since the Company is a wholly owned subsidiary of A. T. & T., the tax liability of the Company should be based upon the actual debt ratio of the parent and the subsidiary, which is approximately 66 per cent equity and 34 per cent debt. The difference between the positions taken by the Company and that of the Commission with respect to federal income taxes is approximately $298,431.
Both the district court and our commissioner found the Commission to be in error in disallowing the $298,431 as federal income tax chargeable to the Company. They stated as their reason that there is no logical basis for disregarding the separate corporate entities for the single purpose of calculating income tax.
We do not believe the reason given is sound. We have no intention of suggesting that the separate corporate entities of A. T. & T. and its subsidiary companies be disregarded. However, when the parent company and its subsidiaries elect to file a joint income tax return, they have disregarded their separate entities for income tax purposes. At least they have for tax purposes combined their income and expense. It is evident also that the parent company has used long term indebtedness, on which tihe interest is deductible from income as expense, with which to buy the common stock of its subsidiaries whose income tax is paid by its consumers as a chargeable expense. The Commission stated:
“The Applicant’s chief accounting officer, witness Giiesedieck, testified that the state and federal income taxes set forth in the exhibits were computed following the same method as that used in computing the Applicant’s actual income tax liability. On cross examination he conceded that the Applicant does not file a separate income tax return but, rather, files a consolidated income tax return with A. T. & T. He further testified that the interest which was paid by each operating company to ‘those outside of the consolidation was included in the consolidated return as a deduction.’ In his computations for the determination of the amount of income tax allocable to the Applicant, he included interest expense which was paid by the Applicant to its parent or other members participating in the filing of this consoldated income tax return. Yet in filing this consolidated tax return he eliminated such interest. In fact, he testified as follows:
“ T go back to my original statement, Mr. Bice. In a consolidated return you will have to eliminate interest payments between parties within the consolidation.’ (Emphasis supplied.) His computation includes as a deduction interest which was not deducted in computing federal income taxes (interest payments to the parties within the consolidation), and neglects to include interest which was utilized as a deduction for federal income taxes (interest on system-wide debt).
“The Staff proposed an adjustment of federal income taxes of $298,431. Witness Leroy, formerly a revenue agent with the Internal Revenue Service, proposed to correct witness Griesedieck’s computation by accepting only those things which witness Griesedieck concedes must be done in the tax returns as they were filed and the taxes were actually paid by A. T. & T. He began with the total capital employed in the State of Kansas, as reflected in Whiteaker’s Exhibit No. 2. He thereupon applied the system-wide debt ratio of 34.29 percent to this total capital and determined that the amount of system-wide debt which was allocable to the property in Kansas was $62,389,859, and computed the debt cost allocable to the State of Kansas of $2,133,733. This interest cost was substituted for the interest cost used by the Applicant in its compuations of income tax liability. Using this method he ascertains that the actual income tax expense incurred by the Aplicant was $298,431 less than the amount presented by the Applicant in its testimony.
“The Applicant’s federal income tax liability was incurred and assessed on a basis of a consolidated income tax return filed by A. T. & T. and its operating subsidiaries. The Applicant introduced copies of checks which indicated that it paid funds direct to the Director of Internal Revenue. This method of payment does not affect the ultimate liability of the Applicant, nor does it constitute evidence of the amount of taxes which were in fact incurred. Apparently the Applicant paid a portion of income taxes which should have, in fact, been paid by its parent, A. T. & T. In the final analysis the tax liability was incurred and the taxes paid on the basis of the consolidated return. In such return the interest expense which was deducted from gross income was not the interest expense which witness Griesedieck testified he used in his computations, but rather, the consolidated interest costs of the groups paid to persons or entities outside the consolidated group.”
The parent company has seen fit to talce advantage of a consolidated income tax return by combining its income and expense with that of its numerous subsidiaries. We cannot say as a matter of law that the Commission abused its discretion in calculating the Company’s income tax liability on the actual debt ratio of the parent and its subsidiaries which is approximately 66 percent equity and 34 percent debt.
Another expense item, which is immaterial in this case but appears to be a matter of principle worthy of considerable space in the briefs, is that of the Chamber of Commerce dues and charitable donations. In its brief, the Commission states its position as follows:
“The Company, in its income statement, included the sum of $18,337, which constituted Chamber of Commerce dues and charitable contributions. The Commission granted to the Company the benefit of 52 per cent income tax deduction resulting in a net adjustment of approximately $9,000. The Commission ascertained that these amounts were donations and not a business expenditure which should be borne by the telephone subscribers. Accordingly, charitable contributions were found to be donations to be absorbed by the stockholders.”
The district court found that the items should be allowed as expense. There is no contention that the amounts are unreasonable or excessive.
It is concluded that such expenditures are necessary if a company, firm or individual is to maintain its standing and good will in a community. Such expenditures should be allowed as a legitimate expense in any business. They are, however, subject to strict scrutiny by the Commission as to their reasonableness and propriety. Decisions may be found supporting both sides of the argument. Their review would serve no purpose here. It has not been the policy of this state to penalize any individual or corporation for assuming reasonable charitable and civic responsibilities.
It was estimated that the expense of the Company in preparing and presenting this rate case before the Commission would cost approximately $558,950. The Commission amortized this amount over a five-year period for the purpose of normalizing future expense. Included in the estimated expense is the sum of $119,886 which the Company claims represents the wages and salaries of regular employees who assisted the engineer in making his valuation study. It contends that the expense will be a continuing one and should be allowed as an expense. The Commission contends in its brief:
“These employees were also engineers with the Company and work on many other projects. If their work is performed on a capital asset, such as building or other telephone plant, the wages and salaries of such personnel are capitalized. These sums are then returned in the form of depreciation expense over the life of the building or plant on which the work is performed. If the work performed is on a building having a forty-year life, then such wages and salaries are recouped at the rate of 2K% a year and not for 100 per cent. The Commission was of the opinion that such employees, whose entire wages and salary which are not necessarily placed in operating expenses, should be amortized over the same five-year period in accordance with the other expenses directly attributable to this proceeding.”
The Company responds:
“. . . The Commission would place the burden on the Company of proving how much of these employees’ time would be allocated between capital projects and work charged to expense accounts.
“It would seem that the Commission should be required to sustain its dis-allowance by adequate findings supported by evidence and that the Commission’s disallowance was erroneous because of its failure to do so.”
The Commission should not have the burden of disproving a requested allowance not substantiated by evidence on the part of the Company. The controversy will be disregarded because there is no evidence to support a determination.
We will state that the Company’s position is correct if it can present facts to support its contention that part of the expense included wages and salaries of regular employees.
During the test period the Company’s casualty expense was very low. There was no dispute over the necessity of adjusting it upward in anticipation of a heavier casualty loss in the future. The first dispute is over the period of study used in making a normalized adjustment. The district court properly analyzed this phase of the dispute and reached a proper conclusion as follows:
“The Company contends that the normalized casualty expense adopted by the Commission is too low because the Commission used an unreasonably long and, therefore, nonrepresentative study period and, in addition, failed to consider current wage and price levels in its calculation.
“The Company arrived at its normalized figure by averaging the actual casualty expense over the most recent five-year period. This is the method which the Commission had used in recent cases.
“The Commission adopted the recommendations of its Staff which were based upon an entirely different approach. Casualty expenses associated with the 1951 flood on the Kansas River were treated separately and were averaged over a 48-year period to produce an allowance for major catastrophe.’ Other casualty expenses were based on the Company’s experience during the 20-year period from 1939 to 1958. The Commission undertook to estimate and allow for the increased amounts of plant exposed to casualties, but made no attempt to adjust for changes in wage and price levels which occurred during the 48-year and the 20-year study periods.
“This is a normalizing adjustment and in such adjustments the Commission’s view should not be disturbed unless it is clearly unreasonable. The question before us is simply whether the Commission’s adjustment is reasonable in view of the record.
“While the normalizing periods used by the Commission are unusually long and apparently unprecedented, we are unable to say that the use of these periods is unreasonable as a matter of law.”
The second dispute over this question is whether the normal expected casualty repair expense should be correlated with the original cost of the property damaged or with the current cost of repairing such damaged plant. The Commission correlated the expense with original cost. The district court ruled that the casualty expense must be correlated with current costs of repairing such expense.
This again is a dispute on principle rather than on an amount affecting the merits of the case. There are no facts in the record from which an exact calculation can be made as to the difference in dollars had the Commission correlated casualty expense with the current cost of repairing such expense. The Commission allowed $109,198 for casualty expense. A percentage of allowance may be determined by dividing this amount by $144,148,582, which the Commission found to be the depreciated original cost of the plant. If this percentage is applied to the present fair value of the plant, as adjusted from Patterson s calculation ($175,000,000 less materials and supplies) the difference would be less than one-fiftieth of one percent.
The commissioner concluded that the Commission was correct in correlating casualty repair expense with original cost. We cannot agree. Our commissioner attempted to state the rule applicable to casualty replacement cost but he did not carry through by stating and applying the rule applicable to casualty repair expense. We agree with the Company’s contention on this issue.
When a casualty occurs, some of the damaged plant has to be replaced and some repaired. The original cost of the plant that has to be replaced is removed from the property account and charged to the depreciation reserve. The present cost of the new plant is put in the property account and included in the rate base. The casualty repair expense is for repairing the portion of the plant that did not have to be replaced. This question involves the determination of the labor expense, traveling expense, cost of minor items of material, etc., which may be expected to be incurred in a year for repair of damage done by casualties. This work will be performed at today’s labor rates and material costs. Current price and wage levels must be recognized.
The calculation of a fair rate of return presents the most elusive and difficult question in this case. There does not appear to be much dispute as to what factors are to be considered in determining a fair rate of return. The Company contends for three standards and lists them as follows:
(1) A public utility is entitled to a return equal to that generally being made at the same time and in the same general part of the country on investments which are attended with corresponding risks and uncertainties.
(2) The return must be sufficient to enable the utility to maintain its financial integrity.
(3) The return must be sufficient to enable the utility to attract new capital on reasonable terms.
These standards are generally recognized by regulatory authorities and the courts.
The Company approves the statement made in the Commission’s brief:
“. . . A fair rate of return is that which will provide a company sufficient revenues to maintain its credit, and to attract capital at a rate of return commensurate with other investments and enterprises having corresponding risks and to preserve the financial integrity of the utility.”
The Company contends that the Commission used only the capital attraction test, and completely ignored the financial integrity test and the comparable earnings test.
It would appear that if a utility is allowed a rate of return which will attract capital on reasonable terms, its financial integrity is fairly well assured. At least the two standards are closely related. The same facts and principles that establish one will tend to establish the other.
The district court found that the Commission erred as a matter of law in that: “In determining the rate of return the Commission rejected all of the evidence in the record with respect to the earnings of non-Bell System business having comparable investment risks.”
This finding is contrary to the Commission’s finding that the “non-Bell System businesses whose earnings were presented for comparison did not have comparable investment risks.”
The Commission devoted considerable space in its opinion to this question. It stated that the witness who presented the comparative earnings study, “. . . admitted that his group of sixty companies are not necessarily similar to each other.” In its opinion the Commission stated:
“In the data presented by witness Johnson to support his conclusion that the Applicant should be entitled to a rate of return of 9 per cent to 10 per cent on a net investment rate base, or 7 per cent on fair value, he selected three groups of companies. In all of the groups selected he did not select companies which were similar to each other in the group. It requires no mathematical or statistical insight that where a person does not have a homogeneous group the average cannot reflect a typical characteristic of that group. Statisticians have developed measures or tests which indicate the extent to which an average is significant. However, witness Johnson has not attempted to make such tests. The lack of any central tendency and complete disparity among the companies in a group clearly indicate that such groups are not homogeneous. They are not similar to each other and not being similar cannot possibly be similar to the Applicant.
“For example, the first group of fifty companies selected by witness Johnson show that in twelve out of thirty-four years at least one of the fifty companies had losses, and that these loss situations were not limited to the early 1930’s. In fact, in this group the earnings in a given year may vary from 23.7 per cent for one company to a loss of 43 per cent for another. This is not the case for utilities such as the Applicant, and witness Johnson so admitted. In fact, there were sharp differences in the rates and patterns of earnings for two companies in the same field. Thus, in 1933, when General Electric earned 3.9 per cent on its capital, Westinghouse lost 5 per cent. In 1956 General Electric earned 15.5 per cent but Westinghouse earned only 1.3 per cent. The lack of similarity in these fifty companies is obvious.
“In witness Johnson’s second group of sixty companies he admitted that these companies are hot necessarily’ similar to each other, as reflecting the same or nearly the same risks. The range of earnings of these sixty companies in a given year is as wide as twenty-to-one. He did not believe that even an average which he derived for a given company for the period he selected, is indicative of the prospective level earnings of that company. Therefore, such an average clearly does not indicate what the prospective earnings of the Applicant should be.
‘Witness Johnson’s data clearly indicates that these sixty companies are not only dissimilar to each other but are not comparable companies to the Applicant.”
The court should not substitute its judgment for that of the Commission where the matter is in the realm of fair debate.
In considering a return which would be sufficient to enable the Company to maintain its financial integrity and attract new capital on reasonable terms, the Commission gave considerable attention to the cost of debt capital and the cost of equity capital.
The Commission accepted the composite contractural cost of debt of the Company and its parent. The Company has outstanding some $275,000,000 of debt. The contractural cost of this debt is 3.59 per cent. The imbedded cost of the debt of A. T. & T. as of December, 1958, was 3.43 per cent, the composite cost of debt is 3.49 per cent.
Witness Johnson, on behalf of the Company, suggested that the Commission disregard the contractural cost of debt and use in lieu thereof the current cost of acquiring debt capital. However, witness Langum, also testifying on behalf of the Company, preferred to use the imbedded cost of the existing debt of both the Company and its parent and then ascertain the full incremental cost of additional debt. Accordingly, the Commission used the composite contractural cost of debt, which is ascertained to be 3.49 per cent.
On this phase of determining the cost of debt capital there is no serious issue presented.
The Company contends that the cost of debt capital for new construction, since the test period, is and will continue to be higher than that found by the Commission. If that is so, it is a matter that will require attention after the new construction is placed in operation. Reduction in expense or increased income may absorb the additional cost. The cost of the long term indebtedness covering the property in service at the time of the hearing is not in dispute.
Considerable evidence was introduced before the Commission as to the cost of equity capital. The Commission had before it the earnings on equity capital of five Rell operating companies which provided telephone service over the United States, each of which had stock which was on the open market. Their stock was traded and purchased by independent investors. The Commission considered these five companies to have corresponding and similar risks as this company whose stock was owned entirely by its parent A. T. & T. The evidence disclosed that these five companies had an average earning on their common stock, for the five years preceding the test period, of 8.16 per cent. The Commission considered this evidence in connection with the other evidence submitted and concluded that the equity capital should have a return of from 8.4 to 8.6 per cent. It used a figure of 8.55 per cent as a reasonable return on equity capital, i. e., the return necessary to enable the utility to maintain its financial integrity and attract equity capital. The Commission then consolidated its studies and arrived at an overall rate of 6.59 per cent.
The Commission found the rate base, the rate of return, and the present net operating income and concluded:
“The Applicant, after taking into consideration the foregoing normalizing adjustments, had a net operating income of $8,966,057. This allowance of 6.59 per cent on a rate base of $145,899,082, increases the Applicant’s present income to $9,581,799.”
After the Commission had reached its conclusions, it proceeded to prove that it had allowed a fair rate of return by a calculation showing that the net income to be produced met all of the revenue requirements of the Company. The Commission stated:
“The total capital employed in Kansas intrastate operations amounted to $143,920,617, of which $119,130,147 was supplied by the parent A. T. & T. by advances and investment in the common equity of Southwestern Bell Telephone Company. The remaining funds in the amount of $24,790,470 employed in Kansas intrastate operations were secured by the issuance of debentures of the Company. The parent company capitalization at December 31, 1959, indicated a debt ratio of 20.233 per cent and an equity ratio of 79.767 per cent. The funds invested in or advanced to the Applicant by the parent, A. T. & T., are represented by $24,103,602 of debt outstanding in the hands of the public and $95,026,545 representing equity capital.
“The Kansas intrastate portion of the total capitalization of the Applicant after consideration of the actual investment policies of the parent A. T. & T. and of Southwestern Bell Telephone Company is as follows:
Amount Ratio Int. rate Interest
Equity capital......... $95,026,545 66.027%
Debt capital:
Southwestern Bell . . . 24,790,470 3.592% $815,859
A. T. &. T........ 24,103,602 3.3848% 815,859
Total debt............ $48,894,072 33.973% 3.49% $1,706,382
Total capitalization .... $143,920,617 100%
“This capitalization is computed upon the basis ascertaining the actual amount of debt capital furnished by A. T. & T. The interest, expense and other income and charges, when related to the net operating income, provides $8,126,663 net income available for the stockholder of the Applicant, A. T. & T. The rate of return on this equity capital is approximately 8.55 percent.
“In the determination of revenue requirements as a result of this increase, we have taken into consideration the actual capitalization of the parent company and the cost of the debt capital of the parent. When this factor was taken into consideration, together with the capital structure of the Applicant and A. T. & T., we discerned that the use of this method is to the advantage of the Applicant and compares favorably with the cost of debt and capital structure presented in this proceeding. We used a 3.49 percent cost of debt as compared with the Bell System debt cost of 3.42 percent. We also used a debt ratio of 33.97 percent instead of 34.29 percent. Both of these computations inure to the benefit of the Applicant. Since these figures represent the actual composite debt cost and capital structure of the parent, A. T. & T., and the Applicant, we conclude the use of such a method is logical and consistent with sound utility regulation, especially where the operating company is a wholly owned subsidiary of a national utility.”
This demonstrative calculation has caused more confusing controversy than any other issue in the case.
The Company contended that the calculation was erroneous and conflicted with the rate of return allowed. It also contends that the Commission erred in including interest on plant under construction as other income in its calculation.
The district court sustained the contentions of the Company. The Commission objects to the conclusion of the district court.
Our commissioner stated — “The unimportant issue (unimportant if the rate of return allowed by the Commission was reasonable) will probably be confused further by any attempt to explain it.” He then concluded that the Commission’s method of calculation was proper and would have obtained the correct result, but that the Commission was in error in using interest on plant under construction in its calculation as other income.
Roth the Commission and the Company have taken issue with our commissioner’s conclusions.
We agree with our commissioner that his attempt to explain the issue has not lessened the confusion. Space does not permit a lengthy explanation in sufficient detail to eliminate all doubtful inferences. It must be understood, to avoid confusion, that for the purpose of the Commission’s calculation the rate base was given no consideration. The Commission was considering only the actual investment in the plant.
We do not believe that the Commission erroneously included interest on plant under construction, as other income, in its calculation. The Commission did not include plant under construction in the rate base. Neither was interest on plant under construction included in income which was to be derived from the application of the 6.59% rate of return. The Commission was simply demonstrating that the net income it had allowed was ample to meet the revenue requirements of the capital invested.
Insofar as the Commission’s theoretical calculation is concerned, it was dealing with the actual capital allocated to Kansas. This included capital covering work in progress. If such capital is included then interest on such capital must be included as other income or the calculation is thrown out of balance. The Company carries interest during construction on its books as income until the construction is transferred to the plant account. The interest carried as income is then transferred to the plant account as cost of construction.
This is an area in which the Commission, with its experienced engineers and accountants, is better equipped to cope than are the courts.
The Company contends that the Commission has attempted to substitute its judgment for that of the Company as to the capital structure. In its opinion the Commission stated:
“Admittedly the Applicant intends to continue its construction program in this state. In order to bring the Applicant’s capital structure in line with what we have previously found to be prudent, the Applicant may finance up to $50,000,000 of new improvements by debt financing. If the Applicant follows such a financing program over a period of years then its earnings available to the equity holders will increase in approximately direct relation to the corresponding increase of debt financing in the capital structure. Such a program would result in a rate of return to the equity holder in excess of that which we found to be a fair and reasonable rate.”
The district court found: “While the Commission has stated that the factor of capital structure had not entered into its conclusions with respect to rate of return, it is clear that this factor has influenced the Commission.”
It is difficult to determine all of the considerations which passed through the minds of the Commissioners in reaching a conclusion in this complicated case.
The Commission says the matter did not enter into its conclusion with respect to a fair rate of return. There is nothing in the record to indicate that it did. There would appear to be much authority for the Commission s suggestions.
In New England Telephone & Telegraph Co. v. Department of Public Utilities, 331 Mass. 604, 121 N. E. 2d 896, the Supreme Court of Massachusetts stated as follows:
“As a matter of internal management, the Company’s directors had the right to determine upon the reduction in indebtedness. Indeed, the department’s very decision declares that the primary duty of the directors was to exercise their own best judgment of what was best for the company, and intimates by indirection that they did so. The directors did not have to abdicate their own business judgment and to ingest the department’s opinion or else be denounced as contumacious. But . . . debt structure and percentages of debt and equity capital enter vitally into the determination of the amount which the consuming public should pay. A 35 per cent debt ratio might be deemed in the nature of a company luxury not to be reflected in rates to be charged the public. In any event, the department could think so without our being able to adjudge that there is anything unlawful or confiscatory about its position.”
To the same effect is Southern Bell Tel. & T. Co. v. Louisiana Pub. Serv. Com'n., 239 La. 175, 118 So. 2d 372, where the court stated as follows:
“The Company argues that the Commission has invaded the reasonable range of discretion of the Company’s board of directors when it in effect attempts to determine the amount of debt which the utility must incur. This same argument was made when this case was before us in Southern Bell Telephone & Telegraph Co. v. Lousiana Public Service Commission, supra . . where we rejected the Company’s contention.
“In addition to the approval of the formula by us it has been held valid by the courts in the states of Massachusetts, New Hampshire, Vermont, Maryland, Mississippi, New Mexico, Idaho and Pennsylvania. It has likewise been adopted by the Commissions in the states of Tennessee, Connecticut, South Dakota, Utah, Texas, Nebraska, Illinois, Alabama and in the District of Columbia.”
It matters not whether the rate of return is to be applied to a cost of construction rate base or a present fair value rate base, the capital structure is important in determining the cost of capital.
We would add that where a parent holding company maintains a high debt ratio in its capital structure while its operating subsidiary’s debt is practically nil, a question might well arise in the minds of the members of a regulatory body as to reason and the effect.
The next contention made by the Company presents a more serious problem. The Commission, although making no finding of any impropriety, stated that it would take the transaction between the Company and its affiliates into consideration in the determination of a fair rate of return. This matter was covered by the district court as follows:
“First, the Company contends that the Commission’s rate of return finding must be set aside because the Commission considered four unrelated’ subjects in arriving at the allowed rate of return. At page 97 of its Order, the Commission said that in determining a fair rate of return it was considering the benefits accruing to the Company because of the existencé of the license contract between the Company and A. T. & T., the earnings of Western Electric Company, and the procedure which was followed in separating the Company’s property and expense between interstate and intrastate operations. What the Commission really means by this is that it is considering benefits which it believes the parent holding company receives at the expense of Southwestern Bell and therefore at the expense of the rate payer. At page 61 of its Order, it said it was also considering the ‘factor’ of the Company’s payments into its employees’ pension trust fund in determining a fair rate of return. In other sections of its Order the Commission was critical of the Company on these four subjects, but it made no specific disallowance in either rate base or expenses because of any one of them.
“Earlier in this report I stated that there is no finding by the Commission which would support a disallowance on any of these subjects, and therefore the Commission was incorrect in ‘considering’ these factors in the rate of return. The Commission was performing its duty in scrutinizing the relationships between the Company and its affiliates, A. T. & T. and Western Electric, to see if there was any unfairness or unconscionable gain, but, as the Ohio Supreme Court said, in City of Columbus v. Public Utility Commission of Ohio, 93 N. E. 2d 693 (1950), ‘. . . the mere existence of such relationship cannot stand as proof of such facts. If there is such unfairness or exploitation it must be shown by evidence in the record.’ ”
The fact that transactions take place between affiliated Companies is a matter justifying close scrutiny, but the matter should not be given any consideration in the absence of evidence of unfair dealing.
In Southwestern Bell Tel. Co. v. State Corporation Comm., 169 Kan. 457, 219 P. 2d 361, this court considered the proof necessary to establish the reasonableness of affiliated company transactions. Once the Company had established such proof, the Commission must abide by the results unless it wishes to introduce evidence to the contrary.
Adjustments in rate cases cannot be made on speculation and conjecture. This court has approved the statement that “a court or commission is not allowed to roam the unfenced fields of speculation.” (St. Louis-San Francisco Rly. Co. v. State Corporation Comm., 187 Kan. 23, 353 P. 2d 505.) The extent to which the Commission reduced its idea of a fair rate of return because of the factors mentioned, if any, is not disclosed. It would appear from the method by which the Commission arrived at the rate of return that it was not actually given any consideration. The order of the Commission will not be set aside unless the return allowed is found unreasonable.
What has been said is not to be understood to mean that the Commission cannot consider existing affiliated relationships in determining ability to attract capital, cost of capital, corresponding risks and other factors which tend to reflect on a fair rate of return.
The Company complains that the Commission did not give sufficient consideration to attrition and the anticipated effect of future inflation. The district court so held. The Commission contends:
“In a period of rapid expansion combined with some degree of inflation, the utility’s average investment per customer, and hence the amount of capital which must be serviced by each customer, tends to rise faster than do the revenues. Its rates are geared to the average unit cost of plant in an earlier time; hence the growth in sales does not provide sufficient additional revenue to service the additional higher cost plant. This condition is commonly referred to as ‘slippage’ or ‘attrition.’
“The Applicant’s witnesses testified that it was subjected to the forces of attrition, namely, increasing material cost, higher labor cost, and was required to provide more elaborate and expensive equipment at higher cost to replace tire equipment retired. The Staff presented testimony to the effect that during the last year, the Applicant’s revenues have increased and that the amount of expenses attributable to each telephone unit in service has decreased, and that tlie revenues for 1959 are also on the increase. In 1953 the sum had decreased to $17.04. The number of employees per thousand telephones was reduced from fourteen to nine since 1952. During the period from 1953 to 1958 the average cost of wages per unit of service decreased from $39.29 to $35.52. Since 1952 it is admitted that revenues have increased during each year. From 1953 to 1958 the revenues per unit of service increased from $77.53 to $88.52. The Applicant has produced no evidence concerning whether these offsetting factors are less than sufficient to eliminate the effects of attrition. From this testimony it is clear that the important question for this Commission to determine is whether the increase in revenue has been sufficient to counteract the forces of attrition and absorb the effect of these erosive factors. In viewing the record, it appears that the offsetting forces are more than sufficient to absorb the effect of attrition.”
Again there is no justification for the court substituting its judgment for that of the Commission. Although rates are made for the future, the allowance of an increase in income in anticipation of further inflation can have a very unwholesome effect on economy.
What constitutes a just and reasonable return is not subject to exact definition. This court has stated that the words “just and reasonable” do not mean “nonconfiscatory.” A rate may be non-confiscatory, as the word is used in considering constitutional prohibitions, and still be unjust and unreasonable.
In Railroad Co. v. Utilities Commission, 95 Kan. 604, 148 Pac. 667, it is stated:
“There is, however, much merit to the contention of the carriers in the case at bar that the word ‘unreasonable’ is not synonymous with ‘confiscatory’; and this is supported by noting that the judicial review of an order of the commission shall be determined according to equitable principles. A rate may not be confiscatory, that is, it may not be so low as to amount to a taking of the carrier’s property, its transportation, without due process of law or without just compensation, and yet be inequitable in that it does not yield a fair compensation, which would include cost of moving the traffic, wear and tear of tracks and equipment and a fair profit for the service rendered . . .”
The term “just and reasonable” rates, as used in G. S. 1949, 66-110, means something more than “nonconfiscatory,” but it is difficult to determine when the rate of return allowed becomes unreasonable as a matter of law. This court has defined the term unreasonable.
In Southern Kansas Stage Lines v. Public Service Comm., 135 Kan. 657, 662, 11 P. 2d 985, this Court stated as follows:
“It is not so easy to define what is meant by the term ‘unreasonable’ as used in this statute. The Act itself prescribes no standard by which to test the validity of an order of the commission assailed on the grounds that it is unreasonable. In Railroad v. Utilities Commission, 95 Kan. 604, 615-622, 148 Pac. 667, the court dealt at some length with the legislative use of the words ‘unreasonable,’ ‘unjust,’ ‘oppressive,’ and ‘unlawful’ in the Utilities Act, and held that they were not synonymous with the word ‘confiscatory,’ and that they should be given their fair and reasonable import according to the usages of courts of equity. In Soule’s Dictionary of English Synonyms, unreasonable’ is set down as conveying the same idea as ‘irrational, foolish, unwise, absurd, silly, preposterous, senseless, stupid, injudicious, nonsensical, unphilosophical, ill-judged, exorbitant, extravagant, unfair, unjust, extortionate, excessive.’
“It is only when such determination is so wide of the mark as to be outside the realm of fair debate that the courts may nullify it. The same regard should be given to the informed conclusions of fact made by the public service commission. Where its findings of fact are based upon substantial evidence and other matters shown by the record with which that tribunal is authorized to deal, a court is not justified in setting its orders aside because the record shows that a different order or decision than the one made by the commission could fairly have been based thereon. Indeed, there are narrow limits to the authority which the legislature could confer on the court to deal with the sort of powers which may properly be vested in an official board like the commission.”
The Commission found that under the circumstances in this case, a return of 6.59% was reasonable. There is a range of reasonableness. It cannot be assumed that the Commission in establishing a rate has fixed it to the exact degree of definiteness. At some point a rate of return becomes so low as to be unreasonable to the Company as a matter of law. At some point a rate of return becomes so high as to be unreasonable to the consumers as a matter of law. It is only at the high and low point that a court can interfere. It is the responsibility of the Commission to fix the rate somewhere between the high and low point which it believes, under all of the circumstances, to be fair to both the Company and the consumer.
A court cannot fix the rate of return. It can only determine when a rate is so low or so high as to exceed the bounds of reasonableness.
In State, ex rel., v. Flannelly, 96 Kan. 372, 152 Pac. 22, it is stated:
“The courts have repeatedly declared that the courts can not fix rates, and that fixing rates is a legislative function. When rates are fixed, the courts can ascertain whether or not they are in violation of law or of some constitutional provision. But courts have not the authority to determine what rates will be reasonable, just, compensatory, or legal, and then put in effect those rates. The commission can not finally determine what rates will be legal and will not violate constitutional provisions. The commission is the body authorized by law to say in the first instance what rates are legal and will not violate constitutional provisions, but the courts must finally say whether or not the rates fixed are illegal or do violate such provisions. The one function is legislative, while the other is judicial. The commission can not invade the field occupied by the court; neither can the court invade the field occupied by the commission. The commission must act first, and the courts afterwards.”
A complete record is before the court in this case. After a careful consideration of all the facts and circumstances presented for the Commission’s consideration, and a review of the recent decisions touching on the matter it would appear that a rate of return of under 6.59%, on the rate base found by the Commission, would not be approaching the zone of unreasonableness rendering it unlawful.
The Company’s stock is not sold to the public. It is all held by A. T. & T. In December of 1958, during part of the test period covered by this investigation, the Company issued $110,000,000 of stock to A. T. & T., at par value, to liquidate an indebtedness. The record discloses:
“The Bell System’s capital structure during the period of 1947 to 1958 changed considerably. Surplus increased from $330,481,000 in 1947 to $1,933,327,000 in 1958, or an increase of almost 500 percent. The ratio of debt declined from 50.46 percent in 1958 to 31.93 percent in 1956. The present debt ratio of the Bell System is 34.29 percent as of December 31, 1958. The equity capital, which includes stock plus 10.97 percent surplus, was 67.71 percent at the end of the calendar year of 1958. Since 1947 the equity of the company has increased by 287 percent, only an increase of 119 percent in debt, while surplus has increased 485 percent.
“The dividend payout of the Bell System during the period from 1938 to 1958 was 77.4 percent. During this same period the dividend payout for the Southwestern Bell Telephone Company was 79.2 percent. For the period from 1949 to 1958 the dividend payout was 70.8 percent and 74.1 percent, respectively. The surplus of the Bell System is presently six times as large as it was at the end of 1938. During this twenty-year period the Bell System retained $1,682,646,000. Despite the fact that the number of shares of outstanding stock of the Bell System more than tripled during this period, the earned surplus per share increased from $16.52 at the end of 1938 to $27.41 at the end of 1958.”
It does not appear that either the Company or A. T. & T. is having any difficulty attracting capital or paying dividends.
Summarizing the errors which we have found in the Commission’s findings and conclusions, we find: (1) $61,000 should be added to the rate base, the amount of the purchase price of an exchange over the cost of reproduction new less depreciation; (2) $9,000 should be added to expense as an allowance for dues and contributions; and (3) approximately $30,000 should be added as additional anticipated casualty repair expense.
We do not believe that an error of $61,000 on a rate base of $145,399,082, nor an error of $39,000 on a net operating income of $9,581,799 is of sufficient importance to justify setting aside the order of the Commission.
As has been previously stated, there is a range of reasonableness for a rate of return. If a Court is to upset an order of the Commission because it finds the rate of return to be a fraction lower than that found by the Commission, then it would have to upset the order if it found the rate to be a fraction higher. No two individuals could review these complicated proceedings and reach exactly the same answer.
This court cannot say, as a matter of law, that a return of a small fraction of one percent lower than that found by the Commission is so unreasonably low as to be unlawful.
This court cannot fix a rate. Neither can it tell the Commission what rate would be most fair to both the Company and the consumers. This is the sole responsibility of the Commission.
“In proceedings to compel compliance with an order of a public utility commission or to prevent its enforcement, the court should grant final judgment or decree either dismissing the proceedings or directing that process issue as prayed. The court may strike down the order if it is illegal, but it has no authority to ascertain or determine what order would be reasonable and proper, or to establish such an order. Where rates fixed by the commission are under attack, the court may determine the illegality thereof and restrain their enforcement, but may not fix new rates.” (73 C. J. S. Public Utilities, Sec. 67, Page 1204.)
It necessarily results from what has been said that the injunction orders were improperly issued by the lower court. The original order provided:
“It is, therefore, by the court considered, ordered, adjudged and decreed that the operation of the Commission’s order dated May 27, 1960 and the supplemental order of June 29, 1960 entered in its Docket No. 60-800-U should be, and they are hereby stayed and enjoined as prayed for in Plaintiff’s Application for Stay, and the Defendants are stayed and enjoined from interfering in any way with the Plaintiff in promulgating, charging, enforcing and collecting fair and reasonable rates, charges, schedules and tariffs for intrastate telephone service in the State of Kansas during the pendency of these proceedings.”
In its final judgment the lower court stated:
“The Order of this Court made and entered on September 15, 1960, temporarily staying and enjoining the operation and effect of said Orders of the Defendant Commission should be, and the same is hereby made permanent and continued in full force and effect until such time as the Defendant Commission shall establish fair and reasonable rates and charges for the Plaintiff in accordance with the Decision and Findings of Fact and Conclusions of Law herein set forth.”
The rule applicable to stay orders or temporary injunctions in rate cases is stated in 73 C. J. S., Public Utilities, Sec. 67, at page 1204 as follows:
“In order to warrant an injunction pendente lite it must appear that there is a reasonable probability that complainant will prevail on final hearing; and, where the matter is doubtful or where it is probable that a practical test will be required to ascertain the reasonableness of the order or regulation in question, such relief should be refused. So, where there is any doubt as to the proper exercise of the commission’s discretion in making its order, as where the record presents a bona fide controverted issue of fact, a temporary injunction should not be granted. Injunctive relief in such case should not be granted except after a plenary trial of the issues on the merits.”
The lower court appears to have recognized the rule as quoted above. It concluded in its order granting a temporary injunction:
“The earnings allowed to the Plaintiff by the Defendant Commisison are not sufficient to enable Plaintiff to earn a fair return ... on the present fair value of its property and this denial of earnings to which the Plaintiff is lawfully entitled would result in great and irreparable damage to the Plaintiff if the stay herein petitioned were not granted in that Plaintiff would suffer daily confiscation of its property until reasonable and adequate rates are ultimately fixed.” (Emphasis ours.)
The error of the District Court in granting the temporary injunction and later in making that injunction permanent grew out of its conclusion that the law of Kansas requires the use of a current fair value rate base; that is, that G. S. 1949, 66-128, places a mandatory requirement upon the commission to determine the present fair value of the company’s property by using only estimated reproduction cost new less depreciation or some related formulae, and by excluding any consideration of original cost less depreciation. As we have seen, the term “reasonable value” as used in the statute has a connotation peculiar to rate proceedings and the commission is not bound to any particular formula or combination of formulae in determining the reasonable value of the company’s property.
The judgment of the district court, in the case numbered 42,348, granting a stay and temporary injunction is reversed.
The judgment of the district court in the case numbered 42,472, vacating and setting aside the Commission’s order, and making permanent its temporary stay and injunction order is reversed with instructions to dissolve the permanent injunction. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a-promissory note. The note reads as follows :
“$194.00. January 5th, 1871.
Four months after date, for value received, I, administrator of the estate of Walter R. Gage deceased, promise to pay to ■J. S. Hoke & Co., or order, the sum of $194.00, vfíth interest at the rate of 12 per cent, per annum‘after maturity until paid. Payable at the Exchange Bank, Atchison, Kansas.
F. H. Hostetter,
Administrator of the estate of W. R. Cage, deceased.”
The defendant answered, that he executed this note in the ' ■capacity of administrator of the estate of W. R. Gage, deceased, and not in his own individual capacity. The plaintiff demurred to this answer on the ground that it did not .state facts sufficient to constitute either a cause of action or a defense. The court sustained the demurrer, and no exception was taken thereto. The court then proceeded with the hearing of the case, and found in favor of the plaintiff and against the defendant for the amount of the note and interest, and rendered judgment accordingly. No exception was taken to the hearing, or finding, or judgment. Indeed, no exception was taken to any ruling, order, finding or decision of the court below. Therefore we cannot reverse ’the judgment of the court below. We cannot even consider the ruling on the demurrer, or any other ruling not excepted to. And just such a judgment as was rendered may under some circumstances be properly rendered on just such a promissory note. Aside from what is shown by the note itself, and by the an swer of the defendant, which was demurred out of existence, there is nothing to show that said note ever had any connection with the business of said estate, or even that the estate itself ever had. any existence in fact. Mr. Parsons says that-“An administrator or executor can only bind himself by his contracts; he cannot bind the assets of the deceased. Therefore, if he make, indorse, or accept negotiable paper, he will be held personally liable, even if he adds to his own name the name of his office,” etc. (1 Pars. Notes and Bills, 161; see also, to the same effect, Daniel on Negotiable Instruments, 202, §262.) In the case of Ferrin v. Myrick, 53 Barb. (N. Y.) 76, 91, 92, a case cited by plaintiff in error, the court say: “ The law is however too well established to admit of question, that an executor or administrator by ordering such expenses [for gravestones] makes himself personally liable fQr them. This is one proposition, but it does not necessarily follow that the estate he represents may not also be liable. Indeed, if there are assets it is admitted that the estate is ultimately liable.” It will be noticed that the note in this case is a negotiable note, and therefore, under all the authorities, the defendant bound himself personally for its payment, even though the estate may also be liable. But it is not shown in this case that the estate is or ever can be made liable.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of forcible entry and detainer. The action was commenced before a justice of the peace, where judgment was rendered in favor of the plaintiff. The case was then taken to the district court on petition in error, where the judgment of the justice was reversed, the case again tried, and judgment rendered in favor of the defendant. The plaintiff now brings the case to this court on petition in error.
We cannot tell from the record brought to this court whether the district court committed any material error or not. Certainly no material error is clearly and affirmatively shown; and therefore the judgment of the court must be affirmed. We would say, however, that it is necessary that a party desiring to commence an action of forcible entry and detainer should, at least three days' before commencing his action, notify the adverse party by a notice in writing to leave the premises in dispute; (Gen. Stat. 810, §161;) and if he does not give such notice he cannot maintain the action. Kennedy v. Hitchcock, 4 Porter, (Ala.) 230; Pricket v. Ritter, 16 Ill. 96; Dutton v. Colby, 35 Me. 505; Mead v. Kirkpatrick, 8 N. J. Law, 308; Forbes v. Glashan, 13 Johns. 158. And this notice should show clearly who claims to. be entitled to the possession of the premises, and who makes the demand therefor; and then no one but the person who thus claims the premises and makes the demand can maintain the action under such notice. Therefore, a notice, not showing in the body of the same who claims the premises, but being “served by Noah Nason, in the name of Edward Nason as the agent of Noah Nason,” is not a sufficient notice for Edward Nason to found an action of forcible entry and detainer upon. But even if such notice were sufficient, the judgment of the court below in this case would probably still have to be sustained upon other grounds, and for other reasons.
The judgment of the court below is affirmed.
Bbeweb, J., concurring.
Hobton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Horton, C. J.:
The questions presented in the case for our consideration will be disposed of by us in the order in which they were raised. After the return of the sheriff had been made, and the reply thereto filed, the counsel for the respondent objected to the summoning of the prosecuting witness, and asked that the petitioner be remanded to the custody of the officer, as it appeared from the record that, upon complaint made that a criminal offense had been committed, a warrant describing the offense had been issued, the prisoner arrested, a preliminary examination duly had before the proper officer, and a finding made that the petitioner was guilty as charged in the complaint and warrant; that thereon bail had been fixed at $5,000; that the petitioner had not offered any bail, and had been legally committed for trial, and no question was made on account of any defect in the charge, or process. Under § 671 of the code, (ch. 80, Gen. Stat. 763,) it is expressly provided, that no court or judge shall inquire into the illegality of any judgment or process whereby the party is in custody, or dis charge him, when the term of commitment has not expired, when the party is in custody upon any process issued on any final judgment of a court of competent jurisdiction, or upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.” An order of commitment to hold a prisoner for trial, issued by a magistrate before whom a person is brought for examination, upon a charge of having committed an offense, after such examination is concluded, and a finding made that it appears that the prisoner is guilty as charged in the complaint and warrant, is not “ a process issued on any final judgment of a court of competent jurisdiction;” nor is such a commitment included in any process named in § 671 of the code. Plence, there is no prohibition in said section to prevent a court or judge from inquiring into the legality of the imprisonment of a person under a commitment of an examining magistrate. ■
Sec. 672 of the code, (Gen. Stat. 1868, 763,) provides: “No person shall be discharged from an order of commitment issued by any judicial or peace officer for want of bail, or in cases- not bailable, on account of any defect in the charge or process, or for alleged want of probable cause; but in all such cases, the court or judge shall summon the prosecuting witnesses, investigate the criminal charge, and discharge, let to bail, or recommit the prisoner, as may be just and legal, and recognize witnesses when proper.” Under this section we hold that when a writ of habeas corpus issues on a complaint of illegal imprisonment, for alleged want of probable cause, the judge or court issuing the writ may, even in cases where there is no defect in the charge or process, summon the prosecuting witness, investigate the criminal charge, and discharge, let to bail, or recommit the prisoner, as may be just and legal. This section gives'a party committed for a crime by an examining magistrate an appeal from his commitment by virtue of the writ of habeas corpus. The People v. Tompkins, 1 Parker’s (N. Y.) Crim. Rep. 224, 240. Upon this ground the court overruled the objection to the hearing of evidence in the case, and the motion to remand upon the record. But the court ordered, on its own motion, that the petitioner should amend his reply by setting out therein as fully and specifically as possible the testimony given by the various witnesses before the examining magistrate, and named in the return of the sheriff. The better practice is, where a petition is presented for a writ of habeas corpus, for alleged want of probable cause, to embody in the petition all the testimony taken before the examining magistrate. When this evidence has been reduced to writing by the magistrate, or under his direction, a copy thereof should be obtained, with the certificate of the magistrate thereto. When such testimony is not reduced to writing, there usually is but little difficulty in setting out the material and important matters testified to.
Upon the hearing of the ease on the merits, the petitioner objected to the witness John Hood testifying that he was induced to part with the $1,500, and the certified check, on the statements and representations of Snyder, on the ground that it was incompetent, and was calling: for the . . „ , ° secret, mental emotions ot the witness. The objection was not well taken. This was a material fact to be established. It was proper for this court to know what influence the representations of Snyder had upon the witness. If* they had none at all, the prosecution must have failed. “The fact was sought after, and not the opinion of the witness.” People v. Herrick, 13 Wend. 87; People v. Sully, 5 Parker’s (N. Y.) Cr. Rep. 142; People v. Miller, 2 Parker’s (N. Y.) Cr. Rep. 197; Thomas v. The People, 34 N. Y. 351. Objections were also taken to Hood’s testimony that he believed the representations made to him by Snyder on the 23d, 24th, 25th, and 28th of November. The objections were overruled, and for the reasons above stated, we think the evidence competent. It is indispensable to the consummation of the crime of obtaining money or property under false pretenses, that the person who has been induced to part with his money or property thereby must believe the pretense is true, and, confiding in its truth, must by rea son of such confidence have been cheated and defrauded. We do not mean by this ruling that such evidence is the best, nor the most reliable; nor that it is necessary for the prosecutor to state he believed and relied upon the pretense. All of this may be inferred. We simply hold the evidence admissible.
The material question however in this case, is, whether on the evidence submitted to us an offense is made out against Snyder for false pretense, within the statute, in his obtaining from Hood & Kincaids, on November 25th, the $1,500 in currency, and the certified check of $1,500. The counsel for the petitioner contended that there was no evidence of the procuring of the money or check by any false pretense. Fif'd: Inasmuch as Hood, at the time he let Snyder have the money and check on the 25th of November had an absolute order in the form of a telegram from Painter & Son to honor Snyder & Co.’s drafts for four thousand dollars, and had previously refused to pay the money on a letter of credit, which he construed as requiring him to see to the shipping of the stock to Painter & Son, it is conclusively shown that such telegraphic order of Painter & Son was the sole inducement by which the money and check were parted with by Hood. Second: That the representation made by Snyder to Hood, that he had bought the pick of a large lot of cattle, about 100 head, was true on the said 25th, when the money and check were obtained; and that the statement that the cattle would be shipped to Painter & Son at Kansas City, was a representation or assurance in relation to a future transaction, and did not amount to a statutory false pretense. As to the first proposition of counsel of the petitioner for his discharge, we answer, that we are not satisfied that Hood parted with the money and check solely on the telegram of credit of the 25th. The testimony tends to show that he was induced to part with the property in controversy, partly on that telegram, partly on the representation of Snyder that he had bought about 100 head of cattle, and partly on the statement that he would ship the cattle to Painter & Son. In an examination of this character, we are not to pass absolutely on the guilt or innocence of the prisoner: if we shall find an offense has been committed, and there is probable cause to believe the prisoner guilty thereof, the prisoner should be committed for trial. As different motives were assigned by the prosecutor as operative in producing the delivery of the . money and check to Snyder, the examining magistrate, and this court, is only to ascertain that there is probable cause to believe that the pretenses proved to have been false and fraudulent, if within the statute, were a part of the moving causes which induced Hood to part with the property, and that Snyder would not have obtained the same if the false pretense had not- been superadded to the telegraphic order of Painter & Son of November 25th, to authorize the holding of Snyder for trial. It is not necessary, to constitute the offense of ob- . taining goods by false pretenses, that the owner should have been induced to part with his property solely and entirely by pretenses which were false; nor need the pretenses be the paramount cause of the delivery. It is sufficient, if they are a part of the moving cause, and without them the prosecutor would not have parted with the property. People v. Haynes, 14 Wend. 547.
This leads us to examine the second proposition uponwhich the counsel for the petitioner claims his release, and to consider the representations made by Snyder, “that he had bought the pick of a large' lot of cattle, about 100 head,” and that “he would ship them to Painter & Son.” represeritatioii was substantially true when the money and check were obtained on the 25th of November. At that time the cattle had been contracted for by Snyder with Glasscock, and a part of the consideration paid. This representation when made on the 23d, or 24th, of November, was false. On the 25th, it had become true. Is a pretense, which was false when made, within the statute, if true when the property is parted with? We think not. The pretense employed is only the means by which the offense is perpetrated. .The substance of the offense consists in the obtaining of the property, and thereby with a fraudulent intent depriving the lawful owner of that which properly belongs to him. If a party by his own acts makes the false representations good, before obtaining the property, there is no consummation of the crime; and there is no criminal attempt, for it follows, that, when there is a change of purpose on the part of a person seeking to obtain property by a false pretense, before any other wrongful act is committed than the making of the false pretense, the crime of the attempt is taken away. The fact that in this case, Snyder never abandoned the scheme to defraud some one, does not militate against the conclusion, that the pretense must be false in fact when the property is parted with. How can it be said that Hood relied upon a false representation as to the purchase of the cattle when he delivered the money and check, if at that time the representation had become true? No property was parted with by Hood on the 23d, or 24th. The representation then made by Snyder as to buying the cattle, was true, on the 25th, and before he obtained the money, or check; and if he is to be held for the commission of a crime by obtaining property under false pretenses, it must be upon some other representation than the representation on the 23d, or 24th, as to having “bought the pick of a large lot of cattle.”
As to the representation of Snyder, “that he would ship the cattle to Painter & Son at Kansas City,” we follow authority in holding such statement is not a statutory false pretense. The false pretense relied upon to constitute an offense under the statute, must relate to a past event, or t° some present existing fact, and not to something to happen in the future. A mere promise is not sufficient. Rex v. Young, 3 Term R. 98; Rex v. Lee, L. & C. 309; Commonwealth v. Drew, 19 Pick. 179; State v. Evers, 49 Mo. 542; Dillingham v. State, 5 Ohio St. 280; Burrow v. State, 12 Ark. 65; State v. Magee, 11 Ind. 154; The State v. Green, 7 Wis. 676. The representation that the cattle would be shipped to Painter & Son, related to an event which was thereafter to happen. It was a promise or assur anee, of a future transaction.- Upon the evidence, we are therefore compelled to say, that as the only offense charged in the complaint, and in the warrant against Snyder, was the obtaining of the $1,500 in currency, and the certified check of $1,500 on November 25th, as 'therein stated, and as the order of commitment was issued on the finding of the examining magistrate, that there was probable cause to believe Snyder “guilty as charged in the complaint and warrant,” there is no legal authority for holding the petitioner in custody, and he must be discharged. It is perhaps unnecessary to add, that in point of moral turpitude Snyder is as guilty in obtaining the property of Hood & Kincaids on the 25th of November on a false promise, if such be the fact, as if such pretense was within the statute. The criminal law however cannot reach the perpetrator of every fraud. “The statute may not regard naked lies as false pretenses.” It has been well said, “The operation of the wisest laws is imperfect and precarious; they seldom inspire virtue; they cannot always restrain vice; their power is insufficient to prohibit all that they condemn, nor can they always punish the actions which they prohibit.” We have intentionally abstained from commenting upon the transactions of the 28th of November, when Snyder is alleged to have- obtained a certified check of $850, because there is nothing in the proceedings before the magistrate, or in this court, to prevent the petitioner from being arrested, if any complaint is made, therefor. Whether a crime has been committed in that regard, and whether there is probable cause to believe the petitioner guilty thereof, may be a matter of future examination and judicial determination. In this investigation, the testimony of facts, subsequent to the 25th, was received by us only to explain the transactions of the 25th of November, and to shed light upon the intent of Snyder.
That the force of this decision may not be misconstrued, we may properly say, that the evidence shows there was no collusion between the firm of Painter & Son, and Snyder, and that the purchase of the cattle by Snyder of Glasscock on the morning of the 25th was made in good faith. It is evident however, that Snyder never intended to ship any of the cattle to Painter & Son, and all his statements to that effect were in pursuance of his scheme to successfully carry out his fraudulent purpose.
Let the petitioner be discharged.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
In May 1869, this court in the case of Hume v. Watt, 5 Kas. 34, decided that when the indorser of a bill of exchange or promissory note resided in the same city or town where the protest thereof was made, notice of the dishonor of the bill or note must be personal, or by leaving it, if the party be absent, at his dwelling-house, or usual place of business. In 1871 the legislature attempted to change this rule, or rather to avoid this decision, by passing an act entitled “An act concerning notaries public,” approved March 2d 1871, (Laws 1871, p. 270,) by the first section of which it is provided, that “services of notices of protest on parties residing in the town or city where such protest is made, may be by depositing such notice in the post-office, in a sealed envelope, addressed to such person, with the postage prepaid.” The question is raised in this case, that the legislature was not successful in its attempt, because it is alleged that said section 1 of said law, (ch. 110, Laws of 1871,) is in conflict with that part of section 16 of article 2 of the constitution of the state, which prescribes, “No bill shall contain more than one subject, which shall be clearly expressed in its title.” The.facts in the case are, that on May 1st 1875, John McDowall and Alex. Hughan made their promissory note to James Rayburn, whereby they agreed to pay to Rayburn or order, ninety days after date, fifteen hundred dollars, payable at the office of the Chase County Bank, in the city of Cottonwood Falls, in Chase county, Kansas, with interest at the rate of twelve per cent, per annum after maturity, and reasonable attorney-fees if collected by suit. The payee of the note, for a valuable consideration, and before its maturity, indorsed the note and delivered it to C. A. Britton, who for a valuable consideration indorsed the same and delivered it to plaintiff in error, who afterward brought suit thereon against the makers and indorsers. Brit-ton answered separately. The case was tried by the court, a jury being waived, and in addition to the general finding for the defendant Britton, the court also made special findings of fact, and conclusions of law.
The question of law presented by the findings of fact is, whether the service of notice of protest by placing it in an envelope addressed to C. A. Britton, Cottonwood Falls, Kansas, and deposited, duly stamped, in the post-office, at said' Cottonwood Falls, is sufficient notice to bind the said Britton as an indorser, who lived in the same town at date of protest. If section 1 of the law of 1871 above quoted is valid, the service of the notice of protest made was sufficient; if said section is in conflict with §16 of article 2, of the constitution, then there was a want of legal notice, in the absence of any-finding that the indorser actually received such notice on the same day, or the next after the note was dishonored. This court has held that the constitutional provision, that “no bill shall contain more than one subject, which shall be clearly expressed in its .title,” is mandatory. Comm’rs of Sedgwick Comity v. Bailey, 13 Kas. 600; and hence our examination of the question presented will be to ascertain whether said section is clearly expressed in the title of the act. The act, as above stated, is entitled, “An act concerning notaries public.” The first question which naturally suggests itself in the determination of this matter is, Whose duty is it to give the notice of protest? The doctrine is well settled, that any party to the instrument, whose liability is fixed, or who, on the paper being returned to him when he pays it, will be entitled to reimbursement from some prior party, may personally give this notice. Thus, if the holder duly notifies the. sixth indorser, and he the fifth, and he the fourth, and so on, to the first, the latter will be liable to all the parties. (2 Daniel on Negotiable Instruments, 42.) It is equally well settled, that the notice given by an agent is the same as if by the holder himself; and it may be in the agent’s name, or in the name of another party. The notice is usually in writing, but it is sufficient if it be given verbally. Hence, as service of notice of dishonor can be given without the intervention of a notary public, after the protest is made, by any person who stands in any relation to the paper as above stated, we cannot .conceive how it can be claimed that said section can apply to all notices of protest served through the post-office on parties residing in the town or city where such protest is madel The title of the act is limited to “notaries public.” No reference is made therein to “notes,” or “bills,” or the “service of notices of protest.” Holders, indorsers, or their agents (not notaries public) giving notices of protest, are not included in any part of the title of the act. As to all notices of protest given by persons not notaries public, in accordance with the provisions of said section, without further argument, we think it will be conceded that they are insufficient to charge the parties on whom it is intended to fix liability, unless actual notice is shown. As to this class of notices, section 1 is absolutely void, as being in conflict with section 16 of article 2 of the constitution of the state. Indeed, the learned counsel for the plaintiff in error almost admit this conclusion in their brief, as they state, “It seems to us that the most that can be fairly claimed (if anything) on the other side would be, that said section 1 would only be unconstitutional (if at all) in so far as applied to validate notices served in this way by persons other than notaries public.” Under this conclusion the usefulness or importance of said section 1 is almost entirely destroyed, if by any reasoning it could be held valid as to notices of protest served, as therein provided, by notaries public.
The next question for consideration is, in what capacity does a notary public act in giving notices of protest? Is it an official act, or does he simply act as the agent of the party for whom he makes the protest? By the law-merchant the notary to whom the bill or note has been givén for presentment, may, as the agent of the holder, give notice; but it is no part of his official duty. Burk v. McKay, 2 How. 66; Harris v. Robinson, 4 How. 336; 2 Daniel on Negotiable Instruments, § 991, page 45; 1 Parsons on Notes, ch. 12, § 5, page 506. Unless then the statutes of our state have conferred upon notaries public this official duty, it would be a misnomer to say that “an act concerning notaries public” clearly expresses in its title the manner of serving notices of protest, or even directs by its title an examination of the provisions of the act to ascertain anything in relation to such service. The duties and powers of notaries public in relation to bills and notes are stated in section 6, ch. 71, Gen. Stat. 1868, page 597, and are as follows:
“Sec. 6. Notaries public shall have authority * * * to demand acceptance, or payment, of foreign and inland bills of exchange, and of promissory notes, and protest the same for non-acceptance, or non-payment, as the case may require, and to exercise such other powers and duties as by the law of nations and commercial usage may be performed by notaries public.”
Section 18, ch. 14, Gen. Stat. 1868, page 117, provides, “that a notarial protest shall be evidence of a demand and refusal to pay a bond, promissory note, or bill of exchange, at the' time and in the manner stated in such protest, until the contrary is shown.” Technical words, by our statute, must be construed according to their peculiar and appropriate meaning; and the word “protest,” has a well-known and well-defined signification in law. . It means only, the formal declaration drawn up and signed by the notary. It is stated by Daniel, vol. 2, § 929, p. 4, of his work on negotiable instruments, “that a protest is the solemn declaration on the part of the holder against any loss to be sustained by him by reason of the non-acceptance, or even non-payment, as the case may be, of the bill in question; and the calling of the ■ notary to witness that due steps have been taken to prevent it.” Burrill’s Law Dictionary defines it as follows:
“A formal statement in writing, by a public notary, under seal, that a certain bill-of exchange or promissory note (describing it) was on a certain day presented for payment, or acceptance, and that such payment or acceptance was refused. Whereupon the notary protests against the parties for the loss or damage which may arise therefrom.” 2'Burrill, 349.
A like meaning is given in Bouvier’s Law Dictionary, vol. 2, § 3, page 390. The section of the statute above quoted, declaring that a notarial protest is evidence only of a demand and refusal, is in accordance with the legal definitions of protest, and additional authority that the protest does not include the giving of the notices thereof; and as a necessary conclusion, that shell act is no part of the official duty of the notary. If the notary gives the notice, he is the mere agent of the holder or party authorized to give the notice. Pinkham, Executrix, v. Macy, 9 Metcalf, 176; Smedes v. Utica Bank, 20 Johns. 372; Crawford v. Branch Bank, 7 Ala. 205; Shed v. Brett, 1 Pick. 401; Fulton v. McCracken, 18 Md. 528; Renick v.- Robbins, 28 Mo. 339. And so held by this court, at the present term, in Couch v. Sherrill, ante, page 624. Again, section 5 of the act respecting notaries public (Gen. Stat. 1868, page 597,) prescribes that “every notary shall provide a notarial seal, containing his name and place of residence, and he shall authenticate all-his official acts,'attestations, and instruments therewith.” If the counsel for plaintiff in error are right in their conclusion, that the term “protest,” as used in section 6 of the notary act, above quoted, includes not only presentment and demand, but also notice of dishonor, then such notices should be authenticated by the seal of the notary. Such is neither the practice, nor does the law require it. Indeed, we do not think any one will seriously contend that the notary, when giving written notice of dishonor of a bill or note, should authenticate such notice with his official seal. It is not an official act. No seal is necessary. Nor need the notice purport to be issued under the official seal of the officer. From these deductions we arrive at the result, that a notary public in giving a notice of protest of paper is not acting officially, and only performs the act as the agent of the party having the right to give such notice, and therefore that section 4 of ch. 110, laws of 1871, is unconstitutional and void, as the matters therein contained are not expressed in the title to the bill, as required by § 16 of article 2 of the constitution of the state.
It is argued in the brief of counsel of the plaintiff in error, that it is usual and customary for notaries to give the notice of dishonor, and as there is a fee of ten cents provided by the law of 1875, ch. 99, for notaries public for each notice of protest, (which was formerly fifty cents, Gen. Stat. § 9, page 480,) therefore notaries should be held as officially empowered to act jn that respect. In reply we answer, that while it is true that usually such notices are thus given, it is not infrequently the case that the notary makes out the notices, and sends them to the holder, or the bank from which he receives the note for protest, and thereupon the holder himself, or the officers of the bank, make due service of the notices of dishonor. In all cases, where the residence of the indorsers to the paper are unknown to the notary, this is done. If the holder, or other party interested, wishes the notary to give the notice as his agent, the statute fixes the compensation, but does not thereby make the giving such notice the official act of the notary; nor do we think the frequency with which notaries give notice of dishonor of paper a sufficient reason for holding the-title of the act as expressive of the subject-matter in section 1, as the act of giving the notice is one of agency, and not a notarial one. A title relating to agents would be more expressive of section 1 than the one adopted by the legislature; and yet such a title would be insufficient within the meaning of the constitution. We hold that the cases cited, of Turner v. Rogers, 8 Ind. 140, and Fisher v. State Bank, 7 Blackf. 611, are not in point, as the certificates of notaries in that state are evidence -of the facts therein set forth, and the laws of Indiana differ from ours in this and other respects.
Neither are we convinced that we should, for fear of causing disastrous results, as counsel who ask us to reverse the action of the court below suggest, reach a idifferent conclusion than we have as to the constitutionality of said section 1. We do not think that the effect of this decision will be very calamitous in the state. The section under ban, could not possibly apply to other notices than those given by notaries, by any stretch of judicial power; and in no future case will this decision have any effect to discharge an indorser, or other party liable to be charged on a bill or note, by protest, and notice thereof, where the actual receipt of such notice, within the proper time, can be shown. We cannot presume that parties who have received such notices as the one sent in this case, will under oath deny the fact. In the case at bar, on the trial of the same, it does not appear that any effort was made to show that Britton actually received the notice, and no finding is made, or asked for by any party, thereon. Whether the circumstances of the case prevented such proof, or whether it was not thought necessary, we are not informed. Hereafter when cases of this exact character are tried, we suppose an attempt, at least, will be made to show the actual reception of the notice of dishonor; and when a notice, placed in a sealed envelope, duly addressed, with the postage prepaid, is ' deposited in the post-office of the town or city where the party to whom it is directed resides, but little difficulty ought to be experienced in obtaining sufficient evidence to support a finding that such person actually received the same. In further opposition to the doctrine advanced by counsel for plaintiff in error, that this court ought, if possible, to hold said section 1 constitutional, to conserve important pecuniary interests resting thereon, we reply, that it would be favoring pernicious legislation to say that notices of dishonor given by one person, in one way, are good, and like notices given in the same way by another person who has the same right to give them, are bad. Such a ruling would lead to “confusion worse confounded.” The legislature never intended to make this distinction in the manner of serving notices of protest.
The judgment will be affirmed.
"Valentine, J.:
The “subject” contained in section 1 of the “act concerning notaries public,” (Laws of 1871, page 270,) is not only not “clearly expressed” in the title of said act, as required by the constitution, (art. 2, §16,) but it is clearly, as I think, not expressed in the title in any manner whatever. Therefore said section 1 has no force. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question presented for our consideration in this case is, whether the court below erred in setting aside a certain sheriff sale. Indeed, about the only question is, whether a sheriff can legally and properly sell real estate on execution after the return-day of the execution, añd more than sixty days after its date and after it was issued. The execution in this case was issued and dated -November 24th 1874, and made returnable in sixty days, and the sale was made on January 27th 1875. Section 469 of the civil code provides that, “The sheriff or other officer, to whom any writ of execution shall be directed, shall return such writ to the court to which the same is returnable, within sixty days from the date thereof.” (Gen. Stat. 720.) And §472 of the same code provides among other things that, “ If any sheriff or other officer * * * shall neglect to return any writ of execution to the proper court, on or before the return-day thereof, * * such sheriff or other officer shall, on motion in court, and two days’ notice thereof, in writing, be amerced,” etc. (Gen. Stat. 721,722.) And all the authorities upon the subject seem to indicate that no valid act can be done by an officer under an execution after the return-day thereof, except to return the writ. Vail v. Lewis, 4 Johns. 450; Haggarty v. Wilber, 16 Johns. 287; Devoe v. Elliott, 2 Caines, 243; Barnard v. Stevens, 2 Aikins, 429; Matthews v. Warne, 11 N. J. L. (6 Halstead) 29; The State v. Kennedy, 18 N. J. L. (3 Harrison) 22; Crews v. Garland, 2 Munford (Va.) 491.
We think the sheriff had no authority to sell said property at the time he sold it, and therefore that the sale was at least voidable, if not void. The property probably did not bring as fair a price as it would have brought if everything had been regular and valid. The judgment-debtor, the defendant in error in this court, whose property was sold, attacked said sale in a direct manner, and at his earliest opportunity, by moving the court to have the sale set aside, and therefore if the sale was only voidable we think he had a' right to have it set aside.
The order of the district court will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This was an action by Goldie to foreclose a mechanic’s lien. M. W. Delahay was the' owner, J. P. Taggart the contractor, and Goldie claimed as sub-contractor. The latter made Taggart, M. W. Delahay, and Louisiana/ Delahay, parties defendant. He recovered a personal judgment against Taggart, and a portion of this amount was ad judged a lien upon the premises. A decree of foreclosure and sale was entered against all the defendants. Taggart is not here complaining of the judgment, and of course we need not inquire whether any error was committed against him. The two Delahays are alone plaintiffs in error, and they present several matters for our consideration. Some of them have been already passed upon in other cases, and we need only refer to them here.
I. The only allegation in the petition against Mrs. Delahay is in these words: “And said plaintiff further says, that the said Louisiana Delahay and the said J. P. Taggart claim ari interest in this controversy adverse to the plaintiff, that the extent of such interest, if any, to this plaintiff is unknown, and that they be compelled to set up their interest, if any.” She filed no answer. Upon this a decree was entered barring her of all interest in the premises. This was erroneous. Short v. Nooner, 16 Kas. 220.
II. The statement for the lien was verified, not by the claimant, but by an agent. Counsel contend that, inasmuch as verification by an agent is not in terms authorized by the lien.law, and as the lien law is in derogation of the common law, no such verification is sufficient. If the statute had prescribed by whom the verification should be made, it might well be contended that such provision was exclusive. But the statute simply requires the filing of a statement, “verified by affidavit.” Laws 1872, p.296, §3. It would be adding to the statute to hold that only the claimant’s affidavit was sufficient. In all the instances cited by counsel in which express authority is given to agents and attorneys to make affidavits, the principals are likewise expressly named. The omission here is certainly significant. In Ohio, under a statute which provided that the claimant should file a statement “after making oath thereto,” a verification by an agent was held sufficient. Williams v. Webb, 2 Disney, 430; Dorman v. Crozier, 14 Kas. 224.
III. Again, it is claimed that as Goldie was a lumber dealer, who had no contract with Delahay, but simply sold the lumber for a gross sum to Taggart, the contractor, he could acquire no lien. This is a mistake. Any person furnishing material under a sub-contract with the contractor is given by the statute a lien. It must be furnished under a contract, and for the purpose of being used in the building, and must actually be so used. Weaver v. Sells, 10 Kas. 609. The language used in the case of Clark v. Hall, 10 Kas. 80, must be understood in connection with the question therein presented. It was not contended that a lumber dealer furnishing lumber to a contractor could not under the statute acquire a lien. But the claim of the plaintiff was, that he had sold the lumber directly to the lot-owner, and claimed a lien in consequence as an original contractor, while the defendant himself insisted that he had never himself purchased any lumber from plaintiff, that he had contracted with one McFall to furnish the material and do the work, and that McFall had purchased the lumber, and that he had paid McFall in full except about $80, which he claimed as damages. Upon this was the dispute. If McFall made the purchase, it was primarily McFalFs debt, and a subsequent promise of Hall to pay was a promise to pay the debt of another. So also, Clark could not acquire a lien as contractor, but only as a sub-contractor. And a mere subsequent promise by the lot-owner to pay the debt, would not change a sub-contractor into a contractor, or of itself give a lien upon the building.
IV. Finally, it is claimed that as nothing was shown to be due and unpaid by Delahay to Taggart at the time of the filing of the lien, no recovery could be had against the premises. But the contract between Delahay and Taggart provided for the payment of many times the sum now claimed by Goldie; and, as heretofore decided under the lien law of 1872, the lien of the sub-contractor is limited only by the amount contracted to be paid the contractor; and all payments made to the contractor prior to the expiration of sixty days after the completion of the building are at the risk of the owner. Shellabarger v. Thayer, 15 Kas. 619; Shellabarger v. Bishop, 14 Kas. 432. This may be, as counsel earnestly contend, a very harsh provision; but that is a question for the legislature, and not the courts. These are all the matters we deem it necessary to notice.
The judgment of the district court as to M. W. Delahay will be affirmed; as to Louisiana Delahay it will be reversed, and the case remanded with instructions to render judgment in her favor for costs. The costs of this court will be divided between Goldie and M. W. Delahay.
All the Justices coúcurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The following statement of facts is from the brief of the plaintiffs in error
“This case was originally commenced before a justice of the peace. The plaintiff below filed a bill of particulars, alleging in general terms that it claimed judgment against the defendants for $218, and the further sum of $25.98 for damages, protest-fees and attorney-fees, with interest, etc., upon a promissory note, a copy of which was set forth in a certificate of protest attached to and filed with the bill of particulars. Said note was dated March 5th 1874, was made by David Stanley, payable to order of E. D. Rose, due thirty days after the date thereof, and contained a stipulation to pay five per cent, as attorney-fees if suit be instituted on the note — negotiable and payable at the Farmers’ Bank, to H. J. Ransom, cashier, and was indorsed by E. D. Rose. The certificate of protest showed that demand for payment was made, and the note protested for non-payment April 8th 1874. The defendants below did not appear at the trial before the justice, and judgment was rendered against them for the amount claimed. Defendants appealed, and the cause came on for trial in the district court at the October Term 1874. The defendants asked leave to file an answer, verified by affidavit of Stanley, denying that plaintiff was a corporation — which was refused by the court, and the ruling' excepted to. At the trial in the district court, defendants moved to exclude all testimony, on the grounds that plaintiff’s bill of particulárs did not state facts sufficient to constitute a cause of action —which motion was overruled, and the ruling excepted to. Plaintiff then offered in evidence the certificate of protest arid copy of note. Defendants’ objections to the evidence overruled, and the ruling excepted to. Plaintiff then called as a witness, "W. H. Dodge, who testified that he wTas a notary public, and demanded payment of the note on the 8th of April 1874, and on the same day delivered to Rose a notice of the demand ‘just as stated in his certificate of protest.’ All of his evidence objected to; objections overruled, and the rulings excepted to. Plaintiff then called as a witness, H. J. Ransom, who testified that he was cashier of the Farmers’ Bank ; that Stanley had no money in the bank to pay the note, and that on the last da3r of grace he demanded payment from Stanley. Objections to this evidence overruled, and the rulings ex cepted to. Ransom also testified that he made no demand on Rose, and never notified him that the note' was not paid. The judgment of the district court was in favor of plaintiff below for $226.25 debt, $15.08 notarial fees and protest damages, $10.90 attorney’s fees, and costs of suit. New trial refused, and defendants excepted.”
Upon this statement of facts, plaintiffs in error (defendants below) contended that the judgment of the district court should be reversed, for the reasons following — quoting from their brief:
“Ist.-The district court erred in refusing to allow the defendants below to file their answer, verified by affidavit of Stanley, alleging that plaintiff was not a corporation. Although plaintiff below did not in terms allege that it was a corporation, yet it sued in an appropriate corporate name, and in such case there is an implied averment that it is a corporation. (41 Barb. 571.) The second defense offered would therefore constitute a perfect defense.
“2d.-The bill of particulars filed by plaintiff below does not state facts sufficient to constitute a cause of action against E. D. Rose, one of the defendants below; and the district court erred in overruling the motion to exclude all evidence at the trial. The last day of .grace of the note was the 7th of April 1874. The certificate of protest attached to, filed with, and treated as a part of the bill.of particulars, states that a demand was made on the 8th of said April, and this is the only intimation contained in the bill of particulars, or the exhibits, that a demand was ever made.
“3d.-The court erred in admitting in evidence the notarial certificate of protest! The certificate states in effect that the indorser was notified that a demand had been made on the 8th of Aprils one day after the last day of grace. Such a demand is insufficient, and a notice showing that presentment was not made on the proper day, does not charge the indorser.
“4th.-The district court erred in receiving the testimony of H. J. Ransom, showing that he made a personal demand from Stanley on the last day of grace. The plaintiff belo.w having alleged in its bill of particulars that the demand was made by the notary on the 8th of April, it was bound by the case made by its pleadings.
“5th.-The judgment is not supported by the evidence. No evidence was offered in the district court to prove that defendant in error is a corporation. No notice was given to Rose that a demand was made on Stanley on the last day of grace. The notice of non-payment, to charge an indorser, must show that the presentment was made at the proper time. (4 Denio, 163; Edwards on Bills, 591.)
“6th.-The district court erred in rendering j udgment against plaintiff-in-error Rose, as a principal debtor. The evidence of Ransom shows that Rose signed the note as surety for Stanley. ('Gen. Stat. 720, §470.)
“ 7th.-The court erred in allowing protest fees and damages. The protest being illegal, for reasons already given, no protest fees or damages could properly be allowed. (9 Kas. 640.)
“8th.-The district court erred in rendering judgment for an attorney-fee. The stipulation contained in the note to pay five per cent, attorney-fee, is usurious and void. (10 Ohio, 378.)”
The above and foregoing is taken from the brief of plaintiffs in error. The note sued on reads as follows:
“Holton, Kansas, Maech 5th 1874. $218.00. Thirty days after date, I promise to pay to the order of E. D. Rose two hundred and eighteen dollars, and five per cent, attorney’s fees if suit be instituted on this note, value received, and negotiable and payable at the Farmers’ Bank, to H. J. Ransom, cashier. David Stanley.”
“Due April 7th, 1874.” -
Indorsed, “E. D. Rose.”
We shall now reply to the points made by the plaintiffs in error in their brief. Section 122 of the justices act, as amended in 1870, (Laws of 1870, page 184, §7,) provides among other things, that any case appealed from a justice’s court to the district court “shall be tried de novo in the district court upon the original papers on which the cause was tried before the justice, unless the appellate court, in furtherance of justice, allow amended pleadings to.be made, or new pleadings to be filed.” Now we suppose it can scarcely be claimed that it was necessary for the court below “in furtherance of justice” to allow the plaintiffs in error (defendants below) to file their said answer. First, It was not necessary for any purpose for which they may have wanted to use it. If it had been filed, it would not have given them any new or more extended rights or privileges. In a justice’s court the existence of a corporation may be put in issue by the defendant without a denial under oath, (Gen. Stat. 794, §84,) and even without a written denial of any kind. (Gen. Stat. 791, §§ 71, 72, 73.) And on an appeal to the district court, the parties lose no rights, and gain none. Each party, without filing new pleadings, may prove any cause of action or defense which he might have proved before the justice, and each may introduce any evidence which he might have introduced before the justice. Therefore, the defendants in this case could have introduced on the trial any evidence to prove any defense which they might have had, just .as well without said answer as with it. (German v. Ritchie, 9 Kas. 106, 111; Sanford v. Shepard, 14 Kas. 228, 231.) Second: But even if said answer would have been of any benefit to the defendants, still it would have been against justice, instead of being “in furtherance of justice,” for the court to have allowed the defendants to file it.' After the defendants got their money from said bank, and acknowledged the existence of,the bank on the face of their note, and after being sued by the bank on the note in a justice’s court, and judgment rendered against them, and after they appealed to the district court, and then waited until the case was called for trial in the district court before attempting to set up any such defense, and even then not making the slightest showing why they had been so long in default, it would not have been “in furtherance of justice” to have allowed them to file any such answer. It would seem that the bank had sufficient capacity to loan them the money, and they should not now attempt to deny its capacity to sue them for it;
II. The second to seventh points, inclusive, submitted by plaintiffs in error, may be-considered together. The demand of payment made by the notary public, and the only demand of which the defendant Rose had any notice, was made one day too late, and was therefore ineffectual, and void. The note became due April 4th 1874. The last day of grace was April 7th. The only demand of which the defendant Rose had notice, was not made until April 8th. It was shown however on the trial, that H. J. Ransom, cashier of the bank, made a demand on the proper day. But of this demand the defendant Rose had no notice. The only notice of any demand ever given to him was a notice'showing that W. H. Dodge, the notary public, made a demand on April 8th. Now we do not think that the defendant Rose ever had any sufficient notice of any sufficient demand, and therefore he cannot be held liable for the payment of said note. And therefore the judgment rendered against him must be wholly set aside and reversed. This decision does not infringe upon that rule of law often enunciated, that mistakes or irregularities not calculated to mislead the indorser, and which he could easily correct by facts within his own knowledge, will not render the notice invalid. Whether the defendant Rose was actually misled, or would be actually injured in this case if he were held liable, is not shown. It must be presumed however that he was misled. Evidently, he would not under such a notice take any steps to secure himself by giving notice to any of the prior indorsers, (if there were any such indorsers,) or by any other means, for evidently he would suppose that the demand itself was so far void that none of the indorsers prior or subsequent could be held as liable by reason of such demand. The following cases, though not directly in point, are to some extent analogous to this case: Ransom v. Mack, 2 Hill, (N. Y.) 587; Walmsley v. Acton, 44 Barbour, 312; Arnold v. Kinloch, 50 Barbour, 44; Wyman v. Alden, 4 Denio, 163; Etting v. Schuylkill Bank, 2 Penn. St. 355; Townsend v. Lorain Bank, 2 Ohio St. 345, 359; Routh v. Robertson, 11 S. & M. (Miss.) 382. The above cases hold that the notice therein given was insufficient. The following cases hold it to be sufficient: Crocker v. Getchell, 23 Me. 392; Ontario Bank v. Petrie, 3 Wend. 456; Journey v. Pierce, 2 Houston, (Del.) 176. In the last three cases the demand was in fact made on the right day, and notice of that very demand was given in due time. But there was a mistake in the date of the notice, making it appear that the demand was made too soon or too late by a day or two. The indoi’ser however was not misled in either 'of the above three cases, and therefore it was held that he was not discharged. In the case at bar, there was sufficient evidence introduced on the trial from which the court could find that the plaintiff was a corporation, and there was no evidence to the reverse.
III. With respect to the 8th proposition of counsel, we do not think that the court below erred in rendering judgment for an attorney-fee. (Tholen v. Duffey, 7 Kas. 405, 409, et seq.; Sharp v. Barker, 11 Kas. 381.)
The judgment of the court below will be reversed as to the defendant Rose, and will be modified as to the defendant Stanley by striking out the sum of $15.08 allowed as “notary fees and protest damages.” In other respects it will be affirmed as to the defendant Stanley.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution for rape. The defendant was convicted, and sentenced, and he now appeals to this court. On the trial it was shown that the defendant made a confession. Whether this confession was voluntary, or not, is the first question presented to this court. The confession was made to one A. J. Phillips, who was at the time a constable, and had the defendant in charge. There is no claim that said confession was made because of anything said or done by Phillips, or in Phillips’ presence. But it is claimed that the said confession was made because of threats, promises, or inducements previously held out to him by one Samuel Walker. The evidence upon this subject is as fol lows. Said Samuel Walker, who was a witness for the state, testified, among other things:
“I was marshal of the city of Lawrence in May 1875. I remember the rape at Mr. Gunn’s, in that month, and examined the premises the next day, and then three or four hours after the examination I saw the defendant. I sent policeman Brockelsby to bring him to me. Nobody said to him anything about this rape that day in my presence. * * * I had him arrested again in eight or nine days, and brought to me at the calaboose of the city by one of the policemen, either Brockelsby, or Schott, I forget which. He was brought into the calaboose where I was sitting, and sat down beside me, and put his hand on my shoulder, and asked me if I had had him arrested for that affair oyer at Mr. Gunn’s. I then told him it would be better for him to make a clean breast of it, and tell me all about it. It is my best impression that I told him, if he would make a clean breast of it, and tell me all about it, I would do all I could to get him out of it. I am not certain that I promised him I would do all I could to get him out of it, but that is my recollection; and I know I did make some such statement as that to prisoners when I was trying to get them to make confession. I know and am certain that I told him that it would be better for him to make a clean breast of it, and tell me all about it. He was then in my custody, in the calaboose of the city of Lawrence, I having charge of him as marshal of the city.”
John Schott, who was the officer who arrested the defendant the second time, and who took him before said Walker, testified on the part of the state among other things as follows :
“Colonel Walker, the marshal of the.city, had me arrest the defendant on this charge, and take him to the calaboose. I then went and got Walker. We went into the calaboose, and Walker had a conversation with the defendant. I was present at the conversation all the time. Walker told him he was arrested for the affair at Mr. Gunn’s, and told him he had better make a clean breast of it, and tell the whole truth about it. I did not hear Walker tell him that if he would make a clean breast of it he would do all he could to get him out of it. I don’t think he told him so. I was present all the-time, and I did not hear him say so. If he had said so, I should have heard it.”
No evidence was introduced concerning any confession made by the defendant to Walker, or in Walker’s presence, and the defendant himself testified in his own behalf that he never made any such confession. Said conversation between Walker and the defendant was at the city calaboose. The defendant was afterward taken to the police court-room, where he was afterward transferred from the custody of marshal Walker to the custody of constable Phillips. Phillips afterward, but on the same day, took the defendant to the county jail. Phillips testified among other things as follows :
■ “I remember when the defendant was arrested. I had some conversation with him after the arrest. I was then on Vermont street, in the city of Lawrence. Nobody was with me but the defendant. I was constable of the city .of Lawrence, and had him' in custody under a mittimus, and was taking him to jail. I had been in the country, and came in from the country, and took him from marshal Walker’s custody at the police court-room, to take him to jail. This was on the first day he was arrested. I understood he had been brought from the city calaboose to the police court-room, where he was turned over to my custody, to take him to jail. After I took him in custody to take him to jail, he asked me to take him to his mother’s, and I was on the way to his mother’s house before going to the jail, when he made a statement to me. The defendant said he hoped he would get justice. I asked him what he had been doing. He said,” etc.; [here follows his confession.]
The defendant seems to have been a man of mature years. He testified for himself; and, although a colored man, he seems to have had sufficient intelligence as not to have been easily overcome by inducements. Taking the whole of the evidence together, it would seem to us that said confession was undoubtedly voluntary. It was eight or nine days after, the offense was committed, and after the defendant was first arrested therefor, before said confession was made. And then the only thing shown to have been held out to induce him to make a confession of any kind, was the language of marshal Walker at the calaboose, that “it would be better for him to make a clean breast of it and tell me [Walker] all about it.” Schott testifies that this was all that was said by Walker. Walker does not say positively that anything further was said; and no one else testifies concerning the matter, except that the defendant himself testifies that he was not actually induced by any means to make any confession. It was some time after these words were spoken before the defendant made said confession; and when he made the confession he was not in the custody or presence of either Walker or Schott, and was in the presence of no one except the officer to whom he made the confession.
The court below refused to give the following instruction to the jury, to-wit: “The jury must treat the testimony of the four witnesses mentioned in the defendant’s affidavit for continuance in the same manner, and to the same extent, as if such witnesses had been present at this trial, and, as sworn witnesses, had given such testimony from the witness stand.” There was no error in this refusal. The statute merely requires that the facts alleged in such an affidavit should be read and treated as the deposition of the absent witnesses; (Gen. Stat. 689, § 317; id. 854, § 210.) And the affidavit in this particular caáe was read in evidence merely upon the agreement of the county attorney that it might be read to the jury merely as the deposition of the said four witnesses.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was a criminal action. The judgment of the justice of the peace was- rendered on a plea of guilty, and the defendant was sentenced and adjudged to pay a fine of $5, and the costs of prosecution, and stand committed to the county jail until the same were paid. The defendant. objected to tbe costs taxed for the county attorney and the justice of the peace for trial of the case, claiming that, as a plea of guilty was entered upon arraignment, no costs could be taxed for a trial. After a motion to retax costs had been overruled, and exceptions taken, the defendant attempted to remove the case to the district court on petition in error. No appéal was taken. The district court reversed the judgment of the justice of the peace as to the action had in overruling the motion to disallow the costs taxed for a trial of the case, and rendered judgment for defendant for said fees of $5.50 so taxed against him as costs, and also ordered that defendant as such plaintiff in error recover of the defendant in error his costs taxed at $2.65. Sec. 20 of procedure before justices in misdemeanors provides, “All proceedings, including the mode of procuring, and the grounds for, a change of venue, upon the trial of misdemeanors before a justice of the peace, shall be governed by the provisions of the code of criminal procedure, so far as the same are in their nature applicable, and in respect to which no provision is made by statute.” Sec. 21 of the same procedure authorizes appeals. There is no statute permitting the district court to review on a petition in error the judgment of a justice of the peace in a criminal case. In the case of The State v. Boyle, 10 Kas. 113, this court decided that a criminal case must be removed from the district court to the supreme court on appeal, and not on petition in error.
As all proceedings upon the trial of misdemeanors before a justice of the peace are governed by the provisions of the code of criminal procedure, so far as applicable, unless different provision has been made by statute, and as appeals only are authorized in criminal trials before a justice of the peace, we conclude the defendant could not have the judgment of the justice of the peace reversed by the district court on a petition in error. As the district court had no jurisdiction of the cause except on appeal, and as no appeal was taken, the action of the district' court was erroneous. The case of The State v. Menhart, 9 Kas. 98, referred to by counsel of appellee to sustain the judgment of the district court, is not authority, as in that case the jurisdiction of the district court was neither questioned nor passed upon.- The judgment of the court below must be reversed.
All the Justices concurring. | [
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•The opinion of the court was delivered by
Brewer, J.:
Appellant was convicted in the district court of Leavenworth county of the crime of grand larceny in the stealing of $2,551 in money, and from such conviction appeals to this court. He alleges error in three respects— that the verdict was against the evidence, that improper testimony was admitted, and that the court erred in one of its instructions. The instruction complained of was as follows:
“The jury should not find the defendant guilty because he may have no evidence to show his whereabouts at the time the offense charged is alleged to have been committed, nor to show where or from whom he received any'of the money spoken of by witnesses. Nor will they presume that his character is bad, simply because he has offered no testimony of his good character. But where evidence which would rebut or explain certain facts and circumstances of a grave and suspicious nature, is peculiarly within the defendant’s knowledge and reach, and he makes no effort to procure that testimony, the jury may very properly take such fact into consideration in determining the prisoner’s guilt or innocence. But no inference of guilt is to be drawn from the omission of the defendant and his wife to. testify.”
The special objection of appellant is, of course, to the next to the last sentence. It seems to us that that clause is only a recognition of a well-understood principle of human action. The instinct of self-preservation impels one in peril of the penitentiary to produce whatever testimony he may have to deliver him from such peril. Every mgn will do what he can to shield himself from the disgrace of a conviction of crime, and the burden of punishment. We all know this. We all expect it. Whenever therefore a fact is shown which tends to prove crime upon a defendant, and any explanation of such fact is in the nature of the case peculiarly within his knowledge and reach, a failure to offer an explanation must tend to create a belief that none exists. Will not a man who can, explain that which unexplained will stamp him a criminal and consign him to the felon’s cell? The criminal law furnishes in its rules more than one illustration of this principle. The possession of recently-stolen property casts upon the possessor the duty of explaining such possession. Why? Because the fact and manner of acquiring that possession are peculiarly within his knowledge and reach, and the instinct of self-preservation will compel him to give an explanation thereof consistent with his innocence, if any such explanation exists. Other illustrations might be cited, but it is scarcely necessary. The principle itself rests in the common knowledge and conviction of all. We think the proposition as stated is abstractly correct. Its applicability to the case at bar will be evident when we come to notice the testimony.
A second alleged error is in the admission of testimony. The larceny charged was of a large amount of money. The court permitted testimony tending to show that prior to the larcenv the defendant’s family were in verv strait- ^ J *• ened circumstances, and that subsequently they displayed considerable means; and the court also permitted a creditor of Grebe’s to testify to a conversation had with him after the larceny, in which, to induce payment of his claim, he charged Grebe with having gambled away some hundreds of dollars, and with having had and used considerable money, and referred him to the county records, and to certain parties who were present as having given the information, and a part of which charges only Grebe denied. We think both these items of testimony competent. True, the testimony was not direct proof of Grebe’s guilt. And indeed there was no direct testimony as to who committed the crime. But there were circumstances which might well tend, in connection with other facts, to induce a belief in his guilt. A change in one’s pecuniary condition may often be very significant. At least, it is a circumstance which the jury have a right to consider. So also, conversations with the defendant as to his pecuniary condition, although not had in reference to the alleged larceny, may yet throw light upon such condition, and for the same reason are proper for the consideration of the jury.
. But the principal question in the case is, it seems to us, whether the verdict was against the evidence. As already intimated, there was no direct proof of defendant’s guilt. It was a case of circumstantial testimony. And the question therefore is, whether these circumstances were such as t0 exclude every other reasonable hypothesis than that of defendant’s guilt. Horne v. The State, 1 Kas. 42. After giving the testimony a careful review, we are constrained to hold that the verdict must be sustained. The case against the defendant, it must be admitted, is not as strong as some that are brought here. The inference of guilt does not flow from the circumstances with such absolute and irresistible certainty as we sometimes find. But still the evidence was sufficient. It will be unnecessary to notice it in detail. It will be sufficient to mention a few of the more salient facts. Sass and his wife, from whom the money was stolen, lived across the alley from Grebe, and had so lived for years. They went out to spend the evening with a neighbor, and returning about ten o’clock found the money gone. The chief of police was summoned, and the premises examined. A light snow had fallen during the evening, and a single track was found leading through the back yard and across the alley in the direction of Grebe’s house. About midnight the officer went to Grebe’s' house, and found him in bed. His shoes were on the floor, and still wet. He said he had been out in the evening about seven o’clock to take a glass of beer with a friend. The track was not measured, but it was shown to have been made by a small foot, and that Grebe had such a foot. Prior to this time, Grebe, who was a shoemaker, had been away in Great Bend. While away his family was apparently in great destitution. After his return he remained in Leavenworth for some weeks after the larceny, and then again went to Great Bend. There he paid off a mortgage on a lot he had bought, of $265. His family also seemed to have plenty of money, and his wife displayed' a large pocket-book. The afternoon before he left Leavenworth the second time, for Great Bend, he and his wife were seen to go out in the yard, back of their house, and there dig into the ground with a shovel, and uncover something which his wife picked up and wrapped in her apron and carried into the house. These are some of the more important items of the testimony; and taken in connection with the more minute details, as described by the various witnesses, we hold, as we have stated, that the verdict must be sustained.
It may not be out of place to state in this connection, that we have been informed that since the trial Grebe was called as a witness in a civil suit brought for this money, and in that admitted his connection with the crime here charged, while at the same time implicating others in the offense.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The plaintiff commenced this action in a justice’s court by filing the following bill of particulars:
{Title, and Court.) “The plaintiff complains of the defendant, that the said defendant did upon the 10th of March 1870, at the city of Lawrence, Kansas, lend to the said plaintiff the sum of twelve hundred and thirty-three and 70-100 dollars, for which the said defendant drew and caused to be signed by the said plaintiff a note'of thirteen hundred dollars, payable to him the said defendant eight months after date, with interest at twelve percent, per annum thereon, which said note of $1,300 and interest, amounting to the sum of fourteen hundred and four dollars was paid by said plaintiff to the said defendant on the 7th of ISjovember 1870, in another note since paid on execution. That the difference between the face of said note of thirteen hundred dollars, and. the money actually received at that time, to-wit,-sixty-seven dollars and thirty cents, was unlawful and usurious interest, by the taking of which he the said defendant forfeited to the said plaintiff all the interest on the above-mentioned sum lent, amounting to one hundred and seventy-one and 30-100 dollars, for which said sum of $171.30, and interest thereon from the 7th of November 1870, the plaintiff asks judgment against the defendant.
“L. W. Hover, Plaintiff:’
Afterward the case was taken on appeal to the district court, where it was again tried on said bill of particulars. The ease was tried by the district court without a jury. No evidence was introduced on the trial by either party, but both parties agreed that the facts set forth in the foregoing bill of particulars were true. Upon this agreement the court below rendered judgment in favor of the defendant and against the plaintiff, and the plaintiff now brings the case to this court for review.
It will be seen that the only question in this case is with regard to the sufficiency of the facts set forth in said bill of particulars. And preliminary to a decision of that question, we would say, that the bill of particulars in this case is not aided by any evidence, or by any finding, or verdict, nor by the judgment of the court below. On the contrary, the finding and judgment of the court below are against the sufficiency of said bill of particulars. And all presumptions are in favor of the correctness of the decision of the court below. There has nothing transpired in this case to cure any of the defective allegations of said bill of particulars, and hence we must give to said allegations no more force or weight or value than they are justly entitled to. And this indeed is also true with respect to the bill of particulars taken as a whole.
Let us now examine said bill of particulars, and the facts set forth therein, for the purpose of determining their sufficiency. It seems that on March 10th 1870, the plaintiff, in consideration of $1,233.70 in money, and $66.30 usurious interest, gave to the defendant his (the plaintiff’s) promissory note for $1,300 due in eight months, and drawing interest at the rate of twelve per cent, per annum. This note seems to have been payable to the defendant alone, and was therefore not negotiable. On November 7th 1870, (a few days before said note became due,) the plaintiff gave another note to defendant in lieu of the first-mentioned note. This second note was for $1,404, the exact amount of the first note with the interest thereon.- Whether this second note was to draw interest or not, or whether it was negotiable or not, is not shown. Afterward this note was paid on execution, but to whom it was paid, and how much was paid, are not shown. As it was paid on execution, there must have been a judgment previously rendered against the plaintiff on such note. " But in favor of whom such judgment was rendered, and for what amount it was rendered, and what defenses were set up against the note in that action, we are not informed. If said note was not negotiable, or if it was transferred with notice, or was transferred after due, or was not transferred at all, then the plaintiff in this action had a perfect defense to the note in that action to the extent of all the interest paid or agreed to be paid by him, and he should have set up such defense in that action if he desired to ever claim the benefit of the same. Perhaps however he did set up such defense in that action; ánd if he did, then whether he was successful or not, we have not been informed. If he had set up the defense in that action, then the judgment rendered-against him on said note should have been for just $1,233.70, the amount which he received from the defendant in. this action. Whether the judgment was rendered for that amount, or for more, or less than that amount, we cannot tell. And whether the plaintiff in this action ever paid more than that amount, or whether he ever paid a cent of usurious interest, we cannot tell. The presumptions however are all against the plaintiff, and in favor of the decision of the court below. Under the statutes applicable to this note, “all payments of money or property made by way of usurious interest, or of inducement to contract for more than twelve per cent, per annum, whether made in advance or not, shall be deemed and taken to be payments made on account of the principal; and the courts shall render judgment for no greater sum than the balance found due' after deducting the payments of money- or property made as aforesaid, without interest.” And “ any person contracting, by promissory note, bill of exchange, bond, or otherwise, to receive a greater rate of interest than that allowed by this act, [to-wit, twelve per cent, per annum,] shall forfeit all interest, and shall recover no more than the principal of such note, bill, bond or other contract.” (Gen. Stat. 525, 526, §§ 3 and 4; Jemness v. Cutler, 12 Kas. 500; Ayres v. Probasco, 14 Kas. 175.) Now if the plaintiff in this action did not set up the defense of usury in the action brought against him on said note, then why did he not do so? He has wholly failed to inform us. But whether he did set it up or not, the judgment in that case is a bar to any further proceeding. If he did set it up, then he has already Had an adjudication upon the subject-matter of this action, and he cannot have another adjudication thereon. But if he did not set it up, then he has lost by his own laches his last opportunity of making the subject-matter of his defense available. It is a general rule of law, that where a defendant has a defense to an action, and fails to set it up in that action, he forever loses the same, not only as a defense but also as a cause of action. (See authorities cited in defendant’s brief, and also McLaughlin v. The State, ante, 286.) And this rule of law is applicable to cases of this kind. (Schrappel v. Corning, 10 Barb. 576, 581; Day v. Cummings, 19 Vt. 496; Perkins v. Conant, 29 Ill. 184; Jones v. Kirksey, 10 Ala. 579; Mallory v. Matlock, 10 Ala. 596.) If we were to make a guess with reference to the facts not shown, and which should have been shown in this case, we would guess — that said note was negotiable — that it was not transferred however, that the note was sued on by the defendant in this action — that the plaintiff in this action did not set up the defense of usury in that action — that the judgment was rendered for the full amount of the note, and that the plaintiff in this action paid'that amount; but of course these are only guesses.
The judgment of the court below must be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of tort, brought by a foreign administrator against a foreign corporation for injuries to the plaintiff’s intestate, claimed to have resulted from the negligence of the defendant, and resulting in the death of the plaintiff’s intestate. The judgment of the court below was in favor of the defendant; and the plaintiff now brings the case to this court, and asks to have the judgment of the court below reversed. There are several questions raised in this case, but with the view that we entertain of the case, it will be necessary to decide only one of such questions. That question is, whether the plaintiff upon the trial of the case showed that the defendant was guilty of any negligence or not. There was no evidence introduced on the trial except that of the plaintiff. When the plaintiff rested his case the defendant demurred to the plaintiff’s evidence, and the court below sustained the demurrer. Whether this ruling was correct or not, we think it is the only question which we need to decide. We think the ruling was correct. There was not a particle of evidence, as we read the record, tending to show that the defendant-was guilty of any negligence. The facts would seem to be substantially as follows: The defendant, a corporation of Detroit,'Michigan, was building a bridge across the Missouri river at or near St. Joseph, Missouri. Corbett, the plaintiff’s intestate, was a laborer, assisting the defendant to build said bridge. The Missouri river was at that time and place frozen over. Scaffolds were erected to assist the workmen in building the bridge, and Corbett fell from one of these scaffolds to the ice below, a distance of about twenty-five feet, and was killed. These scaffolds were made from pine boards, or plank, each board being about twelve feet long, twelve inches wide and two inches thick, and resting upon cross-ties, or other supports, about ten feet apart. It would seem that Corbett was standing on one of these boards, and that he stepped down from eighteen inches to three feet, and across horizontally from eighteen inches to three feet, to another board, and that this board broke about the middle and permitted him to pass on through and down to the ice. The board that broke was probably apparently sound and strong, but in fact it had two knots in it which rendered it to some extent weak, and caused it to break. There were plenty of good boards about the bridge with which to make good scaffolds, and which were intended for that purpose. The scaffold in which this board that broke was placed, was made that same morning by Corbett and his co-laborers. We shall now quote some of the evidence. Antoine Shoemaker testified among other things as follows:
“I was near by when Corbett fell off the bridge, and saw him fall. * * * I went down and assisted to pick him up. He was unconscious at that time. I never heard him speak after he fell. There were several hundred plank on the span he fell from. These planks were two inches thick, and from ten to twelve inches broad, and twelve feet long. They were pine planks. These plank were there for the use of the bridge, to walk on, and for any purpose they were needed for. The workmen shifted all these planks, the morning he fell, from one side to the other, where we wanted them. Before they were shifted they had been used for the sole purpose they were used after they were shifted. The plank broke near about the middle between the two ends. There was a knot in it where it broke. The knot was about three inches from one edge of the plank, and was from one-and-a-half to two-and-a-half inches broad. * * * Corbett and I were common laborers, doing the same kind of work. We did the same kind of work putting up the first span. At the time of the accident we had just about got the second span done. Our work was mostly heavy work. We belonged to the gang of men who moved the plank for the workmen. The staging had been shifted by us about two hours previous to the accident. We had been using the planks for the same purpose up to the time of the accident. This staging was three planks wide. It was the same staging we used all the time, moving it ahead as the work advanced. * * * When we got the first span done we moved the staging forward to the second span, and the loose material to whatever place we wanted it. This was dangerous work we were at. Each man had to look out for himself. Some parts of the work were more dangerous than others. No man was made to go anywhere about the bridge where it was considered dangerous, so far as I know. If a man was ordered to go, and he thought it was dangerous, and would not go, some one else was asked to go. Sometimes I was asked to go out to places which I considered dangerous, and I would object to going, and the boss would ask some one else. Mr. Corbett helped to shift and put the staging in place that very morning, from another place on the bridge. The staging rested on the floor beams under the track of the bridge. * * * All the time we were on the bridge the bosses were urging the men to be careful. The bosses took pains not to have any of the men hurt. All the time I worked on the bridge, Corbett was the only one who met with an accident at this kind of work. John Wells, my foreman, was a very careful man, and several times went where I refused to go on account of the danger. Mr. Patton, our superintendent on that work, was a very careful man.”
Washington Bennett testified among other things as follows : ■
“I saw Corbett fall from the bridge. * * * I tested some of these planks before they were put on the bridge. It must have been about one week before this accident that I tested the planks which were tested by me. I tested them on the ice under the second span. I was at work near one whole day testing plank. * * * At the time of the accident I was thirty-two years old, and weighed 232 pounds. I was about as stout and heavy as any man at work on the bridge. These plank I tested were brought from the first span. I understood they had been tested before they were used on the first span. The object of testing them before putting them on the second span, was, to see if they had suffered any damage while being used on the first span, before they were again used. The instruc tions of the foreman were, not to use auy planks except those that were proven sound by actual test. The officers of the company seemed to be anxious about these plank, that none except good and sound ones should be used. I heard Mr. Robinson and Mr. Patton at different times say to the men who were putting up plank, not to put up any except good ones. I do not know whether the plank that broke was one of the planks I tested or not.”
There was no evidence conflicting with the foregoing in any substantial particular. There was no evidence tending to show that any one knew, or even suspected, before said plank broke, that it was in the slightest degree defective. And the foregoing evidence is all the evidence that tends to show how said defective plank came to be placed where it was placed. It was evidently placed there by Corbett himself, or by some one of his co-laborers. And there is not a particle of evidence that tends to show that the defendant was guilty of the slightest negligence in the employment or retention of any of its agents or servants. Indeed, no negligence of any kind has been shown in this case on the-part of the defendant, and it is doubtful even, whether any negligence has been shown on the part of any one. But even if any such negligence has been shown, it was on the part of the said intestate himself, or of his co-laborers, and therefore the plaintiff cannot recover in this case.
The judgment of the court below will be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting-in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin for a horse, brought by Safford against Converse. The case was tried by a jury, who found that the plaintiff was entitled to the horse, that the horse was worth fifty dollars, and that the plaintiff was damaged ninety-three cents by reason of the wrongful detention of the horse by the defendant. Judgment was rendered in favor of the plaintiff for a return of the- horse, or in case a return could not be had, then for $50, the value of the horse, and also for said ninety-three cents, and for costs. The defendant brings the case to this court. He claims that the court below erred, 1st, in overruling the defendant’s demurrer to the plaintiff’s evidence; 2d, in over-' ruling defendant’s motion for a new trial; 3d, in rendering judgment for $50, instead of for $32.45 and interest.
I. The plaintiff’s evidence, as well as his pleadings, showed that he claimed to be entitled to the horse by virtue of a chattel mortgage executed to himself by the defendant to secure the payment of a promissory note for $32.45. The mortgage was introduced in evidence, and appeared to be valid upon its face, and to entitle the plaintiff to the horse; and there was nothing in the plaintiff’s evidence that showed the contrary. As to overruling a demurrer to evidence, see Simpson v. Kimberlin, 12 Kas. 579. The court below did not err in overruling said demurrer.
II. The defendant claimed and now claims that said mortgage was void, for the reason that it and the note were given for an illegal consideration; and he introduced evidence for the purpose of showing that it was void. None' of the instructions of the court below are brought to this court, and the jury that tried the case said in effect by their verdict that the'evidence did not show that the mortgage was void. Therefore, if we should now hold that the mortgage was void, we should not only be required to reverse the decision of the court below upon the law and the facts, but would also be required to reverse the findings of the jury, made upon the evidence in the case. This we cannot do, for there was some evidence, and sufficient evidence, to support every finding of the jury. The uncontradicted evidence did not all show that the mortgage was void. On the contrary, the plaintiff’s evidence showed that the mortgage was at least prima fade valid. But passing from the prima faeie case made by the plaintiff, the facts were probably about as follows: Converse was prosecuted before a justice of the peace for assault and battery. He was found guilty, and sentenced to pay a fine of five dollars and costs, amounting in the aggregate to $32.45. Safford was at the time of the trial in the justice’s court, acting as an under-sheriff, and acted during the trial as an officer of the justice’s court. _ When thé trial was ter minated, and the defendant was sentenced, he was orally placed in the charge of Safford. No warrant of commitment, nor indeed any warrant for the custody or detention of Converse, was issued by the justice, or placed in the hands of. Safford.' Both Safford and Converse then went to their respective homes. Next morning each returned to the justice’s office. Converse desired that something should be done to save him from going to jail. Safford then proposed to lend him the money to pay his fine and costs; provided Converse would give him a chattel mortgage on his horses. Converse agreed to do it, and gave the mortgage under which' the plaintiff Safford now claims the horse in controversy. The mortgage was made to secure the sum of $32.45, the amount of the fine and costs. Converse was then discharged by Safford and by the justice. Safford then paid the fine and costs, although he did not pay all of the same on that day. The whole transaction was evidently considered by all the parties, Safford, Converse and the justice, as a loan of money from Safford to Converse to pay said fine and costs. The entire transaction was conducted in the best of faith. And we cannot now say that it was in violation of any law, or of good morals, or of public policy. Besides, technically, Converse was not at the time the mortgage was executed in the legal custody of Safford. The trial had terminated the day before, and nothing was left to 'be done in the case further than for the justice to issue his warrant of commitment, or an execution, or both, to enforce his judgment. But the justice had not yet issued either, nor any writ or warrant. Converse therefore had a right to go wherever he chose. Safford had no warrant for the commitment or detention of Converse, or by which he could take or hold Converse in his custody. Safford was then just like any other deputy-sheriff. Converse might at some future time come into his custody, or might not; but Safford had no legal right at that time to take Converse into' his custody. Indeed, it is not shown that Safford ever had any warrant of any kind for the arrest, de tention or custody of Converse. Safford testifies that he did not consider that he had any charge of Converse at the time the note and mortgage were given; and as the jury in this case found in favor of Safford, we must presume that all the testimony given in his favor was true. There is nothing in the record of this case showing that Safford ever had the legal custody or charge of Converse, except the evidence that shows that Safford acted as the officer of the justice’s court during the trial.
The judgment of the court below will be modified so that if a return of the horse cannot be had, the plaintiff may recover $32.45, the amount of his debt, with interest, costs, etc. (Wolfley v. Rising, 12 Kas. 535.) In all other respects the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The defendant, Reuben Janies, was charged before the police judge of the city of Burlington with violating a certain ordinance of said city prohibiting the keeping of billiard tables. He was tried, found guilty, and sentenced before said police judge, and then he appealed to the district court. In the district court he moved to quash the complaint, because, as he claimed, the same did “not set forth facts sufficient to constitute a public offense against the ordinance of the city of Burlington.” The court sustained the the motion, to which the plaintiff excepted. The plaintiff then asked “leave of the court to file an amended complaint,” which leave was granted, and an amended complaint was accordingly filed, to all of which the defendant excepted. This amended complaint stated several facts not contained in the original complaint. The defendant was then tried, convicted, and sentenced upon this amended complaint, to all which he duly objected and excepted. The defendant then brought the case to this court on appeal. The plaintiff moved in this court to dismiss the -appeal, but the motion was overruled. It has been the practice to bring this class of cases to this court on appeal, and the supreme court has sustained such practice. (Neitzel v. City of Concordia, 14 Kas. 446, 448, and cases there cited; City of Olathe v. Adams, 15 Kas. 391, 394; City of Leavenworth v. Booth, 15 Kas. 627; City of Salina v. Seitz, 16 Kas. 143.) There is therefore nothing for this court now to do but to determine whether the district court committed any substantial error in any of its proceedings or not.
The first question arising in the case is, whether the court below erred in permitting the defendant to be tried, convicted and sentenced on an amended complaint, after the original complaint had been quashed for insufficiency. We know of no authority in the statutes or elsewhere permitting such a proceeding. In criminal cases brought by appeal from a justice’s court to the district court, new complaints may sometimes be filed. (Gen. Stat. 883, § 22.) But that is done by the express terms of a statute which does not cover this case even by implication. Criminal informations filed by the county attorney in the district court may sometimes be amended. (Gen. Stat. 832, §72.) But this also is done by the express terms of a statute which does not come anywhere near reaching this case. And generally, in criminal cases as well as in civil cases, where the court has original jurisdiction of the subject-matter of the proceedings, the old proceedings may be dismissed and new ones instituted in the same court. But that is not this case. The district court has no original jurisdiction -of this class of cases. This case is of course a criminal prosecution, or quasi criminal prosecution, (see cases above cited,) and is therefore governed by all of those general provisions of law which are applicable to all criminal cases. But it is not governed by any special provisions of law which are applicable only to particular cases, unless this is one of those particular cases. This class of cases is prosecuted in the name of the city, and not in the name of the state, as other criminal prosecutions are. It is prosecuted for the violation of a city ordinance, and not for the violation of any of the general laws of the state, as other criminal prosecutions are. And no court except that of the police judge has any original-jurisdiction of the prosecution, while in other criminal cases the prosecutions are commenced either in a justice’s court or in the district court. This kind of prosecution can be instituted nowhere except before the police judge; and if it be taken from him to the district court on appeal, the district court can get nothing except what the police judge had before him. There is no provision of law, statutory or otherwise, for enlarging or diminishing the prosecution on appeal. And there is no provision of law for changing or modifying it in such a case in the slightest respect whatever. The proceedings must be prosecuted upon the complaint filed with the police judge, or -not at all. If the city has made a mistake in its prosecution, the only remedy is to dismiss its action, and commence anew in its own court.
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by John Higginbotham against Leavenworth county on certain bonds issued by said county to the Union Pacific Eailway Co. The county says in its brief in this court, that it “rests its defense upon two different theories — first, that the pretended bonds sued on are [were] void ah initio, and have never been so ratified as to become the bonds of the county; second, but if valid, still that the county had levied and caused ' pi ~ to be collected taxes for the express purpose of paying these bonds, and sufficient in amount to pay them long before this suit was commenced;” and that as these bonds had been due more than five years when this suit was commenced, all action on the same was at that time barred by the five-year statute of limitations. With regard to the second theory of the plaintiff in error, we would say: -First— Admitting “that the county had levied and caused to be collected taxes for the express purpose of paying these bonds, and sufficient in amount to pay them long before this suit was commenced,” still the county never has paid them; it refuses to pay them, and has used the money collected for their payment for other purposes. Such a defense as the above is therefore hardly sufficient. And second — Admitting that more than five years had elapsed after these bonds became due, and before this suit was commenced, still, the county in 1873 paid all the interest due on said bonds up to that time, and has otherwise in writing and repeatedly acknowledged its own liability on said bonds. The cause of action therefore is evidently not barred. (Civil Code, §24.)
Turning now to the first theory of the plaintiff in error, defendant below: Are said bonds valid? The defendant below claims that they are void; first, because the act of the legislature under which they were issued never became a law; second, because the bonds were not legally issued under the act. The defendant claims that said act never became a law, and is therefore void, for the following reasons: lgt, because the yeas and nays were not called and entered on the senate journal on the final passage of the act in the senate; 2d, the enrolled bill of the act was never signed by the presiding officer of the senate; 3d, the act was published in the “Leavenworth Daily Conservative,” when it should have been published in the “Daily Conservative;” 4th, the signatures of the officers of the two houses affixed to the act were not publish^;! with the act. (Ch. 12, Laws of 1865, pp. 41, 42.) This act was passed and published more than eleven years ago. Since that time all the departments of the state government, the legislative, the executive, and the judicial, have held it to be valid. (Laws of 1866, pp. 72 to 74, 249, 250; Leavenworth Co. v. Miller, 7 Kas. 479; Morris v. Morris Co., 7 Kas. 576.) Its validity has never before been questioned upon any such grounds as are now urged against it. The only objection ever before urged against its validity was, that the legislature had no constitutional power to pass such acts; and that objection was long ago overruled by the courts. Many rights have accrued under the act, in the honest belief of its validity. And therefore, unless a very clear showing of invalidity can now be made out against it, it will be the duty of the courts to hold the act valid.
The question • raised by the first objection to the act we think has been settled by the decision of this court in the case of Haynes v. Heller, 12 Kas. 384, reporter's note, and P. 392, opinion. See also, Division of Howard County, 15 Kas. 195, 214. Said aot was Senate Bill No. 63, being senate bills Nos. 62 and 63 consolidated. On its final passage in the senate the yeas and nays were taken and entered on the senate journal, precisely as the constitution requires. The bill was .then taken to the house of representatives, where it was properly passed, with certain slight amendments, and was then returned to the senate for its concurrence. •The senate journal then shows that, “Mr. Gamble moved that the senate concur in the house amendments to Senate Bill No. 63, ‘an act to authorize counties to issue bonds to railroad companies.’ Motion prevailed.” Here is where it is claimed that the yeas and nays should have been taken and entered upon the journal. But what is there even here, and in this place, that shows that the yeas and nays were not taken? It is true, the clerk failed to enter them upon the journal; but as to whether they were actually taken or not, the journal is silent. And mere silence of record, does not as a rule invalidate the proceeding. It is a general principle of law, that it will be presumed, in the absencé of anything to the contrary, and in favor of the regularity and validity of the official proceedings of any official body having superior jurisdiction, that whatever ought to have been done was not only done, but rightly done. (McCulloch v. The State, 11 Ind. 425, 433 to 435. As to courts, see Hunter v. Furguson, 13 Kas. 462; Ogden v. Walters, 12 Kas. 283.) The journal shows that the “motion prevailed;” but in what manner the vote was taken, the journal does not show.
Whether the failure of the presiding officer of the senate to sign the enrolled bill of said act, invalidates the law or not, is the main question in this case. Indeed, it is the only new question that merits any consideration from this court. The constitution requires that “ Every bill and joint resoluti°n passed by the house of representatives and senate shall within two days thereafter be signed by the presiding officers, and presented to the governor,” etc. The regular presiding officer of the senate is the lieutenant-governor. (Const., art. 1, §12.) But the senate may also elect a president pro tern, of the senate, who may preside in case of the absence or impeachment of the lieutenant-governor, or when the lieutenant-governor holds the office of governor. Now it seems from the book of enrolled bills of the session of the legislature of 1865, that the regular president of the senate signed very few of the bills passed at that session. The most of them were signed by the president pro tern. But some of them however were not signed by any presiding officer of the senate, among which was the bill now under consideration. The bill now under consideration was signed by the secretary of the senate, by the speaker of the house, by the chief clerk of the house, and by the governor. Does the failure of the presiding officer of the senate to sign said bill, invalidate everything cannected therewith? If it does, then the presiding officer of the senate has more power to veto bills than the governor, or than any other person or officer in the state. The legislature may pass a bill over the veto of the governor; but if the plaintiff in error is correct, they cannot pass a bill over the veto (so to speak) of the lieutenant-governor, so as to make the bill become a valid law. The lieutenant-governor is the president of the senate; he holds his office independent of the legislature; they have no power to remove him from office, except by the slow and tedious proceeding of impeachment; they have no power to compel him to sign a bill, except by the equally slow and tedious proceeding of mandamus, and this can only be done in the courts; and if the plaintiff in error is correct they have no power to make a valid law except with the aid of his signature, so long as he is the acting presiding officer of the senate. Of course, he has the whole of the two days given him within which to sign a bill. He would not be in default — no action could accrue against him for any supposed default, prior to the expiration of the two days. And upon the theory of plaintiff in error, when the two days have elapsed, if the bill has not yet been signed, it has become defunct.' Everything connected therewith is dead. All the proceedings of the legislature with reference thereto have been annulled; and there is no power anywhere that can ever afterward breathe life or vitality into them again. The constitution provides that when a bill has passed the two houses it “shall within two days thereafter be signed by the presiding officers,” etc.: (art. 2, § 14.) And there is no power given by the constitution or elsewhere for the presiding officers to sign the bill at any time subsequent to the expiration of said two days. Plaintiff in error claims that this provision of the constitution is absolutely mandatory, and therefore that no valid law can be made unless its terms are fulfilled to the very letter, and therefore no valid law can be made unless the bill is signed by the presiding officers of the two houses within the prescribed two days. To admit that a bill might under any circumstances become a law without being signed within the two days, would be to admit that said provision of the constitution is not mandatory. ' It would be to admit that a law might be made without said provision being strictly complied with. It would be to admit that a failure on the part of the presiding officers to sign a bill within the two days does not absolutely destroy the life and vitality of the bill, and render all the proceedings of the legislature with reference thereto nugatory. And to admit that an action of mandamus would under any circumstances lie to compel a presiding officer who had failed to sign a bill for more than two days to afterward sign the same, would be to admit the foregoing. It would be to admit that a bill might become a law, although it was not signed within the two days as prescribed by the constitution. We think that mandamus would lie in such a case; but ordinarily it would be a very inadequate remedy. It would lie for the purpose of furnishing the additional evidence which the signatures of the presiding officers would give as to the passage and the validity of the laws, but it would ordinarily be a very inadequate remedy, if, as the plaintiff in error claims, the validity of the law depends entirely upon the signatures of the presiding officers; for ordinarily, nearly all the bills of any particular session are passed just before the close of the session; and ordinarily, before any action of mandamus could be heard and determined the legislature would be adjourned sine die. Therefore, as the action of mandamus would ordinarily be a very inadequate remedy, it would be extremely unfortunate if it were the only remedy. If it were the only remedy, then the power of the presiding officers to practically annul the proceedings of the legislature, to practically veto the bills passed by the legislature, would be almost as absolute as if no such remedy were in existence. But we think that mandamus is not the only remedy so far as determining the validity of the law is concerned. The signatures of the presiding officers do not constitute any portion of the law. It is not necessary that the consent of the presiding officers should be had in order to enact the law. The only office that the signatures of the presiding officers is intended to perform, is to furnish evidence of the due passage and validity of the bill'. Such signatures are only portions of the many evidences of the due passage and validity of the bill. And a bill may in some instances, as we think, be valid, although the signatures of one of the presiding officers may be omitted. With one of such signatures gone, the evidence of the passage and validity of the bill would, of course be somewhat weakened. If the signatures of both of the presiding officers were gone, the ' evidence would of course be weaker still. If in addition to this, the journals did not show the passage of the bill, then the evidence of its passage would be almost wholly gone. And taking the whole of the evidence together, if it should not clearly appear to the courts that the bill had been passed by the legislature, and approved by the governor, it would be the duty of the courts to declare that the bill had never become a law. The courts must decide as to the passage and validity of a bill upon the whole of the legal evidence applicable in such cases. If the enrolled bill were perfect and formal in every particular, then the courts might say that the bill had passed and become a law, although there might be omissions from the journals. (See authorities cited in 15 Kas. 211, and State v. Swift, 10 Nevada, 176.) Or, if the journals were perfect in every particular, and showing that the bill had been regularly and duly passed, then the courts might say that the bill had passed and become a law, although there might be some omissions from the enrolled bill. The enrolled bills and the journals of the legislature are the principal evidences of the passage and validity of a bill, and generally they cannot be contradicted. Probably they can never be cob tradicted if they are harmonious with themselves and with each other. (Division of Howard Co., 15 Kas. 194.) But in doubtful cases, extrinsic evidence may. probably be received to corroborate what they seem to prove, or to explain the doubtful import of their language. We think that the enrolled bill and the legislative journals in the present case, when taken together, clearly show- that the bill, now under consideration was duly passed by the legislature, and approved by *the governor, and that it regularly became a valid law. And all the extrinsic evidence having any application to the case also clearly shows the same thing. Among the evidences (record and extrinsic) which show that said bill has become a valid law are the following: The legislative journals show beyond all doubt that the bill passed the two houses. The senate journal shows that the bill passed the senate. The house journal shows that the secretary of the senate reported to the house, that the bill had passed the senate. The house journal also shows that the bill regularly passed the house, with amendments. The senate journal shows that the senate concurred in the house amendments. The house journal shows that the secretary of the senate reported to the house that the senate had concurred in the house amendments. The senate journal shows that the committee on enrolled bills reported to the senate that the bill had been correctly enrolled, and presented to the governor for his approval. And the senate journal also shows, that the governor reported to the senate that he had approved the bill. The enrolled bill is now preserved in the office of the secretary of state, bound in a book along with the other enrolled bills of that session, and it contains the following evidences of its own.passage and validity: It contains the certificate and signature of the secretary of the senate, showing that the bill passed the senate; the certificates and signatures of the speaker and the chief clerk of the house, showing that the bill passed the house, and inferentially that it passed the senate; and the signature and approval of the governor, which inferentially shows that it passed both houses. The bill has been published as a law by the secretary of state, both in a newspaper and in the statute book. (Laws of 1865, pp. 41, 42.) It has subsequently been recognized as a law by the legislature and the governor; (Laws of 1866, pp.72 to 74, 249, 250;) and also by the courts; (7 Kas. 479, 576.) And indeed, it has generally been recognized to be as much a law as any other law on the statute book. And the question that it was not duly passed, or signed, has never been raised until recently, although it has been on the statute book "for over eleven years. We think the mere failure of the president of the senate to do his duty cannot have the effect to invalidate the law.
The defendant in error says in his brief, that “ The claim of the plaintiff in error that the law was not duly published, is too fine for extended comment; and further, the same act was published on the 19th of June 1865, with the other laws same session, and by §4 of the act previoug gubmiggioiig [to the people of the question of voting bonds, etc.,] were made valid,” etc. We suppose that the plaintiff in error, through its agents and counsel, knows that the “Leavenworth Daily Conservative” was the only “Daily Conservative” in the state, for such was the fact; but how it knows that the signatures of the officers affixed to the act were not published, we are not informed. But suppose they were not published: we do not think that such omission would invalidate the law. If it would, then the plaintiff’s present petition in error in this court should be •dismissed for the following reasons: Neither the signatures to the act defining the jurisdiction of this court, (Gen. Stat. 299, 300,) nor the signatures to the act authorizing petitions in error, (Gen. Stat. 735, 736,) have ever been published. We think the act in the present .case was properly published.
Plaintiff in error claims that said bonds are void because, as it claims, they were not issued in accordance with said act of the legislature, and urges several reasons for this claim. Some of these reasons controvert the facts as found by the court below, and as they ought to have been found; some of tbem controvert the law; some of them have already been considered and decided by this court in the case of Leavenworth Co. v. Miller, 7 Kas. 541; and none of them are tenable. Making the bonds payable in New York, and making the interest seven per cent, per annum, payable semi-annually, certainly does not invalidate the bonds.
We think the election to vote upon the question of issuing the bonds was valid, although it was called by the county board on the eleventh day of their May term 1865. (See arguments of counsel in their briefs.) There are probably good reasons however why the bonds should be held valid, even if said election was not strictly valid. They have been ratified,, not only by the county board, but substantially by the legislature, and by the people of Leavenworth county themselves.
The judgment of the court below must be affirmed.
All the Justices concurring. | [
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|
The opinion of the court was delivered by
Schroeder, J.:
This is an action to enforce a judgment by garnishment process wherein the constitutional validity of G. S. 1959 Supp., 17-1725 is challenged. Upon issues joined by the judgment debtor and the garnishees, the trial court ruled generally in favor of the judgment debtor and the garnishees. Thereupon appeal was duly perfected presenting the issues hereinafter discussed.
The controlling question is whether G. S. 1959 Supp., 17-1725 is valid under Section 18 of the Bill of Rights of the Kansas Constitution.
The facts have been stipulated by the parties and are not in issue.
On March 27, 1958, Mary Frances Neely (appellant) filed an action against the St. Francis Hospital & School of Nursing, Inc., a corporation (appellee), alleging that she had sustained severe personal injury due to the negligence of the appellee hospital in the giving of a tetanus antitoxin shot. A verdict and judgment for the appellant in the amount of $79,161.34 was rendered by the trial court on March 11, 1960, which was later affirmed and approved by this court on July 8, 1961, in Neely v. St. Francis Hospital & School of Nursing, 188 Kan. 546, 363 P. 2d 438.
Thereafter the appellee hospital’s casualty insurance carrier paid the appellant the sum of $58,166.77, which represented the extent of the insurance carrier’s contract liability, plus interest and costs. The balance of the judgment in the amount of $29,161.34, plus interest on the unpaid balance from July 18, 1961, has not been paid by the appellee hospital.
In 1959 the legislature enacted G. S. 1959 Supp., 17-1725 which, in effect, conferred immunity from process upon the class of corporations of which the appellee hospital claims to be a member, except for obligations owing to the state or contractually assumed.
The appellant followed the procedure provided by statute to collect the balance of this judgment debt. She proceeded in garnishment against The Fourth National Bank & Trust Company of Wichita, Kansas (garnishee bank), which filed its answer admitting that it had in its possession sufficient funds of the appellee hospital to discharge the judgment debt, but “that the said funds in the hands of the garnishee were, and are, not subject to attachment, garnishment, execution or other forced disposition for satisfaction of the plaintiff’s judgment herein; and such funds are trust funds held in accordance with the Articles of Incorporation and bylaws of the defendant and the provisions of 1959 Supplement to the General Statutes of Kansas, 1949, Section 17-1725 for the use and benefit of the present and future beneficiaries of the services of the defendant.”
The appellant elected to take issue on the answer of the appellee hospital and garnishee bank, and moved for an order requiring the garnishee bank to pay into court the amount shown to be due and for judgment on the pleadings. Similar procedure was taken against the garnishee, L. S. Lauer, whose answer was the same as that of the garnishee bank. The trial court ruled generally against the appellant, and she now appeals.
The legislative act in question, 17-1725, supra, enacted in 1959 to become effective March 31st of that year, reads:
“Property, either real or personal, together with the income therefrom or the proceeds from its disposition, belonging to a corporation organized not for profit and which operates or supports one or more hospitals, operated on a nonprofit basis, shall be deemed to be held administered, or disposed of, in accordance with the articles of incorporation and bylaws of such corporation, for the use and benefit of the present and future beneficiaries of the services of such institutions; and such property, income or proceeds shall not be subject to attachment, garnishment, execution, or other forced disposition or process except for obligations owing to the state, or its subdivisions or agencies, or for obligations contractually assumed by such corporation for the purpose of rendering its services, and performing its functions, for such beneficiaries.”
It was stipulated and agreed that the St. Francis Hospital & School of Nursing, Inc. is a corporation organized not for profit under the laws of the state of Kansas in conformance with the articles of incorporation, attached and made a part of the record.
The historical background of the foregoing statute no doubt stems from the decision in Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934, decided in 1954, which reversed a long line of decisions which had held that charitable and nonprofit organizations were immune from tort liability. In the Noel case it was said:
“The immunity of charitable corporations for torts is based upon very dubious grounds. It would seem that a sound social policy ought, in fact, to require such organizations to make just compensation for harm legally caused by their activities, under the same circumstances as individuals before they carry on their charitable activities. All persons, organizations and corporations stand on an equality before the law. All should be bound alike or excused alike. If one is liable for a negligent act of his agent or employee, all should be liable. It would seem that the policy of the law would require individuals to be just before being generous, and the same rule should be applicable to charitable organizations. To require an injured individual to forego his cause of action for the wrongful acts of another when he is otherwise entitled thereto because the injury was committed by charity, is to require him to make an unreasonable contribution to charity against his will, and a rule of law imposing such burdens cannot be regarded as socially desirable nor consistent with sound policy. (Harper on Torts, p. 657, § 294.)
“It is somewhat surprising to note that in none of the decisions establishing the immunity doctrine in this state was the question ever presented or consideration given to the provisions of our constitution. Section 18 of our bill of rights reads: ‘All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.’ It is clear from plaintiff’s petition that he has suffered injuries in person, and under our state constitution he shall have remedy by due course of law. (Rowell v. City of Wichita, 162 Kan. 294, 300, 176 P. 2d 590.) Neither our constitution nor our statute says anything about releasing charitable, educational or religious organizations from liability for negligence which results in personal injuries to another. Section 18 of our bill of rights is to the contrary. Thus it would appear that the public policy of this state, as enumerated by its constitution, is to put justice “by due course of law’ above or before charity. The constitution, article 11, section 1, and our statute, G. S. 1949, 79-201, do make provisions for releasing such institutions from taxation. Had it been the intent of the framers of our constitution to grant immunity to charitable organizations for their torts, provisions would have been made for such. The constitutional provision guaranteeing to every person a remedy by due course of law for injury done him in person or property means that for such wrongs that are recognized by the law of the land the court shall be open and afford a remedy, or that laws shall be enacted giving a certain remedy for all injuries or wrongs. ‘Remedy by due course of law,’ so1 used, means the reparation for injury ordered by a tribunal having junsdiction in due course of procedure after a fair hearing. It is the primary duty of the courts to safe guard the declaration of right and remedy guaranteed by the constitutional provision insuring a remedy for all injuries. (11 Am. Jur. 1124, 1125, Constitutional Law, § 326.)” (pp. 762, 763.) (Emphasis added.)
Despite the clarity of the admonition contained in the foregoing opinion, with reference to the constitutional guaranties protecting remedies for injury to person, reputation or property, the legislature, no doubt at the request of certain corporations organized not for profit and which operate or support one or more hospitals, operated on a nonprofit basis, adopted 17-1725, supra.
While the statute is not a straightforward declaration of public policy conferring immunity for torts upon charitable or nonprofit organizations, it is an attempt to circumvent by indirection the constitutional guaranties so plainly indicated by this court in Noel v. Menninger Foundation, supra. The statute confers no immunity for tort, but an exemption from process enforcing judgments obtained by due course of law, contrary to Section 18 of the Bill of Rights of the Constitution of Kansas, which provides: “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
It is clear from the stipulated facts that the appellant suffered an injury in person, and that under our constitution she is entitled to have remedy by due course of law. (Rowell v. City of Wichita, 162 Kan. 294, 300, 176 P. 2d 590.) Nevertheless, the garnishees have excepted to a garnishment summons, which they stipulate was duly and legally served, pleading 17-1725, supra, which they contend exempts their funds from attachment, garnishment executions or other process.
In 11 Am. Jur., Constitutional Law, § 326, it is said:
“The cognate constitutional provision guaranteeing to every person a remedy by due course of law for injury done him in person or property . . . means that for such wrongs as are recognized by the law of the land, the courts shall be open and afford a remedy, . . . ‘Remedy by due course of law,’ so used, means the reparation for injury ordered by a tribunal having jurisdiction, in due course of procedure, after a fair hearing. . . .” (pp. 1124, 1125.)
To further clarify the meaning of the term “remedy,” it is said in 76 C. J. S., Remedy, p. 902: “In Actions, §3a (1), the word ‘remedy’ is defined in its legal sense as the judicial means or method for enforcing a right or redressing a wrong, . . .”
The provisions in Section 18 of the Bill of Rights of the Kansas Constitution guaranteeing to persons a remedy by due course of law cannot be watered down by diluting the definition of “remedy.”
G. S. 1949, 60-103 provides: “Remedies in the courts of justice are divided into: First, actions. Second, special proceedings.”
G. S. 1949, 60-104 defines an “action.”
G. S. 1949, 60-105 provides: “Every other remedy is a special proceeding.”
Garnishment is a special proceeding. It has been said a proceeding in garnishment is a special and extraordinary remedy. (Andrews v. Andrews, 171 Kan. 616, 237 P. 2d 418.) Obviously, garnishment is a remedy.
The appellees contend a distinction must be made between “remedy” and “recovery.” They argue the statute in question in no way denies the appellant a remedy by due course of law. To support this contention they call our attention to the fact that the appellant has already been paid in excess of $58,000 on the judgment, and by reason thereof it is apparent she had a remedy. This argument overlooks the fact that if the appellee hospital had carried no insurance, the appellant would not have recovered one dime, assuming the validity of 17-1725, supra, is upheld. Furthermore, there would be no necessity for such hospitals to carry insurance in the future.
The appellees further argue there is no section of the Constitution of this state or of the United States that guarantees full recovery to the prevailing party; that to provide a remedy is not to guarantee a right, or indemnify against wrong. Obviously, the extent of the assets of a judgment debtor are not guaranteed by any Constitution. This argument evades the issue.
To bolster their position the appellees cite statutes in which the remedy of garnishment is available and yet recovery as against certain property is not available by reason of exemptions created by the legislature. (Citing, G. S. 1949, 60-3494, 60-3495, 60-3504, 60-3505 and 60-3508.) They further cite the bankruptcy laws in which a remedy by due course of law is provided, and yet full recovery may be precluded.
As for bankruptcy laws, these are a federal matter and supersede state law. The sections of the statute under Article 35, Chapter 60, in the 1949 General Statutes of Kansas, pertain to the homestead exemption guaranteed by the Constitution of Kansas, and to exemptions for the head of a family and an individual person of personal property such as wearing apparel, the family Bible, school books, family pictures, musical instruments, a seat or pew in any church, a lot in a burial ground, household furniture and appliances, a limited number of livestock, chickens and other domestic fowls, the necessary food for the support of such stock for one year, the implements of farming, grocery and fuel supplies on hand sufficient to support the debtor and his family for one year, the necessary tools, implements and instruments needed to carry on a trade or business, and the library, implements and office furniture of any professional man. These exemptions which pertain to the individual and/or his family are historic in origin in Kansas stemming from the Laws of 1868, and are designed to supplement the homestead exemption guaranteed by the Constitution. Similarly, money received by any debtor as a pensioner of the United States, which is exempt under the provisions of 60-3508, supra, falls in this category.
All property of an individual debtor, whether the head of a family or not, which is not specifically exempt by 60-3504, 60-3505 and 60-3508, supra, on grounds of public policy, is subject to forced process and can be applied to the satisfaction of the debt. The court has little difficulty in finding these exemptions to be in a category of their own and entirely distinct and apart from the privileges sought to be granted by 17-1725, supra.
The provisions of 60-3494 and 60-3495, supra, exempt personal earnings of a judgment debtor except to the extent of ten percent, and costs not to exceed $4, where the judgment debtor otherwise complies with the provisions of these sections.
This exemption does not fall in the same category as the legislative act in question because ten percent of the earnings of the judgment debtor can be applied each month to the satisfaction of the debt by forced process, thereby giving the creditor a remedy by a special proceeding except that there are limitations on the amount of recovery. If the creditor persists, garnishment may be repeated month after month for application of the limited amount of recovery to the satisfaction of the debt. Furthermore, all property of the debtor not specifically exempt by statute is subject to forced process.
We adhere to the construction of Section 18 of the Bill of Rights of the Kansas Constitution placed upon it in Noel v. Menninger Foundation, supra, where it was said: “. . . It is the primary duty of the courts to safeguard the declaration of right and remedy guaranteed by the constitutional provision insuring a remedy for all injuries. . . .” (p.763.) (Emphasis added.)
So construed, the court is forced to conclude G. S. 1959 Supp., 17-1725 is invalid as contravening Section 18 of the Bill of Rights of the Kansas Constitution. We therefore hold the statute in question (L. 1959, Ch. 127, § 1) unconstitutional and of no force and effect.
It follows that the trial court erred in overruling the appellant’s motion to require the garnishees to pay to the clerk of the district court of Sedgwick County, Kansas, the amount of money shown by their answers to be due the St. Francis Hospital & School of Nursing, Inc., and in overruling the appellant’s motion for judgment on the pleadings.
The judgment of the lower court is reversed.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover actual and punitive damages to the residence and property of the plaintiffs as a result of the electrical current being shut off by the defendant, causing frozen meat to spoil. The jury returned a verdict in favor of the plaintiffs in the amount of $6,060.45 actual damages, and awarded them punitive damages in the sum of $4,000.
The sole question presented is whether plaintiffs’ evidence was sufficient to support the jury’s verdict awarding punitive damages. There was little dispute as to the facts, and they are briefly summarized: The plaintiffs are husband and wife and reside in White City, and are the parents of two minor children, Charles, age 12 years, and Kenneth, age eight years. The defendant, The Kansas Power and Light Company, had furnished electrical current to the plaintiffs’ home for approximately five years prior to July 18, 1960. The minor child, Kenneth, had rheumatic fever and his doctor recommended that he be moved to a higher and dryer climate during the summer vacation. The Kohler family left White City on June 20, 1960, for Albuquerque, New Mexico, to spend the summer and return prior to the commencement of school in the fall. Before leaving White City, Mr. Kohler went to the office of the defendant in White City to pay his June bill and while he was there he informed two of its employees that his family was leaving for the summer; that he did not want his electrical current shut off, and to bill him monthly at Albuquerque for the service. The plaintiffs left all their furniture, winter clothing, household effects and appliances in their home, taking with them only their clothing for the summer. Among the appliances in the home were a deep freeze and a refrigerator with a freezing compartment, which contained approximately 460 pounds of processed meat.
George Griffiths, the managing agent and an employee of the defendant out of its White City office, had been in the Kohler residence in March, 1960, to install a meter to determine how much electrical current the deep freeze used. The meter was left installed for about two weeks and was removed at plaintiffs’ request.
White City is a town of approximately 500 people and Griffiths had lived there for approximately 25 years. He was personally acquainted with the Kohlers and knew they were leaving White City for the summer for their minor son’s health. He was also acquainted with and knew the parents of Mr. Kohler, who lived less than a block from the plaintiffs’ residence. The evening prior to their leaving, Griffiths saw the plaintiffs loading their trailer preparatory to their departure.
While in Albuquerque, the plaintiffs received a bill for electrical current which had been used in their residence and they remitted payment for the charge. At no time were they delinquent for payment of the electrical service.
On or about July 18, Griffiths, while reading meters for the defendant, disconnected the electrical current to the Kohler residence at the time he was reading the meter for the service to their home. When he read the meter he noticed that the Kohlers had used approximately 180 Kilowatts and he knew that when they were living in the residence their average monthly reading was between 200 and 230 kilowatts. Neither before nor after Griffiths disconnected the electrical current did he make an attempt to contact Kohler’s parents or other relatives who lived in White City.
During the time the plaintiffs were in Albuquerque their house was completely closed. The electrical current was cut off during the hot summer, which caused 460 pounds of processed meat in the deep freeze and refrigerator to become decomposed and rotten, causing the refrigerator and deep freeze doors to burst open and blood, meat, and the contents to run out and upon the floors of the residence. The decomposed meat created an excruciating odor which penetrated the walls of the home, the furniture, appliances, clothing and other household effects.
On or about August 4, 1960, Mr. Kohler s parents checked on the plaintiffs’ residence and discovered the terrible condition existing in the home. Kohler’s father called Griffiths and asked if he had disconnected the electrical service, and he said he had. Kohler’s father told him that the plaintiffs had frozen meat in the house. Griffiths came to the plaintiffs’ residence immediately and he could smell the decomposed meat before he and the plaintiff’s father got the door open. The meat was completely decomposed. He emptied the freezer into a wash tub and a bucket and carried them out and loaded them onto his truck and took them to the city dump. Efforts were made to clean and disinfect the residence by the use of formaldehyde and other disinfectants, but to no avail. Griffiths wrote the plaintiffs in New Mexico, stating in part:
“1 remember we had some conversation about the electricity before you left but I sure don’t remember you telling me you had a freezer of meat in the house ... I evidentally misunderstood you, I am sure you did not tell me to shut off the current when you had your freezer loaded.”
The defendant argues that the evidence is insufficient to support the jury’s verdict for punitive damages which was approved by the district court. We do not agree. In the early case of Telegraph Co. v. Lawson, 66 Kan. 660, 72 Pac. 283, with citation of numerous cases, it was said:
“. . . The rule is too well settled in this state to admit of modification or change, that in all actions to recover damages for negligence, where actual damages are recoverable, the plaintiff is entitled to recover exemplary damages if the negligence be so gross as to amount to wantonness. (Cases cited.) The term ‘wantonness’ as here used does not necessarily mean malice, but a reckless disregard of the rights of others.” (l. c. 662, 663.)
In Allman v. Bird, 186 Kan. 802, 353 P. 2d 216, rules relating to the allowance of punitive damages, the purposes for which they are allowed, and the conditions and circumstances under which they may be recovered, were discussed and applied, and in the opinion it was said:
“. . . this court has held that generally the intentional doing of a wrongful act with full knowledge of its character, and without cause or excuse, is malicious and warrants an award of exemplary damages. (Cases cited.)” (l. c. 806.)
In Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822, in defining gross and wanton negligence, it was held:
“To constitute wantonness, the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not. If the actor has reason to believe his act may injure another, and does it being indifferent to whether it does or not, he is guilty of wanton conduct.” (Syl. f 5.)
In Watkins v. Layton, 182 Kan. 702, 324 P. 2d 130, the rule relating to the sufficiency of proof of punitive damages was stated, and we held:
“The law does not require a specific finding of an intentional and ruthless desire to injure in order to sustain an award of punitive damages. The burden of proof is sustained, once the injured party shows such gross neglect of duty by the wrongdoer as to evince a reckless indifference of the rights of others.” (Syl. IT5.)
Referring to a decision of the Supreme Court of Alabama, the opinion stated:
“. . . the Alabama court held that the burden of proof is sustained, once the injured party shows an entire want of care so as to raise the presumption that the person at fault is conscious of the probable consequences of his carelessness.” (l. c. 708.)
The jury answered special questions finding that the defendant was guilty of negligence; that the plaintiffs were free from contributory negligence, and that they took all steps reasonably available to them to mitigate their damage.
The general verdict in favor of the plaintiffs imports a finding upon all the issues of the case and determined every controverted question of fact in support of which evidence was introduced. The defendant is a public utility authorized to do business in this state. When its property is devoted to public use, certain reciprocal rights and duties are raised by implication of law between the utility and the public it undertakes to serve. It has a duty to use the highest degree of care to protect the public in rendering service to its customers. 73 C. J. S., Public Utilities, § 4; Henderson v. Kansas Power & Light Co., 184 Kan. 691, 339 P. 2d 702.)
The court’s instructions to the jury were not abstracted, but the parties are agreed they correctly stated the law with respect to the burden of proof imposed upon the plaintiffs to recover actual and punitive damages. It was the province of the jury to weigh all of the evidence and draw inferences and conclusions therefrom and it had the right to draw the inference that when Griffiths cut off the electrical current to the plaintiffs’ residence he realized the imminence of injury to the plaintiffs from his act and was indifferent to whether it occurred, and that his conduct was in reckless disregard to their rights.
We cannot say as a matter of law that plaintiffs’ evidence failed to establish gross negligence on the part of Griffiths as to amount to wantonness as above defined. Considering the evidence as a whole, it was sufficient to sustain the district court’s approval of the jury’s verdict for punitive damages, and that judgment is affirmed.
Price, J., dissents. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by defendant, Dealers Auto Transport, in a property damage action against Dealers and its truck driver, Donald Cecil Adamson, from the trial court’s order overruling the defendants’ joint demurrer to plaintiff’s petition so far as Dealers is concerned. No cross appeal was taken by plaintiff from the trial court’s order sustaining the demurrer as to Donald Cecil Adamson, the second defendant.
The summarized facts reflected in plaintiff’s petition filed May 8, 1962, are that at approximately 7:30 p. m. on November 14, 1958, plaintiff’s insured, Edgar Mills Glover, was driving his 1958 Oldsmobile in a careful and proper manner in a northerly direction on north and south U. S. highway 69 about six miles south of Louisburg in Miami county.
As Glover approached an intersecting east and west county road, he slowed the speed of his automobile and signaled with his directional light for a right turn into the county road. Just as he commenced his right turn, Donald Cecil Adamson drove a 1954 Ford and semitrailer truck into the rear of the Glover Oldsmobile with great force and violence damaging it in the sum of $1,704.50. It was alleged the truck was owned by Dealers, Adamson’s employer, and he was acting within the scope of his agency and employment. Allegations of damage to the automobile were included in the petition but we are not presently concerned therewith.
Glover was insured by a fifty dollar deductible collision policy of plaintiff by reason of which he received $1,654.50 as a result of the above collision. Thus plaintiff was subrogated for the amount paid under its collision policy to Glover’s rights against both defendants. The allegations of Adamson’s negligent acts, which were the direct and proximate cause of the collision and resulting damage, are not here in controversy and thus will not be set out.
Paragraph 8 of the petition states allegations which plaintiff claims tolled the statute of limitations and which were the basis for the trial court’s order overruling Dealers’ demurrer. These allegations are adequately summarized in plaintiff’s brief as follows:
“November 14, 1958: Date of accident.
“January 12, 1959: Defendant advised plaintiff it must delay action on plaintiff’s claim until it had disposed of bodily injury claim of Mr. Glover and suggested that plaintiff contact it again in 120 days.
“June 3, 1959: Defendant suggested plaintiff delay its claim for an additional 90 days.
“September 22, 1959: Defendant suggested plaintiff again delay its claim for another 90 days as personal injury claim was still pending.
“December 31, 1959: Defendant suggested to plaintiff it delay its claim another 90 days as personal injury claim was still pending.
“March 29, 1960: Defendant advised plaintiff personal injury claim still pending.
“May 26, 1960: Defendant advised plaintiff personal injury claim still pending.
“December 28, 1960: Defendant advised plaintiff that bodily injury claim still pending, and suggested plaintiff delay its claim an additional 90 days.
“April 7, 1961: Defendant advised plaintiff bodily injury still pending, and suggested plaintiff delay its claim an additional 120 days.
“September 21, 1961: Defendant advised plaintiff it had disposed of bodily injury claim and asked plaintiff to furnish itemized bill of its damage and that it would then be in a position to give plaintiff’s claim its consideration.
“September 26, 1961: Plaintiff furnished defendant with itemized repair bill.
“October 23, 1961: Defendant advised plaintiff that it would not consider plaintiff’s claim because statute of limitations had run.
“May 8, 1962: Plaintiff’s petition filed.
“It was a regular and customary practice to delay settlement of property damage claims until the disposal of any personal injury claims involved. Be cause of the foregoing representations by the defendant to the plaintiff, the plaintiff delayed the filing of its suit on its property damage. Because of said representations by the defendant, the plaintiff was led to believe that the defendant would not assert the statute of limitations on its property claim if the parties were unable to reach a settlement of said claim and the plaintiff found it necessary to file a suit on its property claim. The defendant’s representations were made for the purpose of inducing the plaintiff to delay the filing of its suit on its property damage claim until after the disposal of the personal injury claim; and the plaintiff did delay the filing of its suit until the disposal of the personal injury claim. The plaintiff would not have delayed the filing of its suit on its claim if it had not been induced and led to believe by the defendant’s representations that the defendant would not invoke the statute of limitations.”
The applicable statute of limitations, G. S. 1949, 60-306, Third, provides as follows as to the time within which such an action can be brought:
“Third. Within two years: ... an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated. . . .”
We are concerned with only one question in this appeal and that is whether the allegations of paragraph 8, above summarized, state facts sufficient to constitute the tolling of the statute of limitations and the estoppel of defendant’s defense that the statute of limitations had run. Plaintiff contends, and we are in accord therewith, that Safeway Stores v. Wilson, 190 Kan. 7, 372 P. 2d 551, controls our decision here. The Safeway Stores case involved an accident which occurred on July 30, 1957. On November 29, 1957, Safeway presented an itemized statement of property damage to Wilson but request was made by Wilson for delay of forty-five days of Safeway’s property damage action until the claim of Safeway’s driver for personal injuries was disposed of. On February 21, 1958, Safeway again inquired as to when the claim would be settled and was reminded of the normal practice of delaying settlement of “purely property damage claims” until pending personal injury claims had been disposed of. On May 6, 1958, a similar result came from another inquiry by Safeway. On August 20,1958, April 3,1959, June 22, 1959, and September 14, 1959, similar requests were made by Safeway and met with the same response except that on the request of September 14, 1959, the insurance company wrote Safeway on September 16, 1959, denying liability by reason of the expiration of the two year time limit provided in G. S. 1949, 60-306, Third. Thereupon Safeway filed its action on February 8, 1960.
The opinion in the Safeway case holding the statute of limitations had been tolled included a comprehensive discussion of many of the authorities in this state in support of that determination, all of which require the conclusion here that the allegations of the petition, when tested by a demurrer, which affords the petition a liberal construction and admits all well-pleaded allegations, were sufficient to toll the statute of limitations and estop defendant from setting up the defense thereof.
The order of the trial court overruling defendant’s demurrer to plaintiff s petition is affirmed.
Price and Fatzer, JJ., dissent.
Jackson and Fontron, JJ., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
This action was commenced by Cities Service Gas Company, pursuant to G. S. 1949, 55-606, for a judicial review of an order of the State Corporation Commission authorizing The Wood-son Pipe Line and Producing Company to water flood a certain oil and gas lease in Anderson County. (G. S. 1949, 55-133, et seq.)
The appeal is from the judgment and order of the district court sustaining Woodson’s motion to dismiss the action upon the ground that Cities Service failed to comply with G. S. 1949, 55-606, by filing its petition for rehearing with tihe commission within ten days from the date of the maldng of the commission’s Order, Memorandum Opinion and Order, hereafter called order, and that the district court was without jurisdiction of the alleged cause of action for judicial review. The correctness of that ruling is the sole question for appellate review.
The essential facts are stated: Woodson is the owner of the right to produce oil from a formation called the Squirrel Sand underlying certain land in Anderson County covered by the Buchanan lease. In 1936, Cities Service purchased the mineral rights to the Colony Sand formation which is situated below the Squirrel Sand formation under the Buchanan lease and other lands in the same vicinity. The two reservoirs are physically separated from each other by an impermeable shale barrier. In 1943, and at all times since, Cities Service has utilized the Colony Sand as an underground storage reservoir for gas as a material part of its integrated interstate gas pipe line system for the transportation of gas in interstate commerce.
In 1960 Woodson filed its application with the commission for a permit to water flood the Squirrel Sand underlying the Buchanan lease. Cities Service timely filed its objections to Woodson’s application and also filed a petition to intervene in the proceedings. The petition to intervene was sustained, and extensive hearings were had on the issues on June 30, 1961, July 11, 12, and 13, 1961, and August 28, 29, and 30, 1961. On August 30, 1961, the record was closed and the commission took the matter under advisement.
The commission held the matter under advisement until April 25, 1962, when the subsequent facts, as shown by the stipulation of the commission, Cities Service and Woodson, chronologically occurred:
On April 25,1962, the commission approved the order authorizing Woodson to water flood the Squirrel Sand underlying the Buchanan lease, and signed the official minutes authorizing the order to be issued.
On April 26, 1962, carbon copies of the order and commission minutes were sent to the commission’s Oil and Gas Conservation Division in Wichita, Kansas, for mimeographing and mailing to all interested parties.
On April 30,1962, the order was first released by the Oil and Gas Conservation Division when a photostat copy of the order was deposited in the United States mail at Wichita by the commission, addressed to Cities Service and to Woodson, which had stamped on the face thereof, “Mailed April 30, 1962.” The order remained in the exclusive control and possession of the commission until it was released by being placed in the United States mail at Wichita on April 30,1962.
No official notice of the order was given to Woodson or Cities Service other than by such mailing by the commission, and neither company had any knowledge of the content of the order until each received its copy through the United States mail. Cities Service received its copy at Oklahoma City, Oklahoma, on May 2, 1962.
On May 9,1962, Cities Service filed a document entitled “Petition for Rehearing” with the commission at its office in Topeka, and served a copy on Woodson on that date. No pleading was subsequently filed by Woodson with the commission.
On May 18, 1962, the commission entered its order overruling Cities Service’s petition for rehearing, and on May 28, 1962, it caused a photostat copy thereof to be deposited in the United States mail addressed to Cities Service.
On June 15, 1962, Cities Service commenced this action by filing its petition in the district court for judicial review of the commission’s order mailed April 30, 1962, and the order of May 18, 1962, overruling its petition for rehearing. The commission was named as the only defendant and summons was served upon the secretary at his office in Topeka.
On September 5, 1962, Woodson filed a motion to intervene in the action, which was sustained by the district court on September 28,1962. Thereafter, Woodson filed its motion to dismiss the action upon the grounds heretofore set forth.
During the hearing on the motion to dismiss, Cities Service’s Exhibit No. 1 was introduced into evidence, the material parts of which read:
“Rules of Practice and “Procedure Before the Commission
“In Proceedings Under the Public Utilities Act, Motor Carrier “Act, Oil Conservation Act, Gas Conservation Act, “Kansas Securities Act, and Related Acts
“State Ccn'poration Commission
“article vh. — rehearings
“82-1-87. Application for. All applications for rehearing shall be made within ten days after the determination or order of the Commission is made and served pursuant to Rule 82-1-8. The application for rehearing will be granted or denied by the Commission either with or without hearing and argument thereon within ten days from the date the same shall be filed and if a rehearing is not granted within ten days, it shall be taken as denied. [Authorized by G. S. 1935, 66-106; Compiled, December 31,1947.]
“State Corporation Commission
“ARTICLE n.-MATTERS APPLICABLE TO ALL PROCEEDINGS
“82-1-8. Service of papers, manner. Notices, motions, pleadings, orders or other papers may be served personally or by mail except where the statute prescribes a specific mode of service which shall be followed. Service upon an attorney of record will be deemed to be service upon the party. Service by mail shall be deemed to be completed two days after the mailing of the notice or document to be served. [Authorized by G. S. 1935, 66-106; Compiled, December 31,1947.]
“82-1-9. Parties entitled to service. All persons, who have entered formal appearances in any proceeding, shall be served with all notices, motions, pleadings or orders filed or issued in said matter. [Authorized by G. S. 1935, 66-106; Compiled, December 31, 1947.]
“82-1-10. Orders of the Commission, when filed and when effective. All orders made by the Commission will be filed in the office of the Commission in Topeka. Orders of the Commission shall be deemed to become effective upon service pursuant to Rule 82-1-8 unless otherwise expressly provided in said order or by statute. [Authorized by G. S. 1935, 66-106; Compiled, December 31, 1947.]”
On October 8, 1962, the district court sustained Woodson’s motion to dismiss the action upon the ground previously stated. We are of the opinion, based upon conclusions hereafter stated, that Cities Service’s petition for rehearing was timely filed with the commission on May 9, 1962, and that the district court erred in dismissing the action for want of jurisdiction.
In 1931 the legislature declared in G. S. 1949, 55-601, et seq., as amended, that the production of oil under such conditions as to constitute waste as therein defined, was unlawful, and the commission was given jurisdiction over all matters involving the application and enforcement of the act, and it was empowered to make and enforce rules, regulations and orders to carry out and make the act effective. (G. S. 1961 Supp., 55-604.) Provision was also made for an orderly and prompt judicial review of any rule, regulation, order or decision of the commission, and the pertinent part of the statute (G. S. 1949, 55-606) reads:
“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. . . . Before any such action may be brought . , . a petition for rehearing shall first be filed with the commission within ten days from the date of the making of the . . . order, or decision in question. . . . Such action may be brought by any person aggrieved . . . within thirty days after the denial of the petition for rehearing, or, if rehearing is granted, then within thirty days after the final decision by the commission. . . . All actions brought under this section shall have precedence in any court and on motion shall be advanced over any civil cause of different nature pending in such court, and such action shall be tried and determined as other civil actions. . . .” (Emphasis supplied.)
A detailed analysis of the statute is unnecessary since that was done in Jackson v. State Corporation Commission, 183 Kan. 246, 326 P. 2d 280, Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 386 P. 2d 266, and Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 29, 386 P. 2d 288. As is observed, the statute does not define the time at which an order is deemed “made,” nor does it prescribe the mechanical procedures for the “making” of an order by the commission, nor does it prescribe a procedure for the “filing” or placing an order of record, nor provide when an order shall be made effective. In the absence of a definition in the statute itself, G. S. 1949, 77-201, Second, provides that words and phrases shall be construed according to the context and the approved usage of the language, and will be given their ordinary and accepted meaning.
Courts, common usage, and dictionary definitions are agreed that the word “make” has many meanings. (Webster’s New International Dictionary, Second Edition, Unabridged, p. 1485; Price v. Supreme Home, Tex. Com. App., 285 S. W. 310, 312; St. Louis Law Printing Co. v. Aufderheide, 226 Mo. App. 680, 45 S. W. 2d 543, 545; In re Aldridge, 168 Fed. 93, 98, 99; State v. Pierce, 175 Wash. 461, 27 P. 2d 1083; State v. O’Neil, 24 Idaho 582, 135 Pac. 60.)
Following the conclusion of a hearing, the commission goes through several mechanical and procedural steps in “making” an order. There is a conference, or conferences. Then follows the preparation of written minutes and a written order. The minutes are then signed by the members of the commission. Later, the signature of the secretary is affixed to the actual order on behalf of the commissioners. Then follows the duplication and service of the order upon the interested parties, usually accomplished by mail. In matters arising under the Oil and Gas Conservation Division of the commission, the duplication and mailing occurs at the office of the conservation division which by statute is located at Wichita. (G.S. 1961 Supp., 74-606.)
In view of the foregoing, it cannot be said that G. S. 1949, 55-606 is definite and clear of meaning when it speaks of the “making” of an order. Sound argument may be advanced for any of several constructions as to when an order of the commission is deemed to be “made.” It could be argued that the order is “made” at the conference when at least two commissioners agree to a particular order or decision. It could be argued that the order is “made” when the minutes are signed by at least two commissioners, or it could be advanced that, as urged by Woodson, the order is made when the secretary of the commission signs the order following the signing by the commissioners and the minutes and order are physically placed among the records of the commission. Or it could be said that the order is “made” when it is publicized and the interested parties are “apprised” of it through a formal means such as service of a copy upon them.
Since there is obviously more than one meaning which may reasonably be given the statute to achieve certainty and clarity, Wood-son’s argument that there is no room for construction or interpretation must necessarily fail.
While the statute (55-606) does not contain a provision specifically providing for notice of the commission’s order before the commencement of the ten-day period within which a petition for rehearing must be filed, this court has recognized the rule that where no express provision for notice is made in the statute, if there be nothing in the statute which prevents notice from being given, the requirement of reasonable notice will be implied. (Railroad Co. v. Abilene, 78 Kan. 820, 827, 98 Pac. 224; Tatlow v. Bacon, 101 Kan. 26, 165 Pac. 835; State, ex rel., v. Allen County Comm’rs, 143 Kan. 898, 901, 902, 57 P. 2d 450.) In reality, the court simply reads the provision into the statute in order to uphold its validity as against the Fourteenth Amendment and Sections 2 and 18 of the Bill of Rights of the Constitution of Kansas.
We think an order of the commission entered pursuant to G. S. 1949, 55-133 and 55-606 after notice to all interested parties and a full hearing of the issues, cannot be said to have been “made” for the purpose of defining rights of those seeking relief thereunder, when the substance of the order is merely in the bosom of the commission. Knowledge of the substance of the order must be made manifest by notice to the interested parties.
The Oil Conservation Act empowers the commission to promulgate rules and regulations to carry out and enforce the act (G. S. 1961 Supp., 55-604, 55-605) and the commission has consistently applied the rules quoted above since they were compiled in 1947. Those rules are within the power of the commission to promulgate, and they place a reasonable construction upon the statute for determining when an order is considered “made.” In the construction of a statute, and particularly one of this character, the interpretation placed upon it by an administrative agency whose duties are to carry the legislative policy into effect, should be given great weight, and may be entitled to controlling significance when the scope and limitations of such powers must be determined in judicial proceedings. (Southwestern Bell Telephone Co. v. Employment Security Board of Review, 189 Kan. 600, 607, 371 P. 2d 134, 93 A. L. R. 2d 1312.)
By requiring notice to be given pursuant to its rules, the commission has satisfied the requirements of the statute, and the “making” of the order is to be considered effective upon service pursuant to Rule 82-1-8, unless otherwise provided in the order. Under that rule, service of an order may be made personally or by mail except where otherwise provided in the statute, and as we have seen, the statute makes no other provision. Service by mail shall be deemed completed two days after the mailing of the order, which, in this case, was May 2, 1962, and the time in which a petition for rehearing may be filed begins to run from that date. Contrary to Woodson’s contention, the case of Colorado Interstate Gas Co. v. State Corporation Comm., supra, p. 1, does not reach the question of when an order is “made” for the purpose of determining whether a petition for rehearing has been timely filed.
The importance of the question here presented is demonstrated by the following: The district court’s judgment that Cities Service’s petition for rehearing was not timely filed with the commission was entered on December 13, 1962. Referring to matters of public record in the office of the commission, which this court may judicially notice, from January 1, 1963, through February 10, 1964, approximately 400 orders were made by the commission pertaining to salt water disposal and repressuring applications filed with the commission. Under the ruling of the district court, the ten days for filing a petition for rehearing had expired before 196 of those orders were mailed to the interested parties. In addition, the commission issued over 1200 orders pertaining to oil and gas conservation matters during a period commencing January 1, 1963, and extending through February 4, 1964. The commissions records show that under the ruling of the district court, the ten days for filing a petition for rehearing had expired before 542 of those orders were released by the commission and mailed to the interested parties. Thus, out of a total of approximately 1600 orders of the commission, the parties affected by 738 of such orders would be precluded from filing timely petitions for rehearing or subsequently seeking a judicial review of such orders. Under the district court’s ruling those 738 orders became final before they were mailed by the commission and notice given to the parties affected thereby. As is noted, this appeal does not concern an isolated order, but, rather, it pertains to the rights of innumerable people with respect to the mineral resources of the state, and has a substantial impact on administrative proceedings of the commission.
While Woodson argues that the rules quoted above may only be applied to public utility matters for the reason that the authority cited for their adoption is G. S. 1949, 66-106, et seq. (see, also, G. S. 1949, 77-405, et seq.), it is clear that the commission has authority to adopt rules and regulations to enforce the oil conservation act, and we think those rules are applicable to oil and gas conservation proceedings before the commission and they are entitled to controlling significance as to when an order is “made” for determining the time in which a petition for rehearing may be filed.
Woodson argues that Cities Service did not properly initiate its proceedings in the district court so as to invoke the jurisdiction of that court for judicial review. The statute (55-606) has been construed adversely to the contention. In Jackson v. State Corporation Commission, supra, speaking of that section, it was said:
“It is apparent the legislature created a specific statutory action for judicial review of any rule, regulation, order or decision of the commission in oil and gas matters. The only prerequisite for the filing of such action is that a petition for rehearing first be filed with the commission within ten days after the date of the making of the commission’s order or decision. The statute simply sets forth that a party may obtain judicial review of an order or decision of the commission by bringing an action for that purpose within thirty days after denial of a petition for rehearing, or if a rehearing is granted, within thirty days after final decision by the commission. The statute provides the action shall take precedence over civil actions of a different nature, and shall be tried and determined as are other civil actions. It provides the procedure, and the powers and duties of the district court. The details required in the petition cannot be determined from the requirements in other types of actions but must be determined from the provisions of this statute. . . .” (l. c. 249.)
And it was further said:
“We are of the opinion that the legislature prescribed the procedure to be followed in an action for judicial review of an order or decision of the state corporation commission in matters pertaining to oil and gas, that the procedure is complete within itself and it is not necessary to look to other statutes providing for judicial review in determining the requirements under 55-606.” (l. c.250.)
Under any conceivable construction of the proceedings in question, Cities Service’s action for judicial review was properly instituted under Section 55-606 in the district court of Anderson County and Woodson’s contention that other statutes should have been followed in initiating the judicial review action is without merit. Nor was it necessary for Cities Service to join Woodson as a party defendant in the judicial review action. The statute expressly states that the action shall be brought against the commission. In Colorado Interstate Gas Co. v. State Corporation Comm., supra, p. 29, it was made clear that the proper party defendant in a judicial review action is the commission. It was held that the reviewing court was not concerned with individual grievances nor with resolving disputes between the parties, and the reviewing court’s sole responsibility was to review and determine the validity of the commission’s order. Hence, it was not necessary or proper to name Woodson as a defendant.
Other points have been raised by the parties, but in view of what has been said, it would unduly extend this opinion to state and decide them. What has been said disposes of this appeal.
The judgment of the district court is reversed.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
On August 3, 1960, while the defendant, Virgil Eugene Kelley, was confined at hard labor in the Kansas State Penitentiary at Lansing for a term less than life, and while working outside the walls of the prison as a trusty, he escaped. He was apprehended and returned to the custody of the warden to serve the sentence previously imposed. Thereafter the defendant was charged, tried and convicted by a jury in Leavenworth County with the violation of G. S. 1949, 21-734 which makes it a felony to escape from the custody of prison officials under the foregoing circumstances and prescribed a penalty of not exceeding three years, to commence at the expiration of the original term of imprisonment.
Following the trial the defendant, by and through his attorney, filed a motion for a new trial which was considered by the district court on November 18, 1960, and overruled. On the same day, the court imposed sentence upon the defendant in accordance with the provisions of G. S. 1949, 21-734, and sentenced him to confinement at hard labor in the Kansas State Penitentiary for a term not exceeding three years, the sentence to begin at the expiration of the original sentence then being served by the defendant.
The defendant timely filed this appeal pro se and prepared and filed his abstract and brief pursuant to Rule No. 5 of this court. Upon his application to the district court in accordance with Prefatory Rule No. 1 (f) (192 Kan. II) for the appointment of counsel to prosecute his appeal, the court appointed Mr. James E. Fussell, an able and experienced member of the Leavenworth County Bar.
We shall refer to the parties as the state and the defendant.
Following his appointment, counsel filed a supplemental brief on behalf of the defendant presenting two questions in addition to those set out in the defendant’s brief pro se. The questions arise out of testimony given by the defendant on cross and redirect examination during the trial, to the effect that he had served in the Navy; that during his Naval service he had trouble with his mental faculties; that he had received mental treatment while in the service, and that he was given an honorable medical discharge from the Navy for his mental condition. It is first claimed the district court erred in not stopping the trial and ordering a commission appointed pursuant to G. S. 1949, 62-1531, to examine the defendant to determine whether he was insane, unable to comprehend his position, and make his defense. It is further claimed that the defendant’s trial counsel improperly represented him when he failed to ask the court to stop the trial and request the appointment of a commission pursuant to the statute to determine the defendant’s sanity.
The question of the competency of any defendant tried for a felony is a most vital matter. It is the policy of the law of this state not to try persons while they are insane. Our statute, G. S. 1949, 62-1531, and our decisions, State v. Ossweiler, 111 Kan. 358, 207 Pac. 832; State v. Brotherton, 131 Kan. 295, 302, 291 Pac. 954; State v. Lammers, 171 Kan. 668, 237 P. 2d 410, and State v. Severns, 184 Kan. 213, 336 P. 2d 447, contemplate that when an accused is afflicted with any of the types of insanity or mental disability specified in the statute, or any claim is made in his behalf that he is so afflicted, either before, or during the trial and before the verdict is rendered, it becomes the duty of the court and counsel of record to ascertain by one of the statutory methods whether he is in a fit mental condition to be proceeded against. It is a basic requirement of our law that a proper determination of the competency of the defendant should be made in every case where a real doubt is raised as to his competency. In State v. Badders, 141 Kan. 683, 42 P. 2d 943, it was said:
“. . . When during a trial it is brought out by the testimony of any witness, or is called to the attention of the court by anyone connected with the case, that the defendant then on trial is insane, or that there is a serious question as to his sanity at that time, it is the duty of the court to stop the trial and make an inquiry concerning that matter. (State v. Detar, 125 Kan. 218, 263 Pac. 1071.) . . .” (l. c. 686.)
When a proper showing of insanity is made, the law in effect makes the application for an inquiry for the defendant. No formal application is necessary under such circumstances. (State v. Brotherton, supra; State v. Ossweiler, supra.)
The same question here urged was presented in State v. Collins, 162 Kan. 34, 174 P. 2d 126, and it was said:
“From these salutary and humane principles this court has no desire to detract. They are justly designed for the protection of persons to be tried for crimes when they are incapacitated to properly defend themselves. On the other hand, they are not intended to furnish a technical means of nullifying just verdicts solemnly reached by judicial process. In order to reverse the trial court on the instant complaint we would be obliged to hold, as a matter of law, the record compelled the trial court to entertain a real doubt with respect to appellant’s sanity or capacity to make a proper defense. The question of such doubt addressed itself to the sound discretion of the trial court. It was the trial court in whose mind a real doubt of sanity or mental capacity to defend had to be created. . . .” (L. c. 39.)
See, also, Brewer v. Hudspeth, 166 Kan. 263, 269, 200 P. 2d 312, and State v. Smith, 173 Kan. 813, 815, 252 P. 2d 922.
In applying our statute (G. S. 1949, 62-1531) the test of a defendant’s sanity is not the so-called M’Naghten or “right and wrong” rule. That rule concerns sanity in the sense of criminal responsibility for an act. (State v. Hickock & Smith, 188 Kan. 473, 363 P. 2d 541; State v. Latham & York, 190 Kan. 411, 428, 375 P. 2d 788.) The question here presented concerns sanity for the purpose of being triable. Sanity in this respect is determined by appraising the present ability of the defendant to understand the nature and purpose of the proceedings taken against him and his ability to conduct his own defense in a rational manner. (State v. Brotherton, supra; State v. Badders, supra.) If the district judge has a real doubt as to the sanity of the defendant, or from his observation, reasonable claim, or credible source, he concludes there is a real doubt as to the defendant’s mental condition to comprehend his situation or make his defense, it is the duty of the judge to order the inquiry even though not requested. (State v. Collins, supra; Brewer v. Hudspeth, supra.)
As previously indicated, whether a district court on its own initiative should order an inquiry into the defendant’s sanity is a matter addressed to its sound judicial discretion, and its decision will not be disturbed in the absence of an abuse of that discretion. (State v. Collins, supra; State v. Smith, supra; 23 C. J. S., Criminal Law, § 940 [2] [b]; 142 A. L. R. 966.) The defendant has the burden in this respect (5 Am. Jur. 2d, Appeal and Error, § 775, p. 218; 5A C. J. S., Appeal and Error, § 1584, p. 38) and a strong showing is required to show an abuse thereof. (People v. Gomez, 41 Cal. 2d 150, 258 P. 2d 825.) In State v. Penry, 189 Kan. 243, 245, 368 P. 2d 60, it was held that the presumption that an accused is sane and responsible for his acts exists until the contrary is shown by sufficient evidence. Where, as here, it is urged that the district court had, or should have had, a doubt as to the present sanity of the defendant, the court’s failure to order the inquiry on its own motion is aided by that presumption.
At most, the defendant’s testimony related to his condition when he received a discharge from the Navy in 1947; it did not relate to his condition at the time of the trial, and there was no evidence he was experiencing mental difficulty at that time. No claim was made before or during the trial that the defendant was insane or incapable of making an adequate defense, nor did his testimony indicate his incapacity to do so at that time. Under these circumstances, it would be somewhat stronghanded to conclude the district court abused sound judicial discretion in failing to order an inquiry to determine the defendant’s sanity under the statute. A careful analysis of the record convinces us that although it might have been proper to have had an inquiry, we are not prepared to say the district court abused sound discretion in not ordering it. As in other cases involving factual questions, the district judge is in a far better position to view and evaluate the acts, demeanor and capacity of a defendant than is this court. (State v. Collins, supra.)
With respect to the contention that the defendant was not properly represented by his counsel by reason of his failure to request a sanity hearing, we need only say that the record fails completely to support the contention. We cannot say, as a matter of law, the record compelled the district court to entertain a real doubt with respect to the defendant’s sanity or capacity to make a proper defense, or that because his counsel did not request such a hearing, he was given inadequate representation at the trial by his attorney. On this point see Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147.
We turn now to points raised by the defendant’s brief pro se. He first contends that he was, “. . . twice placed in jeopardy by the Kansas Legislature who passed a Statute in 1957, Allowing the Kansas State Board of Parole and Probation to remove from his sentence 383 good days earned, for the same offense. . . .” Following his apprehension and his return to the custody of the warden, the Board of Probation and Parole (G. S. 1961 Supp. 62-2228), through administrative action took from the defendant “383 good days” credit which he had earned in serving the original sentence. He claims that the legislature may not enact two laws and invoke both of them on an individual for the same offense, that is, it may not enact a statute defining a crime (escape) and providing punishment therefor, and also enact a statute empowering a board to take away good time earned on his original sentence because he escaped.
It is evident that the question of work and good behavior credits which the defendant may have earned while serving the original sentence is not an issue in this appeal. It is further evident that the defendant was not subjected to double jeopardy under section 10 of the Rill of Rights of the Constitution of Kansas when he was prosecuted for escape. (G. S. 1949, 21-734.) He was placed on trial only once for the offense, and the jury found him guilty. (In re Brown, 139 Kan. 614, 622, 32 P. 2d 507.) See, also, State v. Carte, 157 Kan. 673, 143 P. 2d 774, and Lawton v. Hand, 186 Kan. 385, 350 P. 2d 28.
The defendant next claims that the information was insufficient to allege a public offense, and that the court erred in not sustaining a motion to dismiss the proceedings for lack of evidence. The point is not well taken. The information was substantially in the language of the statute (G. S. 1949, 21-734), and that is sufficient. (State v. Harris, 150 Kan. 536, 95 P. 2d 269; State v. Hill, 189 Kan. 403, 412, 369 P. 2d 365, 91 A. L. R. 2d 750.) Furthermore, the evidence amply supported the jury’s verdict finding the defendant guilty of the crime alleged in the information.
The defendant lastly contends that his attorney was incompetent and did not adequately represent him because he failed to ask for a bill of particulars prior to the trial requesting pertinent data such as the date and time and place of escape. There is no merit in the contention. The information alleged that on August 3, 1960, in Leavenworth County, the defendant, there being confined at hard labor in the Kansas State Penitentiary for a term less than life, and while working outside the walls of the prison as a trusty, did unlawfully, willfully and feloniously escape therefrom. It is only in the rarest of instances that this court has approved the filing of a bill of particulars requesting the state to plead further with respect to the public offense charged. Such a pleading would serve no useful purpose in the instant case. The information was specific with respect to all allegations necessary to advise the defendant of the crime with which he was charged, and to enable him to prepare his defense.
We have fully reviewed the record, and finding no reversible error we affirm the judgment of conviction.
It is so ordered.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
Defendant, Carroll D. Mallett, has appealed from a conviction of the offense of robbery in the first degree (G. S. 1949, 21-527).
In the evening of April 24, 1962, three men entered a grocery store in Wichita and announced that “it was a holdup.” Two of them — and possibly the third — carried guns. Several employees and customers were in the store at the time. The details of the holdup need not be narrated. Approximately $4,000 belonging to the store, and other items, were taken.
About a month later defendant Mallett and two other men, by the names of Wilson and Price, were taken into custody in Green Bay, Wisconsin. They were returned to Wichita. All three were charged in the same information. Later it appears that Price, through “alibi” affidavits, apparently convinced the authorities that it was physically impossible for him to have participated in the robbery. In any event, the charge against him was dismissed and he was discharged.
Defendant and Wilson were granted separate trials. We are told that Wilson was tried first and that he was acquitted by the jury.
Defendant was found guilty as charged. The penalty for conviction of robbery in the first degree is confinement for not less than ten years nor more than twenty-one years (G. S. 1949, 21-530). Having previously been convicted in the federal court in Arizona of transporting a stolen automobile in interstate commerce, the provisions of the habitual criminal statute (G. S. 1949, 21-107a) were invoked, and he was sentenced to confinement for not less than twenty years nor more than forty-two years. His motion for a new trial was overruled and this appeal followed.
Shortly after their return to Wichita from Wisconsin defendant and Wilson advised the authorities that they were represented by an attorney from Arkansas. The record discloses that perhaps local counsel also had been retained. One afternoon defendant and Wilson were brought to the interrogation room of the courthouse and were questioned by detectives Triplett and Brown. The four of them were in the room together. At the trial the detectives testified for the state. Brown testified that defendant and Wilson were asked if they would give a statement concerning the robbery, and that Wilson replied that if the attorney so advised “they would give us a statement in connection with the robbery.” In his brief defendant contends it was error to admit testimony of this conversation, and some point is made of the fact there was no “identification” of the persons speaking. Upon oral argument of this appeal it was further contended that defendant’s rights were violated by the fact the officers attempted to interrogate him and Wilson at a time when they were represented by counsel.
There is no merit to either of these contentions. In the first place, the testimony of Brown was merely cumulative of that previously given by Triplett, to which no objection was made. In the second place, defendant was present during the entire questioning, and it was not error to permit Brown to relate the statement by Wilson. (The State v. Cruse, 112 Kan. 486, syl. 6, 212 Pac. 81; State v. Cottrell, 120 Kan. 312, 313, 243 Pac. 296; State v. Davis, 133 Kan. 571, syl. 2, 300 Pac. 1114.) And finally, the mere fact that defendant and Wilson had retained counsel did not preclude the authorities from interrogating them concerning the offense with which they were charged. This is not one of those instances in which it has been held that it was error to “extract” a confession from one in custody prior to permitting him access to counsel.
When being cross-examined by counsel for defendant, detective Triplett was asked why it was that Price had not been included in the interrogation above related, and he was specifically asked if there was any reason why they, the detectives, did not want him, Price, in on the conversation. Triplett replied in the affirmative— that there was a reason. He then was asked what the reason was, and answered: “These men [meaning defendant and Wilson] had criminal records which they admitted, and they wanted to talk about what would be done — ”
It is contended such reference to the prior criminal record of defendant constituted prejudicial error and that the court erred in refusing to strike the answer. The contention is without merit. In the first place, the answer was responsive to the question, and, being brought out and elicited on cross-examination, defendant cannot now complain. The incident is not to be confused with those cases dealing with the rule that ordinarily the state in its case in chief is not permitted to introduce evidence of other offenses.
It also is contended the court erred in giving instruction No. 3 on aiding and abetting, and instruction No. 7 which touched on the subject.
This contention likewise is without merit. The two instructions were correct statements of the law and, under the evidence, were proper, and in no way were prejudicial to defendant’s rights.
It next is contended the trial court erred in refusing to instruct that the charge as to Price had been dismissed by the state and that Wilson had been acquitted.
The record discloses, however, that the contention is broader than the requested instruction which was refused. The substance of it was to the effect that the case was originally filed against defendant, Wilson and Price; that the case was still pending as to defendant, and that upon Price’s filing notice of a plea of alibi by affidavits of six persons in Arkansas the case was dismissed by the state as to him without prejudice.
In the case at bar the sole issue was the guilt or innocence of defendant, and the disposition of the charges against Price and Wilson was of no concern to the jury. The fact of the dismissal as to Price, and the acquittal of Wilson by another jury, had no place in the instructions in the case against defendant, and the court did not err in refusing to give the requested instruction.
And finally, it is contended the court erred in refusing to discharge defendant at the close of the state’s evidence and in failing to grant a new trial.
Neither of these contentions has merit. Defendant was positively identified by several of the state’s witnesses and it was for the jury to believe or disbelieve their testimony. An examination of the record fails to establish anything approaching prejudicial error, and the motions for discharge and for a new trial were properly overruled. (State v. Haught, 180 Kan. 96, 100, 299 P. 2d 573; State v. Dill, 182 Kan. 174, 175, 319 P. 2d 172; State v. Crosby, 182 Kan. 677, 324 P. 2d 197, 76 A. L. R. 2d 514, and State v. Smith, 187 Kan. 42, 45, 46, 353 P. 2d 510.)
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Frank Theritt and others, against John T. Braidy and others, to restrain the latter from interfering with Theritt while discharging his duties as a member of the council of the city of Wathena. Said city was a city of the third class, and therefore its council consisted legally of five members. (Laws of 1871, page 122, § 15.) A. J. Selover, Henry Dockhorn, 'Peter Deiter, and Benjamin Harding, are admitted to have been four of such members. Who the other member was, is a disputed question. The office however belonged to Theritt, or to Braidy. Both claimed it. Both claimed to be entitled to the office, and both claimed to be in the actual possession thereof. And which was in the actual possession thereof, is really the only question that is now involved in this case. Or rather, the only question that is now involved in this case is, whether Theritt was in the actual possession of said office at the time that this action was commenced; for if he was not in such possession at that time, then he cannot maintain this action. All other questions have been settled and adjusted by the pleadings and evidence, leaving only this one question for our consideration.
It is admitted that for the year previous to the election held on April 5th 1875, Theritt was a member of the council, and had the actual possession of said office. And it is also admitted that Theritt continued in the actual possession of said office until April 30th 1875, when it is claimed by Braidy that he (Braidy) was duly qualified as the successor of Theritt, and that he (Braidy) took the actual possession of such office. Under the law, Theritt would have continued to hold said office until his successor was duly elected and qualified. (Laws of 1871, page 120, § 5.) Theritt claims that he was his own successor, and that he not 'only held the office up to April 20th 1875, but that he still continues to hold the same. Theritt and Braidy were opposing candidates for said office at said election. Theritt claims that he received a majority of all the votes cast, and that he was therefore duly elected, but Braidy on the other hand claims that the vote was a tie as between himself and Theritt, and that the judges of the election under the law by lot decided in his Braidy’s favor. (Laws of 1871, page 120, § 5.) Theritt however received the certificate of election, and qualified under the same, as his own successor, by taking the proper oath of office on April 13th 1875. On April 20th 1875, the council met in regular session — present, Councilmen Selover, Dockhorn, Deiter, Harding, and Theritt. There can be no question but that Theritt was at that time in the actual possession of the office. Braidy was also present. The mayor was also present, and presided at the meeting. On the first vote being taken, the mayor refused to recognize Theritt as a member of council, claiming that Braidy was elected to fill Theritt’s place, whereupon Councilmen Selover, Dockhorn, and Theritt, retired from the meeting. Braidy was then sworn in as a councilman, and he with Councilmen Deiter and Harding proceeded to do business as a city council, and the mayor recognized them as such. Now evidently, Theritt, Selover, and Dockhorn had no intention of abandoning their offices when they retired from the council meeting. They did not intend to create vacancies in their offices, whereby Braidy or any one else could step in and become a member of the council, defacto, or otherwise. They simply intended to leave the council without a quorum, so that the mayor and the two members of the council who recognized Braidy’s claims could not do any business. Theritt has never abandoned his office. He has never created such a vacancy in his office that any other person could step in and become an officer defacto; and therefore Braidy has not become a councilman de facto. Or at most, we do not think that he has become such an officer de facto that he can receive any benefit therefrom as against the person whom he has illegally attempted to oust from office. As between Braidy and Theritt, Theritt must be considered as the officer de facto. It would be strange doctrine to announce, that whenever an officer steps out of the place where he usually does business, that any person who may choose to claim the office may at once step in, and become immediately an officer de facto. Such a short road to obtain a contested office has never yet been opened. This is not the legal way to obtain the possession of a disputed office. The only legal remedy in such a case for the party out of office" to obtain possession of the same is by a civil action in the nature of quo warranto. We have already held that two persons cannot be officers de facto for the same office at the same time. (McCahon v. Leavenworth Co., 8 Kas. 437.) And we have also held that the officer de facto is the proper person to hold the office pending any contest therefor. (The State v. Durkee, 12 Kas. 308, 314.) In the present case we have this state-of facts, briefly stated: On April 20th 1875, Theritt had been acting as councilman for over a year, and was then attempting to act under a certificate of election for another year. Braidy had never (so far as the record shows) acted as councilman, and had no certificate of election. Theritt steps out of the place where the council did their business, and Braidy steps in. Theritt had no intention of abandoning the office, and Braidy well knew that Theritt claimed the office. Do these facts take the office away from Theritt, and give the same to Braidy? We think not. Certainly not as between Braidy and Theritt.
The order of the court below will be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a note and mortgage. The mortgage contains among others the following stipulation, to-wit:
“And said parties of the first part” (William Dale and Elizabeth Dale, his wife,) “hereby promise and agree to and with said party of the second part ” ( The Life Association of America,).“that in any action that may be brought for any amount that may be due and unpaid upon said note, or interest notes, or by virtue of any of the provisions of this mortgage, or to enforce the same, the party of the second part or its successors or assigns shall be entitled to and may have, recover, and receive,, of and from said parties of the first part ten per cent, upon the amount due and recoverable at the time payment shall be made or judgment rendered, as and for liquidated fees and compensation of the attorney or attorneys of the parties of the second part, or its assigns, for services in such action; and such amount shall be ah additional lien upon the property hereby mortgaged, and shall’ be included in any judgment rendered in any action as aforesaid, and collected and the lien thereof enforced, in the same manner as the principal debt hereby secured.”
This stipulation was duly set forth in the plaintiff’s petition, and the plaintiff duly prayed for judgment in accordance therewith and with the other allegations of the petition. The defendants did not answer, but made default. The plaintiff then moved the court for judgment in accordance' with its said petition; and while this motion was pending the defendant came‘into court and tendered everything that was due on said note and mortgage except said attorney-fees, and also tendered the costs of suit; whereupon the court ordered that the sum so tendered be paid to the clerk subject to the plaintiff’s order, and the same was so paid; and thereupon the court overruled the plaintiff’s mo tion for judgment. The defendants then moved the court to dismiss the plaintiff’s action, which motion the court sustained and dismissed said action. It will be seen from this that the court below refused to allow the plaintiffs any attorney-fee; and this ruling the plaintiffs now assign for error.
The note and mortgage in this case were executed April 5th 1871, for $500, due in two years from date, with twelve per cent.-interest. This suit was commenced May 8th 1874; and the action was dismissed August 3d 1874. At the time the action was dismissed the amount due on the note and mortgage for principal, interest, and taxes paid, as agreed by the parties and found by the court, was $568.28. This amount, together with $11.50 costs, is the amount that was tendered and paid to the clerk as above stated. The plaintiff now claims that the defendants should have tendered $56.82 more, as and for attorney-fees; and as he did not tender the same, the court below erred in refusing to render judgment for that amount, and in dismissing the plaintiff’s action. .We are inclined to think that the plaintiff is correct, and that the court below did err. At least, we think a judgment should have been rendered for the plaintiff for some amount as attorney-fees, and prima fade $56.82 was the proper amount; and there is nothing in 'the record showing that it should have been any other amount. -It has already been decided in this court that such a stipulation as the one contained in the foregoing mortgage, is legal and valid. And therefore the only question for us now to consider is, whether the tender of the amount due on the note and mortgage, and just before judgment was rendered thereon, is sufficient to entirely relieve the mortgagor from all obligation to pay an attorney-fee in the case. The mortgage in this case stipulates, that “in any action that may be brought,” etc., the plaintiff “ shall be entitled to, and may have, recover, and receive of and from” the defendants “ten per cent., upon the amount due and recoverable at the time payment shall be made, or judgment rendered, as and for liquidated fees and compensation of the attorney or attorneys of” the plaintiff. And there is no stipulation in the mortgage that said attorney-fee should not be allowed if payment of the amount of the note and mortgage be made while the suit is pending, so that no judgment can be rendered for that amount. Said stipulation evidently contemplated the payment of an attorney-fee if suit were brought on the note and mortgage, even if nothing more were done before the payment of the amount due thereon than merely to commence such suit. But it also contemplated that the said amount of ten per cent, on the amount paid or recovered should be full compensation for the entire services of an attorney for the plaintiff from the commencement of the action until its final conclusion. Hence, if the defendants at any time after suit was brought, and before its final termination, stopped all further proceedings' in the case by the ‘full payment of everything due therein, he would be entitled to an equitable abatement of said ten per cent, attorney-fees in proportion as the value of the services which the plaintiff’s attorney was relieved from performing would have been to the valije of the whole of the services of the plaintiff’s attorney if the case had been allowed to proceed to its final determination without any payment being made therein.
The judgment 'and order of the court below must be reversed, and cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Beewee, J.:
Action on a note. The petition was in due form. The answer was, failure of consideration. On trial, defendant offered testimony in support of his answer. The testimony was rejected, and exceptions taken. The court then instructed the jury that the defense had failed, and to return a verdict for plaintiff,-which was done. Exceptions were taken to the instructions. The verdict was returned on March 27th. A motion for a new trial was filed April 5th. The grounds of the motion were the matters above stated. The motion was overruled. This ruling was right. The motion was filed out of time. Gen. Stat. 687, §308; Mitchell v. Milhoan, 11 Kas. 617. If it had been sustained it would have been error calling for a reversal. Odell v. Sargent, 3 Kas. 80. Where the grounds of a motion for a new trial do not ■ appear, it is impossible to determine whether there was error in overruling it. Ferguson v. Graves, 12 Kas. 39.
Counsel for plaintiff in error would ignore the motion filed in the district court, and ask us to grant a new trial because of the errors on the trial. Cam this be done ? If it can, the motion for a new trial is a useless ceremony,- and might as well be abandoned altogether. A party has no abstract, in- ' herent right to a new trial. He has a right because and so far only as the statute gives it to him. It prescribes the way to obtain it, and that is by motion filed within three days. If he fails to pursue this mode he loses the benefit of any errors on the trial, and is concluded as to all matters occurring at the trial. It will be noticed that the errors complained of are only those occurring on the trial, and that the relief sought is strictly and solely a new trial because of such errors. It is not pretended that the pleadings do not warrant the judgment, or that there are any errors apparent in the record except in those proceedings of the trial which are brought into the record solely by bill of exceptions. It would seem a contradiction to hold that the district court properly overruled a motion for a new trial founded upon certain errors in the trial, and at the same time that a new trial must be granted because of those same errors. It is a common ruling, that where it is claimed that the verdict is against the evidence a motion for a new trial founded upon that claim must be decided by the district court before the question will be considered in the reviewing court. Polk v. The State, 3 Mo. 544; Floeseh v. Bank, 10 Mo. 516; Rhodes v. White, 11 Mo. 623; Poyne v. The State, 13 Mo. 444; Kepner, Adm’r, v. Snively’s Adm’r, 19 Ohio, 296; Westfall v. Dungan, 14 Ohio St. 276; Donohue v. The County, 2 Penn. St. 230; Farris v. The State, 35 Ga. 241; Hayward v. Ormsbee, 11 Wis. 3; Jewitt v. Whalen, 11 Wis. 124; Barnes v. Barber, 1 Gilman, 401; Smith v. Gillett, 50 Ill. 290; Kent v. Lawson, 12 Ind. 675; City of Aurora v. West, 22 Ind. 88; Hallock v. Iglehart, 30 Ind. 327. The ruling is not so uniform where the alleged error consists in admitting or rejecting testimony, or in the instructions. In the cases from Missouri and Indiana, above cited, the ruling is, that such error will not be considered in the absence of a motion for a new trial. So also is the decision in Evans v. Lohr, 2 Scam. 511. But the contrary is held in 11 Wis. 3, and 50 Ill. 290. This latter case reviews and disapproves of Fhans v. Lohr, supra. And many cases can be found in which the courts of review have set aside the judgments of lower courts on account of error in respect to the testimony or instructions, when no motion for a new trial was filed. Doubtless such rulings were correct, though we are not sufficiently familiar with the practice of statutes of the states in which these decisions appear, to have any opinion upon the question. Perhaps such matters were not proper subjects of motions for new trial, or such motions may have been (as in some decisions they are said to be) merely addressed to the discretion of the trial court, and therefore the ruling on them not the subject of review. In the case of Kent v. Lawson, supra, it is said that “any matter for which a new trial may be granted is waived by the neg lect of the party to move for a new trial;” and such seems a fair statement of the rule as it obtains in the practice here. The granting of new trials is not a matter of discretion with us. It is a matter of strict right. Special grounds for the motion are named in the statute. “Error of law occurring at the trial, and excepted to by the party making the application,” is one. Gen. Stat. 687, § 306. Error lies to this court from an order granting or refusing a new trial. Gen. Stat. 736, §542. But it is said that this court may reverse the judgment of the district court for “errors appearing on the record,” (Gen. Stat. 735, §542,) and this error is brought onto the record by bill of exceptions. If a bill of exceptions is proper in any case, and without reference to whether there be a motion for a new trial, it would seém that any error that occurs may be reviewed by the supreme court without any motion for a new trial. In such case the value of those provisions of the code concerning new trials would seem slight. It cannot be meant that the supreme court must reverse for any error which it finds on the record. Some errors work no prejudice, and are immaterial. ' Some are not excepted to, and some are waived. Among those waived are “ errors occurring at the trial” and not presented in a motion for a new trial.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant was convicted of an assault in the district court of Chautauqua county, and from that conviction appeals to this court. He insists that the information is insufficient in not specifically alleging that the offense was committed within the state of Kansas. The very question has already been presented to and decided by this court, and a similar information adjudged sufficient. The State v. Walter, 14 Kas. 375. We see no reason to alter the views therein expressed. The principal question however, is presented by the following bill of exceptions:
{Title.) September Term, 1876. 'Be it remembered, that after this case had been submitted to the jury, and after the jury had deliberated upon their verdict several hours, they were brought into court, and asked by the court if they had agreed upon a verdict. The jury having answered in the negative, the court addressed them in substance as follows :
“Gentlemen of the Jury: I am led to infer from the character of your communications to me that you think it impossible to agree, and desire to be discharged. You have heard the evidence, and the case has been ably argued by counsel, and the court has afforded every facility to enable you to understand the case. The trial has been very expensive to the public, and has occupied a great deal of time and attention, and it is not possible that it will ever be more clearly presented than it has been in this its first presentation to a jury. I do not desire to try the case again. It is often considered a reflection on the court, and upon you, as jurors, should you not agree. You have been impanneled to come to an agreement, not to wrangle over pet ideas and theories. It is the duty of the jury to agree if possible. The theory of an agreement by the jury is, that twelve minds are brought as nearly together as it is possible for twelve minds to come. To bring about this result, it is necessary for the individual juror (in matters of detail, and on questions of minor importance,) to defer to some extent to his fellow jurors, and to surrender some of his own ideas and opinions to what seems to be an overwhelming sentiment against him. None of us are infallible. And in your deliberations you should realize this, and mutually depend upon each other. And in the consideration of .the details of the case, you should meet the questions as they arise, in a spirit of mutual concession and forbearance, and thus gradually as you proceed step by step to arrive at a conclusion to which you can all assent, although if left to yourselves you would probably come to a different conclusion. You should bring your minds together like the mixing of different ingredients by an apothecary, and ascertain what is the product. In a case of this importance I feel it to be my duty to afford you the most ample opportunity to agree. It is not my purpose to force you to a verdict not in accordance with your convictions. My experience with juries has taught me that they often agree after they have imagined it impossible to do so, and after the agreement they have been surprised that they ever disagreed. I hope this will be your experience. I therefore urge upon you to make another effort, in a spirit of reconciliation, and fairness to each other, to the accused, and to the public, and if possible agree upon a verdict; and I warn you not to think of being discharged for some time to come.” ’
To the giving of which charge or instruction, and each and every part thereof, defendant at the time duly excepted — first, because said instruction was not in writing. [This objection was entered after the delivery of the foregoing to the court, but counsel for the defendant had no intimation that the court intended to address the jury as above until after the address was delivered.] Second, because said instruction, and each and every part thereof, is error in law; third, because the giving of such instruction, after the retirement of said jury for deliberation upon their verdict, is erroneous, and unauthorized; But the court overruled such objections, and each of the same, to which the defendant at the time duly excepted, and still excepts, and asks the court to sign this his bill of exceptions, and make the same part of the record, which is done accordingly, this 15th of September 1876.
W. P. Campbell, Judge.
We are constrained to believe, after a careful examination of the record, that the jury were misled by this instruction, and that there ought to be a retrial. The testimony impresses us forcibly with the conviction, that the defendant was either guilty of an offense higher than that of which, he was found guilty, or guiltless of any offense. The prosecuting witness, and his wife, testified that defendant and another party came to their house in the night-time, and standing within twenty feet, fired several shots into the building. The building was a log house, one story, and one room, and the chinking between the logs had dropped out so that the cracks between the logs were open, from the width of a hand, up. Some of the bullets passed through the bedtick upon which prosecuting witness and his wife were sleeping. There was testimony also of a previous quarrel, and ill-feeling between the parties. The defendant denied the shooting, or being present at or near the house of the prosecuting witness that night, and testified that he was at his own home all the night. There was also corroborating testimony, but there were distinctly the two lines of evidence. Now had the jury credited the defendant’s testimony, they could not have done otherwise than acquit; and it seems to us, that had they credited the testimony of The State, they must have found the defendant guilty of something more than a mere assault. And the punishment which the cpurt imposed, a fine of five hundred dollars, indicates its judgment as to the aggravated character of the offense. It also appears, both from the bill of exceptions and from other parts of the record, that the jury were for a long time unable to agree; and if we may credit some of the affidavits filed upon the motion for a new trial, were evenly divided. It seems to us under these circumstances, that the remarks of the learned court were calculated to exert too strong a pressure upon the jury in favor of the agreement. It may not perhaps be possible to single out any particular sentence, and say that this is, strictly speaking, and taken by itself, erroneous, and sufficient to justify a reversal, though there are some that seem to trespass a good deal on the right and duty of each juror to the free exercise ,of his individual judgment. Yet the general impression of these instructions, as we read them, and as it seems to us must have been received by the jury, is, that the jury ought, by compromise, and surrender of individual convictions if necessary, to come to an agreement, and that a failure to do so would be an imputation upon both jury and court. Now while a court may properly call the attention of the jury to many matters which increase the desirability of agreement, such as the time already taken, the improbability of securing additional testimony, the general public benefit in a speedy close of a litigation, and, at least in cases where the matters at stake are of minor importance, the question of expense to the parties and the public, yet no juror should be influenced to a verdict by a fear of personal disgrace, or pe ■cuniary injury. No juror should be induced to agree to a verdict by a fear that a failure to so agree would be regarded by the public as reflecting upon either his intelligence, or his integrity. Personal considerations should never be permitted to influence his conclusions; and the thought of them should never be presented to him as a motive for action. Nor do we think the illustration given by the learned judge a happy •one. A verdict is the expression of the concurrence of individual judgments, rather than the product of mixed thoughts. It is not the theory of jury trials, that the individual conclusions of the jurors should be added up, the sum divided by twelve, and the quotient declared the verdict, but that from the testimony each individul juror should be led to the same conclusion; and this unanimous conclusion of twelve •different minds, is the certainty of fact sought in the law. Especially is this true in criminal trials. Here should no thought of compromise be tolerated. Before the state can fairly demand the conviction and punishment of an alleged •criminal, the twelve jurors should each be led from the testimony to a clear conviction of his guilt; and where six jurors believe a defendant guilty of murder, and six believe him innocent of any offense, it is an outrage for the twelve to bring in a compromise verdict of guilty of manslaughter. We fear that something of this kind occurred in this case, and that the charge above quoted was mainly instrumental in producing this result. At any rate, it seems to us clear, that such would be the tendency of those instructions; and it is not apparent that it did not have that effect. For this error the judgment must be reversed, and the case remanded with instructions to grant a new trial.
All of the present members of this court have had experience as district judges, and know what is their solicitude for the agreement of juries, and their repugnance to see the labors of a trial prove abortive through the failu re of the j ury to agree. We therefore fully appreciate' the considerations which induced these instructions from the learned judge, and fully sympathize with the spirit which controlled him, but are nev ertheless constrained to believe that he passed beyond the line which should limit the counsels and instructions of a court to a jury, and that thereby the material rights of the defendant were prejudiced.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was brought in the court below to recover judgment on a promissory note, and to foreclose a mortgage given to secure the same. A summons in ordinary form in every respect, (unless as plaintiffs in error claim, the seal of the court was not thereto attached,) was issued in the action, and served upon the plaintiffs in error. Judgment was rendered on the note sued on, and a decree of foreclosure and sale allowed. Various orders of sale were issued, two appraisements were had, and the mortgaged premises sold to Orrin B. Taylor for'$1,334.33. The defendants in the court below made no appearance; but they now allege error apparent in the record, and bring the case here for review. As this court has decided “ that any error apparent in the final judgment of a district court may be corrected by suit in error in this court, although no exception was taken thereto by the party complaining, and no appearance by him at the trial and judgment, and no motion made to set aside the judgment,” the case is properly here for the decision of this court. Woolley v. Van Volhenburgh, 16 Kas. 20; Zane v. Zane, 5 Kas. 134; Lender v. Caldwell, 4 Kas. 339; Koehler v. Ball, 2 Kas. 160.
The first error alleged is, that the court below had no'jurisdiction of the parties defendant in said court, because the seal of the court was not attached to the original summons. Of course, if the summons was issued without a seal, it would be void, and a judgment founded thereon a nullity. Const., §1, art. 3; §59, code of civil procedure; §3 of act relating to district courts, Gen. Stat. 304; Lessee of Boal v. King, 6 Ohio, 11. But we are not satisfied from the record that the summons was not duly authenticated with the seal of the court at its date of issuance. It appears from the journal entry of the judgment that the court found “that due personal service of summons was made upon said defendants, as required by law.” This finding and adjudication cannot be ignored. Courts of general jurisdiction are presumed to have had jurisdiction until the contrary clearly appears; and every presumption is in favor of jurisdiction. Haynes v. Cowen, 15 Kas. 637; Butcher v. Bank, 2 Kas. 70. The finding and adjudication are prima facie evidence of the due and legal authentication of the summons, and the presumption thus raised is not overthrown by the fact that in the record presented no copy or mark of a seal is annexed to the summons therein set forth. Nothing is brought to this court but a transcript of the judgment and proceedings had in the cause below; and for aught that appears, the impression of the seal on the summons when affixed thereto may have been so slight as to have disappeared between the date of its issuance, Dec. 23d 1873, and the time the transcript was prepared and certified to, on September 2d 1875. "We have not the same opportunity to ascertain whether the writ was issued with a seal as the district court had. Personal inspection of the summons at the time of the hearing and determination of the matter may have established conclusively the fact that it had the seal of the court attached from which it issued. Upon the finding and adjudication of the court below, and an examination of the record, we must presume that the summons served was properly sealed. The grounds for the allegation of the other alleged errors in the case, seem to us trivial and unimportant.
There seems to have been some irregularity as to the return of the order of sale issued June 22d 1874, and the issuance of the alias order of sale of date of July 13th 1874. But as the sale was not made under either of these orders, no error is manifest in the confirmation of the sale made on January 15th 1875. - If we properly understand the record, the property was advertised for sale August 21st 1874, and again, October 17th 1874; and having been twice advertised and offered for sale, and not sold, said appraisement was properly set aside and a new appraisement ordered, in pursuance of § 468 of the civil code. If it be contended however, that the appraisement of June 23d 1874 was not valid, because it was not filed until November 9th 1874, then the court had a still better reason for the order directing the reappraisement of the property on November 16th 1874.
The land sold consists of four hundred acres — being three hundred and twenty acres in one section, and eighty in another. But as these two pieces of land are contiguous to each other, and the judgment debtors owned the entire interest in the premises, the sale of the same in gross is not void, and the court below committed no error in its rulings. Bell v. Taylor, 14 Kas. 277.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Clarkson against Powers for injuries claimed to have been done by Powers’ cattle grazing on certain lands claimed by Clarkson. The land consisted of 800 acres in Lincoln county, 160 of which belonged to Clarkson, 320 to his wife, and 320 to his sister, Mrs. Bean. Clarkson purchased said land for himself, wife, and sister, from one Eloeneck, who sold it as agent of the Kansas Pacific Railway Company. Said land was at that time, and continued to be until the time of the injuries complained of, wild, unoccupied, uncultivated prairie and timbered land. Clarkson testified on the trial: “I took possession of the land when I purchased it, and retained possession. E rode over the land, and told Hoeneck I would take it. This is what I mean by possession.” And the jury that tried the case found by their verdict that Clarkson did not have the actual possession of the land. The land was purchased by Clarkson about the 24th of July 1871, and the injuries complained of were done from that time until sometime in August (probably about the 28th) of the same year. The injuries were done to the whole of the said 800 acres of land, and the verdict of the jury was for Clarkson for the gross amount of $325 damages. There is no way now of ascertaining how much of said $325 damages was for injuries done on the plaintiff’s land, and how much of it was for injuries done on Mrs. Clarkson’s land, or how much of the same was for injuries done on Mrs. Bean’s land. The record is silent upon the subject. Now we shall assume that the plaintiff Clarkson could recover for the injuries done on his own land. And for the purposes of this case we shall also assume that he could recover for the injuries done on Mrs. Bean’s land, for Clarkson testifies that he had a power of attorney and agreement (which we suppose was in writing) from Mrs. Bean, giving him the use of her land, although Clarkson did not introduce this power of attorney and agreement in evidence. But the»question still remains, could Clarkson recover for the injuries done on Mrs. Clarkson’s land? When this case was formerly here we decided that he could not recover for the injuries done on his wife’s land; (Powers v. Clarkson, 11 Kas. 101, 103.) And we see no good reason for changing our opinion. But the facts of the case are slightly different from what they were when the case was formerly here. In the present case the plaintiff, Clarkson, testifies : “ I had the right to the use of the land of Mrs. Clark-son, for taking charge of it, protecting the timber from fire, and paying taxes on it. I was acting as agent of my wife in purchasing of this land. The particulars of the contract between me and Mrs. Clarkson were, that I was to protect timber from being cut out and burned, and also pay what accruing expenses there were, for the use of the land.” While in the other case Clarkson testified as to his right to use his wife’s land merely as follows: “By what right I claimed the grass on my wife’s land, I don’t know that I can tell you better than you know how a man can manage his wife’s property.” It must be remembered that the injuries for which Clarkson brought this action were done within about a month after Clarkson purchased said land for his wife, and within about a month after he “told Hoeneck that I [he] would take it,” and that there is no evidence that Clarkson ever saw the land after he purchased it until after all the injuries complained of were committed. The only question then, as now presented in this case, is, whether Clarkson could by a parol agreement with his wife, obtain such an interest in her land, or in the grass growing thereon, that he could recover damages in his own name for injuries done to the land, or to the grass growing thereon. We suppose it will be admitted that wild grasses growing upon wild, uncultivated land are in all cases a part of the realty. And if so, it would seem that they could not be transferred from the owner to some other person except by an instrument in writing. (Gen. Stat. 505, §§ 5, 6.) And a person having no interest in a thing cannot recover for its destruction. If Clarkson had had the actual possession of the land, probably he could have recovered for the destruction of the grass. For a person in possession of land is in possession of everything growing thereon. And if he had brought an action in the nature of trespass quare clausum fregit, which is purely an action for injuries to the possession, he could have recovered for the entire injuries to his possession, which in this case would have included the value of the grass. But Clarkson.had no possession of said land. He'did not have the actual possession, as was found by the jury; and he did not have the constructive possession, for the constructive , possession of unoccupied land always follows the title. Therefore, Clark-son had no interest in the grass of any kind or character whatever. Mrs. Clarkson owned the land, and therefore 'owned the grass, and constructively she had the possession of the land and of the grass, and therefore she alone can sue for any injury thereto or destruction' thereof. Her supposed agreement transferring the grass to her husband, being merely by parol, was void for that purpose under the statute of frauds. It could at most operate only as a license to him to. convert the grass to his own use, and to protect him from any action brought by her to recover from him for the grass, ■ or for trespassing upon her land. ■ But in law, until he should convert the grass to his own use, it would belong to his wife.
The judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Mihlman was the owner of a tract of land in Riley county. In December .1866, he deeded the right-of-way through said land to the railway company, plaintiff in error, for its railroad. Prior to 1868 the road was constructed over this right-of-way. It is not claimed that the road was not built on the tract deeded, nor that it was unskillfully built. The road crossed at right angles a ravine which seems to have drained quite an extent of territory, and through which ran after a heavy rain a large volume of surface-water. It does not appear to have been technically a watercourse, or that anything but surface-water ran through it. At or near this ravine the company built two culverts. Leading to and from these culverts, it, according to Mihlman’s testimony, dug two or three ditches, partly on the right-of-way and partly on Mihlman’s land. In 1872 and 1873, from these ditches, or in consequence of the culverts being unable to carry off all the surface-water, the land of Mihlman was flooded, and his crops destroyed; and for this damage he brought this action. It does not appear that the company entered upon Mihlman’s land, or did any work thereon, at any time within five years prior to the commence- merit of this action,. In reference to this, counsel for defendant in error say:
“ The gravaman of the charge contained .in the plaintiff’s petition is, that the defendant company having by unlawfully digging ditches on the plaintiff’s land created and continued to maintain a nuisance thereon, from which the plaintiff in the years 1872 and 1873 suffered the damages complained of.”
And again:
“We do not charge that the company did not build its railroad on its own land, nor that it unskillfully built its road; and since we make no charge of that kind, nor make any claim predicated upon such a state of facts, it is irrelevant to state in the answer, conversely, that the road was built skillfully and on the company’s own land. Tf the company had confined its operations to its own land, no harm would have resulted, and it would not now be called upon to respond in damages for the continuance of a nuisance to the land of Mihlman.”
And still again:
“The question is, rather, had the company the right to enter and occupy the lands of Mihlman for the purpose of digging and maintaining ditches to drain the waters from their railroad at that point, without Mihlman’s consent? And is it not answerable for the damages occasioned by such acts?”
It is evident from these quotations that the operations on Mihlman’s land, and not those on the right-of-way, are considered the basis of the cause of action. The first matter to which our attention is called, and which we shall notice, is, that of the statute of limitations. Actions of trespass upon real property are barred in two years. (Gen. Stat. 633, §18, clause 3.) If the cause of action dates from the time the defendant entered upon the plaintiff’s land and dug the ditches, and was simply for the trespass, it was barred; if from the time the injury to Mihlman’s crops occurred, it would probably not be. So far as the company had acted, its action was finished when it had dug the ditches. (We are now considering the question with reference solely to what it did off its own land, and upon that of Mihlman.) It had invaded Mihlman’s rights; it had committed a trespass on his lands. It was then responsible in an action for the injury it had done by that trespass. Such action might have been brought immediately, and in such action could have been recovered all damages done to Mihlman by the trespass, and which might have included the cost of restoring the ground to the condition it was before the digging of the ditches. What new act has the company since done? What wrong has it done to Mihlman’s property? Nothing. Its hands have been still.
It has made no new invasion of his rights. Suppose an action had been brought, and damages recovered, f°r P’esPass immediately after it occurred: what new act of the company could now be alleged as the basis of recovery? True, the trespass has now resulted in greater loss than was then foreseen or estimated in assessment of damages; but an increase in the damages resulting, adds no new cause of action. A. commits an assault and battery on B. Action is brought, and damages recovered. That ends the matter. And though B.’s sufferings are prolonged, and his injuries prove to be permanent, and of a far more serious character than was thought at the time of the recovery of damages, there can be no new action, and no further recovery. Fetter v. Beale, 1 Salk. 11. “We think this action is for an injury to a right; and consequently there was a complete cause of action when the wrong was done, and not a new cause of action when damage was sustained by reason of the original wrong.”-Baron Parke, in Nicklin v. Williams, 10 Ex. 259. See also, Northrup v. Hill, 57 N. Y. 351. So, for the trespass, the cause of action is complete at the time, and an increase in the resulting damages gives no new cause of action. There are cases, it is true, in which the cause of action is based upon the actual occurrence of damage, and dates therefrom, and not upon or from the prior act which resulted in the damage; but these are all cases in which the prior act is itself lawful, and furnishes no cause of action, or where it is considered as. a continuing act; as, where one excavates on his own land, and thereby withdraws the lateral support to his neighbor’s soil and buildings, the act is itself lawful, and only becomes the basis of a cause of action for damages when it actually results in injury; and the cause of action dates, not from the time of the excavation, but from the time of the subsidence. Bonomi v. Backhouse, 96 En. Com. L. 653. Here no trespass is committed. The party is simply using his own property, and using it lawfully; and it is only when he conflicts with the rule, sic utere iuo, ut alienum non Icedas, that his neighbor has any cause of complaint. If after the excavation he builds on his own ground a wall which continues the support of his neighbor’s soil and buildings, that neighbor has no action. The excavation therefore is not the foundation of the action, but the damage consequential upon the excavation; and no cause of action exists until the damage occurs. In reference to this class of cases, Baron Parke says, in Nicklin v. Williams, supra, “But on examining those cases they do not appear to be for injuries to rights, which this is, but solely for consequential damages where the original act itself was no wrong, and only became so by reason of those damages, and therefore they do pot apply.” It is true, that in this case the court of Exchequer considered the excavation on one’s own land, -whereby the lateral support of the neighbor’s soil and buildings was taken away, a direct invasion of that neighbor’s rights, and therefore itself the basis of the cause of action, as did also the Queen’s Bench in the case just cited of Bonomi v. Backhouse, and in this respect both courts were overruled by the Exchequer Chamber. But the principle enunciated was the same all the way through, and the only difference was in the application. In delivering the opinion of the Ex. Chamber, Mr. Justice Willes says: “ There is no doubt that for an injury to a right, an action lies; but the question is, what is the plaintiff’s right? Is it that his land should remain in its natural state, unaffected by any act done in the neighboring land, or is it that nothing should be done in the neighboring land from which a jury1 would find that damage might possibly accrue?” See also the case of Roberts v. Reed, 16 East, 215, in which it appeared that the surveyors of a highway, by excavations in it, took away the support of the plaintiff’s wall, and it was held that no action lay until damage resulted to the wall. In Whitehouse v. Fellowes, 100 Eng. C. L. (or 10 Common Bench) n.s. 765, the trustees of a turnpiké had converted an open ditch at the side of their road into a covered drain. In heavy storms this drain was inadequate to the carrying off of the water, and in consequence the plaintiff’s lands were overflowed; and it was held that the cause of action dated from the damage. There was here no trespass, no invasion upon the plaintiff’s lands, or his rights, until the actual overflow and injury. Other cases might be cited, but enough have been to show the principle which underlies them, namely, that where the original act itself is no invasion of the plaintiff’s rights, then there is no cause of action until such act has caused damage, and the right of action dates from that time. On the other hand, as we have already stated, where the original act is unlawful, and an invasion of the plaintiff’s rights, the cause of action dates from that act, and a new cause does not arise from new damage resulting therefrom. The case of Lord Oakley v. The Kensington Canal Co., 5 Barn. & Ad. 138, is strongly in point. The canal company entered upon plaintiff’s land and dug it away for the purpose of sloping the banks of their canal, in consequence of which the land was overflowed at every high tide. It was held, that the injury was complete when the trespass was committed, and that no new cause of action arose with every overflow. So, in the case of Clegg v. Dearden, 64 Eng. C. L. (or 12 Ad. & Ellis) n.s. 575, the defendant made an excavation into the mine of plaintiff, through which water flowed into the mine. It was held that the cause of action was complete at the time the excavation was made. Lord Denman in giving the opinion of the court says: “ The gist of the action, as stated in the declaration, is the keeping open and unfilled up an aperture and excavation made by the defendant into the plaintiff’s mine. By the custom, the defendant was entitled to excavate up to the boundary of his mine, without having any barrier, and the cause of action therefore is, the not filling up the excavation made by him on plaintiff’s side of the boundary and within their mine. It is not, as in the case of Holmes v. Wilson, 10 A. & E. 503, a continuing of something wrongfully placed by the defendant upon the premises of the plaintiff ; nor is it a continuing of something placed upon the land of a third person to the nuisance of the plaintiff, as in the case of Thompson v. Gibson, 7 M. & W. 456. There is a legal obligation to discontinue a trespass, or remove a nuisance; but no such obligation .upon a trespasser to replace what he has pulled down or destroyed upon the land of another, though he is liable in an action of trespass to compensate in damages for the loss sustained. The defendant having made an excavation arid aperture in the plaintiff’s land, was liable to an action of trespass; but no cause of action arises from his omitting to reenter the plaintiff’s land and fill up the excavation. Such an omission is neither a continuation of a trespass, nor of a nuisance; nor is it a breach of any legal duty.” Language could not be more apt than this for the case at bar. Counsel here would make the gist of the action the continuance of the ditch, as there the continuance of the excavation; but the fact is, the wrong was done when the ditch was dug, and an omission to reenter and fill up the ditch was a breach of no legal duty. There are cases in which the original act is considered as a continuing act, and daily giving rise to a new cause of action. Where one creates a nuisance, and permits it to remain, so long as it remains it is treated as a continuing wrong, and giving rise, over and over again, to causes of action. But the principle upon which one is charged as a continuing wrongdoer is, that he has a legal right, and is under a legal duty, to terminate the cause of the injury. As to anything upon his own land, a party has a right to control and remove it, and if it is so much of an injury to his neighbor’s rights as to amount to a nuisance, is under a legal obligation to do so; but as to that upon his neighbor’s land, he has no such right, and is under no such duty. Hence the distinction between nuisance and trespass. As is said by Angelí, (Watercourses, p. 556,) “The distinction between nuisance and trespass is, that nuisance is only a consequence or result of what is not directly or immediately injurious, but its effect is injurious, while trespass is a direct and immediate invasion of property.” So an eminent English text-writer defines a private nuisance as “Anything done to the hurt or annoyance of the lands, tenements and hereditaments of another, and not amounting to a trespass.” 3 Stephen’s Comm. p. 39. And Hilliard, (1 Torts, 550,) “One of the characteristics of nuisance, as distinguished from trespass or conversion is, that it consists in a use of one’s own property, which involves injury to the property or other rights or interests of his neighbor.” So, if a party who has created a nuisance upon his own land, parts with that land he ceases to be responsible for the nuisance, except perhaps in cases where he continues to receive some benefit therefrom. Hanse v. Cowing, 1 Lans. 288. It is, true, the books speak of such a thing as a continuing trespass. In 1 Add. on Torts, 332, it is said, that “If a man throws a heap of stones, or builds a wall, or plants posts or rails on his neighbor’s land, and there leaves them, an action will lie against him for the trespass, and the right to sue will continue from day to day until the incumbrance is removed.” And in the case of Holmes v. Wilson, 37 Eng. C. L. 273, (or 10 A. & E. 503,) it appeared that the trustees of a turnpike to support it built buttresses on the plaintiff’s land. He brought an action, and recovered for the trespass. He then notified them to remove the buttresses. Failing to do so, he sued again, and it was held that the action would lie. It seems to us very doubtful whether this ruling can be sustained upon principle. As suggested by the reporter, suppose plaintiff had recovered as a part of his damages in the first action, as he properly might, the expense of removing these buttresses, and this fact had appeared in the second suit: could the action have been maintained? And what difference, we ask, does it make, whether he did actually recover for such expense? It was a proper matter of damages; it was a part of the amount necessary to place the land as it was before the trespass; he was entitled to recover it, if he proved it; and if he failed to prove it, or if after proving it the court refused to allow it, neither the failure nor the error laid the foundation for a second action.
-Amd what right does the first trespass give the treSpasger t0 reenter and commit a second trespass? True, in this ease, the plaintiff had requested the trustees to remove the buttresses, and that might be considered a license to enter, and a waiver of the trespass. But where there is no such request, as in the case before us, how is it? If the railway company had entered to fill up the ditches, could not Mihlman have'maintained his action for that as a trespass? Was he not at liberty to appropriate the benefit of the company’s work in digging the ditches, and prevent any person from interfering therewith, and recover damages from any one that did interfere ? It seems so to us, unquestionably. And it seems that the rule would be the same in case of such a trespass as suggested in Addison, of the building of a wall, or the heaping up of á pile of stones. Hence we doubt the doctrine as stated by him, and as decided in Holmes v. Wilson. At any rate, we do not think it can be extended beyond the character of trespasses there named, that is, those in which something is carried to and placed upon the land. Take this illustration: A. trespasses upon B.’s laná, and digs a well. And that is a trespass very like that of digging a ditch. A. never enters upon the land again. The well is never filled up, but is permitted to remain. Twenty years thereafter, in a wet season, the water from the well soaks through the soil into a cellar, floods it, and causes damage. Is A. responsible for the damage? or does the statute bar an action? Was the digging of the well a single act, and a completed wrong? or does its existence make' A. a continuous trespasser, and liable' for every recurring damage? But without pursuing the discussion further, we hold that in digging the ditches on Mihlinan’s land the company was a trespasser; that the cause of action for that wrong was then complete, and then commenced to run; that the failure to enter and fill up the ditches, did not render the company guilty of continuing a nuisance, nor make it in any legal sense a continuous wrongdoer, and that therefore, as to any injury resulting therefrom, as shown in the record, the statute of limitations was a bar.
Another question presented is, as to the measure of damages. Here the company dug some ditches four or five years before the injuries now complained of. The ditches were all dug in one day, were of no great length, and could have been filled without much expense. Instead of immediately complaining of the trespass, filling up the ditches, and recovering his damages therefor, Mihlman permits them to remain for years, and then recovers $1,000 for damages just done to his crops. And if the theoiy of the learned counsel for defendant in error were correct, he could go on suing, year by year, for every injury his crops received in consequence of these ditches, whereas the expenditure of a few dollars in filling the ditches would have averted all loss. Will the law tolerate this? We think not. The proposition is sound, that while a wr0]Qg¿oer should compensate for all the injury naturally and fairly resulting from his wrong, yet the party upon whom the wrong is done should take reasonable care of his property, and make reasonable effort to prevent any extension of the injury. If a party can with reasonable effort prevent an injury from spreading, he ought to do it. It is no more than simple justice to the party who has caused the injury, especially if that party has acted without malice, and without a thought of causing injury. ■ In Loher v. Damon, 17 Pick. 284, defendant had wrongfully pulléd down a fence in November, which plaintiff did not repair till the following May; cattle got in and ate the grass, for the loss of which he claimed. The court below ruled that plaintiff could only recover enough to remunerate him for replacing the fences. The learned Chief Justice Shaw said: “The direction respecting damages was right. In assessing damages, the direct and immediate consequences of the injurious act are to be regarded, and not remote, speculative and contingent consequences, which the party injured might easily have avoided by his own act. Suppose a man should enter his neighbor’s field unlawfully, and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees the gate open, and passes it frequently, and willfully and obstinately, or through gross negligence, leaves it open all summer, and cattle get in, it is his own folly. So, if one throw a stone and break a window, the cost of repairing the window is the ordinary measure of damage. But if the owner suffers the window to remain without repairing a great length of time after notice of the fact, and his furniture or pictures, or other valuable articles, sustain damage, or the rain beats in and rots the window, this damage would be too remote. "We think the jury were rightly instructed, that as the trespass consisted in removing a few rods of fence, the proper measure of damage was the cost of repairing it, and not the loss of a subsequent year’s crop, arising from the want of such fence.” In Chase v. N. Y. Central Rld. Co., 24 Barb. 273, in an action brought to recover damages for injuries done to plaintiff’s house and grounds by water, alleged to have been turned onto the plaintiff’s land by defendant in constructing a railroad, it was held that the owner of the house under such circumstances is bound to use reasonable care, skill and diligence, adapted to the occasion,-to save his house from being injured by the. water, notwithstanding it came upon his premises by the fault or negligence of the defendant, or suffer the loss himself. In Lawson v. Price, 2 Law & Eq. Rep. 426, the court of appeals of' Maryland say, that, “After a wrong has been committed, it is the duty of the injured party to make reasonable efforts to prevent its increase.” Now in this case, the jury not only heard the testimony, but made a personal examination of the premises, and the question ought to have been submitted to them whether Mihlman could not, with reasonable effort, and small expense, have filled up the ditches, repaired the wrong done by the company, and prevented any destruction of his crops, or depreciation of the value of his real estate; and they, should have been instructed that if this were so, the measure of damages would not be the value of the crops destroyed, but the costs of filling the ditches, and placing the land in the condition it was before the trespass, together with the value of the direct injury done by the trespass.
The questions we have discussed are in the case. It is fair to state however, that they were not both presented to the attention of the court below; and as a general Puiej wl!ere the question is not presented in that court, it will not be noticed in this court. We notice a growing disposition on the part of some counsel to regard the trial courts as simply instrumentalities for the collection of evidence, and upon the evidence so collected to raise questions of law for the first time in this court. Such a practice is unjust to both the trial court, and this court. Every question that is in a case should be presented to that court, and its ruling had directly thereon. The reasons for this have been often given, and we need not repeat them here. We desire simply to call attention to the matter. One at least of the questions we have considered was called to the attention of the district court; and as, for its error in respect to that, the judgment had to be reversed, we deemed it right to notice the other.
The judgment will be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Price, J.:
This appeal arises out of a dispute between the parties to a written lease of a hotel property in Atchison.
In June, 1947, defendant-appellee, as lessor — and hereafter referred to as defendant — leased the hotel in question to plaintiff-appellant, as lessee — and hereafter referred to as plaintiff.
The written lease, which was quite lengthy, contained a number of provisions as to the rights and liabilities of the parties with respect to the upkeep and maintenance of the property, and also contained a provision concerning the rights and liabilities of the parties in the event the property should be damaged by fire or by providential means so as to become wholly or partially untenantable.
In July, 1958, a “flash flood” occurred in Atchison and as a result the basement and first floor lobby of the hotel were flooded, the lobby to a depth of approximately two feet. The water receded from the lobby in about two hours and the basement was later pumped and drained dry. As a result of all this certain items of personal property were damaged.
Plaintiff, as lessee, brought this action against defendant-lessor to recover expenditures made by plaintiff in the “clean-up” operations. Defendant filed a cross-petition for expenses incurred by it in repairing a corner of the hotel building. Upon issues thus joined the action was, by consent of both parties, referred to Eldon Sloan, a member of the Topeka bar, as referee. Considerable evidence was introduced and at the conclusion thereof the referee made extensive findings of fact and conclusions of law touching all phases of the case. The referee found and concluded that plaintiff had violated the terms of the lease in a number of specified particulars, and that it was not entitled to recover under its petition. The referee further found and concluded that under its cross-petition defendant was entitled to recover the sum of $3,000 for expenditures and repairs on the property made by it, and which, under the terms of the written lease, was the obligation of plaintiff.
The trial court approved and adopted the findings and conclusions of the referee and rendered judgment accordingly.
Plaintiff’s motion for a new trial was overruled and it has appealed.
Three questions are raised — each of which has to do with the construction of certain provisions of the lease relating to the rights and liabilities of the parties as to the repair and maintenance of the building and as to matters concerning items of personal property used in the hotel.
As heretofore stated, this case arises out of a dispute between the landlord and tenant in a hotel lease. This court has considered the provisions of the lease and has read and considered the evidence and all of the findings and conclusions of the referee, which, as stated, were approved and adopted by the trial court. No new or novel questions are presented, and no useful purpose would be served by detailing the provisions of the lease, the evidence, or the findings and conclusions. The evidence fully supports the findings and they, in turn, support the conclusions and the judgment ultimately rendered. As applied to the facts, the provisions of the lease as to the rights and liabilities of the parties were properly construed. Plaintiff has in no way made it appear that the judgment is erroneous and, such being the case, it is affirmed.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is a continuation of the controversy involved in Carr v. Diamond, 192 Kan. 336, 388 P. 2d 589. Defendant, R. H. Macy & Co., Inc., “Innes,” appeals from a judgment dismissing the action with prejudice while its appeal from a judgment overruling its demurrer to the petition and other procedural matters were pending.
The plaintiff appealed to the district court from a judgment of the court of common pleas of Sedgwick County, Kansas. After perfecting his appeal, plaintiff filed a motion to have R. H. Macy & Co., Inc., “Innes” made an additional party defendant. The motion was allowed and service of summons was duly made. Macy appeared specially and moved to quash the summons for the reason that the court had no jurisdiction of it as an added defendant. The motion was overruled.
Following other procedural steps, which are not material to the disposition of the controversy, plaintiff filed an amended bill of particulars. Macy filed a demurrer which was overruled.
The defendant, Macy, appealed, specifying as error the overruling of the demurrer, the order making Macy an additional party defendant, and the refusal to quash the service of summons. The appeal was taken on December 15,1961.
Additional facts material to the determination of the controversy may be found in the motion for approval of the journal entry of dismissal and the journal entry. The former reads:
“Comes Now, the plaintiff, Terrance Carr, doing business as Carr Air Conditioning, and moves this Court for an order approving the Journal Entry of Dismissal heretofore filed herein and in support of his application respectfully submits:
“That this plaintiff has accepted from defendant Grace Diamond partial payment of the amount prayed in plaintiff’s Bill of Particulars (Petition herein), said partial payment being made by defendant Diamond and accepted by plaintiff in full settlement and compromise of all his claims against all defendants herein. That said plaintiff desired to and did therefore dismiss his action herein with prejudice with costs assessed to this plaintiff.
“That the Journal Entry of Dismissal filed herein was not approved by counsel for defendant, R. H. Macy and Co., Inc., “Innes,” which said defendant has appealed from certain preliminary orders rendered herein and plaintiff desires said action be dismissed with prejudice to said defendant.
“Wherefore, plaintiff prays for an order approving the dismissal with prejudice of plaintiff s action herein.”
The journal entry concludes:
“It Is Therefore, Considered, Ordered, Adjudged and Decreed that the Journal Entry of Dismissal with prejudice, signed by the Honorable B. Mack Bryant, be approved as of this 28th day of August, 1962, a regular day in the April, 1962, term of Court.
“It Is Further Considered, Ordered, Adjudged and Decreed that the defendant’s R. H. Macy & Co., Inc., “Innes,” appeal pending in the Supreme Court of Kansas, since the 15th day of December, 1961, and the rights thereunder cannot be cut off by the plaintiff by dismissing this case with prejudice in the District Court.”
The defendant, Macy, has appealed from the judgment dismissing the action.
Among other contentions, the defendant, Macy, specifies as error on the part of the trial court the approval of the journal entry of dismissal with prejudice after an appeal had been perfected on December 15, 1961, and the abstract of record filed, and in assuming jurisdiction of the case after an appeal to this court had been perfected. The appellant states:
“The appellant, Macy, asserts most emphatically, that the District Court does not have the jurisdiction or authority to dismiss, said cause of action, under the circumstances stated in the question proposed, which are the facts of this case, and in support thereof respectfully calls the court’s attention to the following authority:
“5 C. J. S., page 395: ‘After the jurisdiction of the appellate court over an appeal has attached the trial court is without power to dismiss an appeal allowed by it, and therefore the motion should be addressed to the appellate court. It has been stated that when notice of appeal has been given, the appellate court obtains jurisdiction over the cause and the cause is transferred to that court; in such a case a motion to dismiss may be heard only in the appellate court and such a motion filed in the lower court is a nullity.’ (Emphasis supplied.)”
The appellant misapplies a valid statement of the law. The statement deals with the dismissal of the appeal, not the dismissal of the case in the lower court. In some jurisdictions, under certain circumstances, the trial court has a voice in whether or not an appeal will be allowed. The statement announces the rule that once the appeal is allowed and perfected under such circumstances, a motion to dismiss the appeal may be heard only in the appellate court. Such a situation is not present in this appeal.
The appellant calls our attention to the case of Pugsley v. Railway Co., 69 Kan. 599, 600, 77 Pac. 579, in which this court stated:
“If it could be said that the demurrer had been passed upon and sustained before the plaintiff made his application to dismiss, it would be clear, under the former decisions of this court, that the plaintiff could not, as matter of right, dismiss without prejudice. . . .”
In the above case the appeal was from an order refusing to dismiss without prejudice after a demurrer to the evidence had been taken under consideration. A much different situation would have existed had the plaintiff moved to dismiss with prejudice and thus ended the controversy.
An appeal to this court does not of itself operate as a stay of further proceedings in the trial court. The filing of a supersedeas bond under the provisions of G. S. 1949, 60-3323, will stay the execution of a final judgment but it does not stay other proceedings in the trial court. The trial court may proceed to set aside or correct its judgment or grant a new trial. (Barstow v. Elmore, 177 Kan. 30, 276 P. 2d 360.)
In Heizer v. Pawsey, 47 Kan. 33, 27 Pac. 125, it was stated:
“. . . This court has decided that the institution of a proceeding in error in the supreme court does not, of itself, operate to suspend further proceedings in the case in the court below; nor will the giving of the undertaking provided for in §§ 551 and 552 [now G. S. 1949, 60-3322 and 60-3323] of the code suspend proceedings in the district court further than to stay execution of the judgment or final order sought to be reviewed. (C. B. U. P. Rld. Co. v. Andrews, 34 Kas. 563.) In the opinion the law is stated: ‘In none of the provisions of the code, however, is the undertaking made to stay any of the proceedings beyond the issuance of an execution to enforce the judgment or final order of the court below.’ . . .” (p. 35.)
This court disposed of the question raised by the present appeal in Owen v. Stark, 175 Kan. 800, 267 P. 2d 948, where it was held in paragraphs 2 and 3 of the syllabus as follows:
“When defendant’s demurrer to a petition is overruled and he appeals such appeal of itself does not stop or delay further proceedings in the trial court.
“In the situation outlined in paragraph 2 above the trial court in the exercise of its judicial discretion may stay further proceedings in the trial court pending the appeal on such terms as the court deems proper, and it may for good cause refuse the stay and permit the case to proceed as though the appeal had not been taken.”
We cannot find, and appellant has not suggested, any possibility of it being prejudiced by the order of dismissal. The order of dismissal with prejudice freed the appellant of any possible liability to the appellee now and for all time as to the issue in controversy. The only possible thing that could be accomplished would be to furnish counsel with a forum from which to debate what may be an interesting question. Appellate courts do not entertain appeals for such purpose. Reviewing courts do not decide questions which no longer exist merely to make a precedent.
It was held in Christ v. Fischer, 118 Kan. 586, 235 Pac. 841:
“An appeal may be dismissed where all matters between the parties interested in the subject matter of the litigation have been adjusted to the satisfaction of those parties and there is nothing left except to determine certain principles of law which, when established, can have no effect on the rights of those beneficially interested.”
The judgment of the trial court dismissing the action with prejudice as to all defendants disposed of the entire controversy. The appeal brought nothing to this court but moot issues. (Carr v. Diamond, 192 Kan. 336, 388 P. 2d 589.
The appeal is dismissed.
APPROVED BY THE COURT.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment sustaining a demurrer to the plaintiff’s amended petition.
The facts, which must be gleaned from the pleadings, can be briefly stated.
Plaintiff is a licensed real estate broker doing business under the name of The Glenn Agency. Defendant gave plaintiff a check in the amount of One Thousand Dollars as down payment on a real estate purchase. Plaintiff endorsed the check and presented it for payment. The bank on which it was drawn refused payment because of insufficient funds. Defendant defaulted on the real estate purchase agreement and plaintiff brought this action to recover on the check.
The petition contained the necessary formal allegations, attached a copy of the check, which was made a part thereof, and prayed for judgment. The check reads:
“No__
44-16
1011
Topeka, Kansas, ll/3rd, 1961
Pay to the
Order of_Glenn Agency Realtors_$1,000.00
_One Thousand and No/100_Dollars
The Merchants National Bank
Topeka, Kansas
Down payment on Hitz & Harris
13-Acres
Wm. Lukenbill
Fleet Service Inc.”
Instead of answering defendant filed a motion to make the petition more definite and certain in the following respects:
“1. By requiring plaintiff to set forth the consideration wherein plaintiff claims to be the owner and holder of said alleged $1,000.00 check.
“2. By requiring plaintiff to set forth the facts and circumstances surrounding the alleged execution of said $1,000.00 check by this defendant to plaintiff.
“3. By requiring plaintiff to set forth whether plaintiff is the owner and holder of said alleged check, for a valuable consideration, or whether or not plaintiff was acting solely as an escrow agent for other parties in the execution of said alleged check to this plaintiff.”
Following a hearing the district court sustained defendant’s motion in its entirety. Thereupon plaintiff filed a rather extensive amended petition in compliance with the order. Defendant then filed a demurrer to the amended petition alleging:
“1. That the plaintiff has no legal capacity to sue.
“2. That the petition does not state facts sufficient to constitute a cause of action.
“3. That plaintiff is not the proper party to bring this action.”
The district court sustained the foregoing demurrer on all three grounds therein set forth. Plaintiff then perfected the instant appeal and brings the case to this court under two specification of error.
Appellant’s first claim of error is that:
“The Court erred in sustaining defendant’s [appellee’s] Motion to Make More Definite and Certain as to consideration of the check, circumstances surrounding execution of the check and by requiring appellant to state whether he is the owner and holder of the check for a valuable consideration and whether or not plaintiff [appellant] was acting solely as an escrow agent for other parties.”
It appears that appellee by his motion to make definite and certain was seeking to require appellant to plead appellee’s defense, hence the motion should not have been sustained. However, due to the conclusion which we presently reach, the appellant’s rights have not been undully prejudiced and it is neither necessary nor required that we labor the point.
Appellant’s second and final claim of error is that:
“The Court erred in sustaining appellee’s Demurrer on the ground of no legal capacity to sue, failure to state a cause of action and that appellant was not a proper party to bring the action."
Resort to the Negotiable Instruments Law, as well as our decisions, compels a conclusion that appellant’s final claim of error has merit and must be sustained.
A check is a bill of exchange and the provisions of the above mentioned law applicable to a bill of exchange, payable on demand, apply to checks (G. S. 1949, 52-1702).
For applicable decisions see Kansas Bankers Surety Co. v. Ford County State Bank, 184 Kan. 529, 338 P. 2d 309; Chamberlain Co. v. Bank, 98 Kan. 611, 160 Pac. 1138.
G. S. 1949, 52-301, in part, reads: “Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, . . .”
See Home State Bank v. DeWitt, 121 Kan. 29, 245 Pac. 1036, where it is said:
. . . The presumption is that there was a valid consideration for the notes sued upon (R. S. 52-301 [now G. S. 1949, 52-301]) and it was incumbent on the defendant to produce evidence showing the contrary. . . .” (p. 31.)
A party suing on a check need not allege the consideration for the instrument. If lack of consideration is available as a defense it must be established by defendant (G. S. 1949, 52-305).
See Balph v. Broadhurst, 121 Kan. 82, 245 Pac. 745, which holds:
“In an action upon a check by the payee against the maker, the defense was failure, or partial failure, of consideration. Held, the burden is on defendant to establish such defense.” (Syl. f 1.)
And see Campbell v. Wilcoxen, 134 Kan. 500, 7 P. 2d 46, where it is held:
“In an action upon a check or other negotiable instrument where the defense is want of consideration, it is not necessary for the plaintiff to introduce evidence showing a valid consideration therefor to avoid the sustaining of a demurrer to his evidence, for the reason that under the negotiable-instruments act (R. S. 52-301 [now G. S. 1949, 52-301]) a consideration is presumed and the absence or failure of consideration is matter of defense (R. S. 52-305 [now G. S. 1949, 52-305]).” (Syl. fl.)
The holder of a negotiable instrument may sue thereon in his own name (G. S. 1949, 52-501) and the maker admits existence of the payee and his capacity to endorse the instrument (G. S. 1949, 52-602).
The payee or endorsee in possession of a negotiable instrument holds the legal title thereto, and it is the legal title to the paper, not the beneficial interest therein, that controls as to proper parties plaintiff in a suit for the collection thereof. See e. g., Howell v. Flora, 155 Kan. 640, 127 P. 2d 721.
For other decisions dealing with the subject see Howell, Trustee v. Wilson, 192 Kan. 223, 387, P. 2d 193; Greene v. McAuley, 70 Kan. 601, 79 Pac. 133; and Manley v. Park, 68 Kan. 400, 75 Pac. 557.
The appellee relies on Sievert v. Wood, 133 Kan. 540, 300 Pac. 1090, in support of its contention that the appellant was an agent for the seller of the real estate in question and could not sue on the check. In the Sievert case, the agent was attempting to sue on a contract for the sale of a threshing machine. The contract was not a negotiable instrument and the case has no application to this controversy.
In view of what has been heretofore stated and held we have no difficulty in concluding the trial court erred in sustaining the demurrer to appellant’s amended petition. Therefore its judgment must be reversed with instructions to overrule such demurrer — and it is so ordered.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal by the defendants below in an action for recovery of a real estate commission is (1) from the trial court’s orders overruling defendants’ motion for new trial and motion for judgment for defendants (2) from the judgment in favor of plaintiff and against defendants in the sum of $690.00 and (3) from the trial court’s findings set out in its memorandum opinion.
On July 7, 1960, plaintiff and defendants entered into a written sale contract whereby plaintiff was granted the exclusive right to sell defendants’ property for $13,500. The contract was to expire on October 7, 1960. Plaintiff advertised the property, placed “For Sale” signs thereon and attempted to make the sale. Velma Rober ton saw the sign prior to October 7, 1960, and began negotiations with defendants but refused to negotiate through any real estate agent. Plaintiff claimed that through his efforts a purchaser ready, willing, and able to buy on terms agreeable to defendants was procured and did buy defendants’ property subsequent to October 7, 1960, which entitled plaintiff to a $750.00 commission.
Defendants admitted the execution of the sales contract; that plaintiff had advertised the property for sale, and had placed a “For Sale” sign thereon; that Velma Roberton had seen the sign prior to October 7, 1960, and had purchased the property subsequent to October 7, 1960; and finally, that defendants had refused to pay plaintiff’s commission.
Defendants further alleged that Velma Roberton first learned of the property through her Manor Bakery salesman. She was told by defendants of plaintiff’s exclusive listing on the real estate and that she should see him but she refused to buy through a realtor. On October 10, 1960, defendants went to Velma Roberton’s residence and received an offer which they accepted on October 12, 1960. They executed a contract for the sale of the property at a price approximately $2,000 less than the asking price. Plaintiff did not procure Velma Roberton as a purchaser. She had specifically stated she would not purchase through an agent or while there was an exclusive listing on the property. Defendants had never agreed to accept less than the asking price. Prior to October 7, 1960, defendants had not received an offer for the amount of the asking price, or on any other price agreeable to them. Velma Roberton had never negotiated with plaintiff except that she had seen the “For Sale” sign in the yard. Upon the expiration of the exclusive listing contract, plaintiff furnished defendants with a list of the names of prospective purchasers with whom he had had negotiations concerning the property but the name of Velma Roberton did not appear thereon. This list was never filed with the secretary of the Kansas City Real Estate Board.
The trial court’s memorandum opinion reflected the contract provided that defendants would be liable to plaintiff for a commission if the property was sold by anyone during the three months’ period the listing was in effect, or if it was sold within six months following the termination of the listing in the event plaintiff had had negotiations and had furnished defendants with the purchaser’s name.
The trial court was satisfied the property was sold during the three months’ period of the contract although the sale was not consummated until a subsequent time. Defendants had acted in good faith thinking they had the right to wait until the expiration of three months before consummating the sale in order to avoid paying the commission, but this, in effect, was a subterfuge to avoid such payment. It appeared obvious the purchaser and defendants were ready, willing, and able to negotiate except that they wanted to avoid paying the commission. Defendants were bound by the terms of their contract.
On July 9, 1962, the trial court entered judgment generally in favor of plaintiff for six percent of the selling price of $11,500, or $690.00, and costs. Defendants filed motions for new trial and for judgment for defendants, which motions were overruled on August 22,1962. Hence this appeal.
Defendants listed their home with plaintiff under an exclusive sale contract dated July 7, 1960, providing in pertinent part as follows:
“I [we] . . . grant to you [Hanson], irrevocably, the exclusive right to sell the same for a period of time commencing with the date hereof and continuing to and including the 7th day of Oct, 1960, for the price and on terms as follows: Price $13,500, Terms $11,000.00 cash and $53.00 monthly including interest at 6%, or upon such other price or terms as I may agree to accept. If sale of said property is made by anyone, including myself, before the expiration of the aforesaid period of time, or if before the expiration of the aforesaid period of time you shall procure a bonafide offer from a purchaser who is ready, able and willing to purchase said property at the price and upon the terms above specifically stated, then I agree to pay you a sum of money equal to 6% of the sale price up to the first $100,000.00 of such sale price plus 3% of the amount of such sale price in excess of $100,000.00, such sum of money in no event to be less than the sum of $50.00. If this property be sold within six months after the expiration of this contract to any person with whom you have had negotiations while this contract is in force, I agree to pay you the commission as above set out, provided you have furnished me with a list of names of the persons with whom you have had negotiations and have filed a copy of such list with the Secretary of the Kansas City, Kansas, Real Estate Board within 10 days from expiration of this contract. In no event am I to be liable for more than one commission if a sale is made by any member of said Real Estate Board. I agree to notify agents with whom I have heretofore listed the property that I have given you the exclusive listing. . . . Permission is also granted you to place a sale sign on said property. I agree to aid you or anyone representing you in every way possible to foster a sale while this contract is in force.” (Our emphasis.)
The stipulations of the parties included, among others, that the exclusive sale contract entered into would expire October 7, 1960. If anyone sold the property during the term of the contract, plaintiff was to receive a commission. That plaintiff had advertised the property for sale, placed signs in the yard, and contacted various people.
The trial court in its memorandum opinion did not pinpoint the evidence supporting its finding that the property was sold during the three months’ period nor did it pinpoint the witnesses it believed and disbelieved although it found the sale was not consummated until after the expiration date of the contract.
The record discloses that plaintiff’s placing of the “For Sale” sign in the front yard of defendants’ property was the first indication to Velma Roberton that their property was for sale and her negotiations were started with defendants while the sign was still in the yard and before October 7, 1960. Even though Velma Roberton was informed of the exclusive listing, she refused to deal through a real estate broker. She discussed the purchase of defendants’ property with them. This was brought out not only in the interrogation of Velma Roberton but also in the testimony of defendant, Fred M.. Schletzbaum. Both Charles and Georgia Hopewell testified defendants told them they had a cash buyer. Defendants had not disclosed any name to them but stated she raised dogs. Plaintiff had submitted to defendants a written contract of purchase signed by the Hopewells, but the Hopewells were unable to obtain enough cash to meet the terms required by the contract between plaintiff and the defendants. The Hopewells both testified the conversation between them and the defendants in regard to defendants having negotiated a cash deal took place before the exclusive sale contract with plaintiff had expired so far as they knew because his sign was still in defendants’ yard. Defendants had not disclosed the name of Velma Roberton to plaintiff even though they were requested so to do and as soon as the expiration date of the exclusive sale contract was reached, they removed plaintiff’s sign from the yard and placed then sign thereon. Immediately thereafter they began active negotiations with Velma Roberton to sell direct to her and entered into a contract with her on October 11, 1960.
On appeal the two questions raised by defendants are whether there is any evidence to support the trial court’s findings (1) that the property was sold during the three months’ period and (2) that there was a bona fide offer from a ready, able, and willing purchaser to purchase the property upon price and terms agreeable to both the seller and buyer during the three months’ period.
In this case we must pay particular attention to the pertinent provisions of the contract already heretofore set out. They did not require that plaintiff consummate a sale. The provisions are clear as to the duties required of the parties. In support of their position defendants rely on Morgan v. Wheeler, 153 Kan. 695, 113 P. 2d 165, and cases therein cited. In the Morgan case a written contract had been entered into between the principal and agent pertaining to the obtaining of a lease from Sears, Roebuck & Company on certain real estate in Wichita, Kansas. Failure of performance under that contract precluded the agent, in the first place, from bringing an action based on contract, and failing therein, also precluded him in his subsequent attempt to recover under quantum meruit.
Plaintiff here, in turn, relies on DeYoung v. Reiling, 165 Kan. 721, 199 P. 2d 492; and Patee v. Moody, 166 Kan. 198, 199 P. 2d 798. In the DeYoung case rules of law applicable to the situation presently before us were stated:
“The general rule is that a real estate agent or broker is entitled to a commission if (a) he produces a buyer who is able, ready and willing to purchase upon the proffered terms or upon terms acceptable to the principal; (b) he is the efficient and procuring cause of a consumated deal.
“If a real estate agent or broker is otherwise entitled to a commission, the principal cannot defeat that right by closing the deal himself or through another broker.” (Syl. ¶ 1, 2.)
In the opinion in the DeYoung case it was said:
“An owner who has knowledge that a broker with whom he has listed his property has interested a prospective customer with whom he is still conducting negotiations, cannot defeat the broker’s right to a commission by the expedient of closing the deal himself or through another broker. (12 C.J.S. 215 to 217.)” (p. 725.)
In the Pattee case the general rules were restated but it was there held that because the evidence failed to establish an express or “clearly implied” contract of agency, the broker could not recover a commission.
From the evidence introduced in support of the pleadings herein we can come to no other conclusion than that there was ample evidence to support the trial court’s findings and the findings support its judgment. The result is that both questions raised by defendants must be answered in the affirmative and the trial court did not err in any of the particulars complained of.
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The opinion of the court was delivered by
Wertz, J.:
The City of Wichita, defendant (appellee), enacted an ordinance for revenue purposes, levying a tax upon trades, occupations and businesses conducted within the city. From the district court’s refusal to invalidate the ordinance and enjoin its enforcement, the plaintiff (appellant), Noah Hampton, an individual, doing business as Noah Hampton Hay & Feed, appeals.
On July 31, 1962, the city adopted ordinance No. 26-608. The plaintiff filed his petition alleging in pertinent part that he, as well as all businesses, trades, occupations and professions, is affected by the ordinance; that an actual controversy exists between the city and the plaintiff; and that the ordinance presumes to levy a license tax for revenue purposes upon the respective trades, occupations, businesses and professions carried on within the city. The petition further alleges the ordinance is void in that it violates article 12, section 5 of the state constitution [commonly referred to as the “Home Rule” amendment]; that the ordinance is incapable of enforcement in that it provides for no penalty for its violation; that it is unreasonable, vague and indefinite; and that the classification is arbitrary, discriminatory, and so vague that the plaintiff cannot comply with its terms. Plaintiff asked the court to enjoin the city from enforcing the ordinance.
The city admitted the ordinance was enacted as an occupational tax ordinance but contended it was valid and authorized by article 12, section 5 of the state constitution and its operation should not be enjoined.
The case was submitted on the pleadings with the ordinance attached thereto. It was stipulated the only question involved was the interpretation of the ordinance and its validity. The court struck certain portions of the ordinance as being invalid, found the remaining portions of the ordinance to be valid, and denied plaintiff relief.
Article 12, section 5 of our state constitution (effective July 1, 1961) provides in pertinent part:
“(b) Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class: . . .
“(d) Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government.”
The mentioned constitutional amendment confers on cities the power to determine their local affairs, including the levying of taxes, except when such tax is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class.
Having in mind the new power of the cities to levy occupational and other taxes, the state legislature, utilizing its right to limit or prohibit this power, enacted general statutes of prohibition, limitation and procedure relating to the levying or imposition of taxes, excises, fees, charges and other exactions. (G. S. 1961 Supp., 12-137 through 12-141.) Section 12-139 provides that no city shall impose an excise tax, or tax in the nature of an excise, upon a sale or transfer of personal or real property or the use thereof. Section 12-140 provides no city shall have the power to levy and collect taxes on incomes from whatever source derived. Section 12-141 provides in part that nothing in the act shall prohibit or be construed as prohibiting any city from imposing license fees for the privilege of engaging in any business, trade or occupation, but the determination of any such license fee shall not be based on any amount the licensee has received from the sale or transfer of personal or real property, or for the rendering or furnishing of a service, or on the income of the licensee.
The legislature did not see fit to impose any further restriction on cities imposing an occupational tax such as imposed by the ordinance in the instant case.
No useful purpose would be gained in setting out the ordinance verbatim. Suffice it to say we have carefully examined it and find nothing contained in the ordinance inconsistent with the provisions of article 12, section 5 of the state constitution, and we have been cited to no section of the statute which limits the city in imposing the occupational tax under the ordinance in the instant case.
Plaintiff contends the ordinance attempts to place a tax on real estate in violation of G. S. 1961 Supp., 12-139. We find no merit in this contention. The ordinance creates no property tax nor attempts to impose a tax on the sale or transfer of real or personal property or the use thereof, nor does the ordinance make the tax a charge upon any specific property; it is solely an occupational tax on the business conducted.
The plaintiff further contends the ordinance cannot be enforced for the reason no provision is made by statute for the collection by civil action of the tax. The legislature provided no method for the collection of taxes levied by cities under the constitutional provision, and the ordinance does not make the tax a charge upon any specific property nor does it provide any means or remedy for recovery of the tax. The only method of collection of the tax is by enforcement of the personal liability created on the business conducted. Therefore, inherent in the power granted by the constitution to cities to levy taxes, absent any legislative action providing a method for the collection of the tax, is the implied power to collect such taxes. While the ordinance contains no provision for recovery of the tax by civil action, its failure to so provide will not prevent the city from later exercising the privilege given it by the inherent provisions of the constitution.
Under the authorities it may be stated that a tax is not a debt in the ordinary acceptation of that term, and consequently a civil action will not lie for its recovery, except in those cases where the statute expressly confers the right to bring such an action or where it impliedly confers such, right by omitting all mention of any method for the collection of the tax. (Comm’rs of Stafford Co. v. National Bank, 48 Kan. 561, 562, 30 Pac. 22.)
In State, ex rel., v. Snell, 127 Kan. 859, 860, 275 Pac. 209, in quoting from 3 Cooley on Taxation, 4th ed., § 1331, p. 2631, it was stated:
“ ‘The question often arises whether the ordinary remedies for the collection of debts can be applied to taxes. In general it will be found that statutes imposing taxes make special provision for their collection, and do not apparently contemplate that any others will be necessary; but these may, nevertheless, fail; and the question then arises whether the tax must fail also, or whether resort may be had by the state to such remedies as would be available to individuals to enforce demands owing to themselves. But instances have occurred of tax laws which provided for laying the tax, but made no provision whatever for collection. In such case it may well be held that the legislature contemplated the enforcement of the tax by the ordinary remedies; and therefore, if the tax was assessed against an individual, that assumpsit or debt would lie for the recovery thereof. In other words, the implication of an intent to give a remedy by suit is so strong as to be conclusive, where the statute provides for a tax, but is silent as to the method of collection.’ (See, also, 26 R. C. L. 380, 381; 37 Cyc. 1240, 1241; note in 41 L. R. A., n. s., 730, 734; United States v. Chamberlin, 219 U. S. 250, 31 Sup. Ct. 155; Pioneer Oil & Refining Co. v. State, 273 S. W. 615.)”
The trial court did not err in holding that the city might maintain a civil action for the collection of the tax.
Plaintiff contends the ordinance is void in its entirety for the reason the lower court struck out a few specified provisions. We have examined the ordinance in question on the basis of the abstracts and briefs presented to this court and are of the opinion the trial court did err in striking certain provisions from the ordinance but conclude the ordinance is valid, does not violate article 12, section 5 of the state constitution, and is not discriminatory, arbitrary, unreasonable or incapable of enforcement. The judgment of the trial corut is affirmed as modified.
It is so ordered.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action in ejectment to recover possession of real property. Summarily the facts are: The Manhattan Bible College, hereinafter referred to as plaintiff, (appellee), was the owner of a quarter section of land in Marshall county. It entered into a written lease with Frank E. Stritesky, defendant (appellant), dated February 25, 1958, whereby plaintiff rented the land to the defendant for one year ending February 28, 1959. On expiration of this lease defendant held over with consent of the plaintiff, thereby becoming a tenant from year to year. In order to terminate such tenancy by March 1, 1961, defendant gave plaintiff thirty days’ notice in writing prior to February 28, 1961.
During the year 1960, and prior to September 10, there had been some discussion between plaintiff and defendant about a new lease. Following its receipt of a letter dated September 10 from defendant, plaintiff made a rough draft of the proposed lease and discussed the matter with defendant. Certain suggested changes were made in the lease by plaintiff, and on September 16 two copies of the proposed lease were signed by the plaintiff and mailed to the defendant with instructions to sign both copies and return one copy to the plaintiff. Several days later defendant made objection by saying that water rights had been left out of the lease.
On September 27 plaintiff drew up a new lease and mailed two copies to defendant requesting he sign the lease, have it witnessed and return one signed copy to plaintiff. The record discloses defendant received the original and copy of the September 27 lease on September 29.
The record further discloses that following the mailing of the lease and copies plaintiff heard nothing from the defendant with reference thereto. Consequently, on January 20,1961, plaintiff served notice on defendant to terminate the tenancy. On February 11, 1961, defendant wrote plaintiff he had received the notice to terminate the tenancy, and enclosed a signed copy of the September 16 lease that previously defendant had objected to for the reason it contained no provision for water rights. The lease of September 27 was not returned to plaintiff.
At the trial the defendant took the position of having accepted and signed the lease of September 27, 1960, and having mailed the same to the plaintiff. Plaintiff denied the mentioned lease was ever executed by the defendant, and further asserted there was no acceptance or any communication of acceptance of the September 27 lease.
After all the evidence was in, the parties, through their respective counsel, agreed that the case be submitted to the jury on two special questions: “1. Did the defendant, Frank Stritesky, at any time prior to the 24th day of January, 1961, communicate to the plaintiff, Manhattan Bible College, his acceptance of the lease offered to him by the plaintiff?” and “2. If your answer to Question No. 1 is in the affirmative, state the manner in which such communication was made, and the time, or approximate time, of such communication.” The jury in its verdict for plaintiff answered the first question in the negative; thus, the second question did not require an answer.
The defendant filed a motion for judgment notwithstanding the verdict and a motion for a new trial. Plaintiff filed a motion for judgment on the answer to the special question. Subsequently the court overruled defendant’s motions and sustained plaintiff’s motion and entered judgment in plaintiff’s favor for possession of the property.
From the judgment entered defendant appeals only from the judgment and the order overruling his motion for judgment notwithstanding the verdict. The defendant did not appeal from the order overruling his motion for a new trial nor does he specify such ruling as error.
In his brief in this court defendant complains of certain trial errors. All that need be said on this issue is that trial errors cannot be considered by the appellate court unless a motion for a new trial, based upon such errors, has been filed by the complaining party and acted upon by the trial court and its ruling thereon included in the notice of appeal and thereafter specified as error in the appellate court. (Jones v. Kansas City Embalming & Casket Co., 190 Kan. 51, 53, 372 P. 2d 60.) An appeal perfected only from “decisions, findings, rulings and judgments” does not constitute an appeal from an order overruling a motion for new trial, and under such circumstances this court has no jurisdiction to review trial errors in the judgment. Moreover, an assignment of error to the effect that the trial court erred in rendering judgment amounts to nothing more than the decision is wrong. It does not specify any error and presents no reviewable ruling to the appellate court. (Matlock v. Matlock, 182 Kan. 631, 323 P. 2d 646.) The mentioned rules are of long standing and need no further citations.
We have also held that a motion for judgment non obstante veredicto raises questions of law and is no substitute for a motion for a new trial in testing the sufficiency of evidence. (Grigsby v. Jenkins, 183 Kan. 594, 596, 331 P. 2d 284.)
In accordance with the stipulation of the parties, the theory upon which the instant case was tried and submitted to the jury was whether or not the defendant at any time prior to the 24th of January, 1961, communicated to the plaintiff his acceptance of the lease dated September 27, 1960, and forwarded to him by the plaintiff. The record fails to disclose any other question raised in the court below. In Gilliland v. Kansas Soya Products Co., 189 Kan. 446, 451, 452, 370 P. 2d 78, this court stated:
“It has long been the rule of this court that where a party induces the trial court to try an action upon his own theory he is not in a position to complain on review drat such dieory was erroneous. (Galamba v. Steinberger, 153 Kan. 501, 112 P. 2d 78; Herl v. Herl, 154 Kan. 44, 114 P. 2d 817.) Where counsel for one party causes or invites a particular ruling, such party cannot later argue that such ruling was erroneous. (Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 499, 241 P. 2d 1192.) It is elementary that a litigant cannot take contrary positions, one in which he has sought and procured an order, ruling or judgment in the trial court and another in the supreme court in which he complains of such order, ruling or judgment; moreover, a litigant will not be heard on an appeal to complain of any order, ruling or judgment of the trial court which he suffered the trial court to make without objection. (Brown v. Oil Co., 114 Kan. 482, 218 Pac. 998.) One who by his own act invites and leads the court into erroneous action cannot complain of it nor take advantage of the ruling. (Mercer v. McPherson, 70 Kan. 617, 79 Pac. 118; Smith v. Veeder Supply Co., 137 Kan. 124, 19 P. 2d 699; Brown v. Beckerdite, 174 Kan. 153, 158, 254 P. 2d 308.) For other citations see West’s Kansas Digest, Appeal and Error, §882(1); 1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, § 440.”
Parties are bound by stipulations fixing the issues, or eliminating particular issues, and will not be permitted to depart therefrom on appeal. Except as to jurisdictional questions appellate courts are without power to go beyond the stipulations of issues made by the parties, and undertake to pass on issues withdrawn or excluded from consideration. A stipulation that only one issue, or only particular issues, are involved authorizes entry of judgment for the one party or the other as the stipulated fact or issue is decided. (83 C. J. S., Stipulations, § 22a.) Where parties by stipulation prescribe the issues on which the case is to be tried, they are estopped from thereafter asserting that the case was tried or submitted on the wrong theory; and a stipulation of this nature, unlike a stipulation which merely eliminates a single issue, amounts to a binding waiver or elimination of all issues not included. (83 C. J. S., Stipulations, § 22b.)
Defendant’s motion for judgment notwithstanding the verdict concedes for the purpose of such motion that the answer to the special question was supported by the evidence (Wilson v. St. Francis Hospital & School of Nursing, 190 Kan. 150, 156, 373 P. 2d 180) and there can be no question but what the answer to the special question supported the judgment.
In view of what has been said, the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The defendant, James D. Mooneyham, was charged with the crime of grand larceny of an automobile in violation of G. S. 1961 Supp., 21-533. The defendant was arrested in Oklahoma City, Oklahoma. Following proper extradition proceedings, and a preliminary examination in Finney County, about which no complaint is made, he was charged by information in the district court with the commission of such crime.
In the district court the defendant was informed that he was charged with the commission of a felony and that he was entitled to be represented by counsel. The defendant informed the court that he had no attorney and no funds with which to employ counsel and would accept the services of an attorney if one were appointed to represent him. The court inquired if he had any preference of counsel and upon his reply in the negative, it appointed Duane E. West, a qualified and competent practicing attorney of the Finney County Bar, to represent the defendant in the action. On January 21, 1963, the defendant was brought before the court for formal arraignment and in the presence of his attorney, entered a plea of not guilty.
A jury was duly impaneled and sworn to try the cause, and the state introduced its evidence and rested. The defendant introduced his evidence and took the witness stand and testified in his own behalf and rested.
The evidence showed the case was the ordinary one of larceny of an automobile. The proof of larceny was not contested; the car was taken from the driveway of the owner s residence in Garden City without his consent. A few days later the automobile was found in the possession of a used car dealer in Oklahoma City, Oklahoma, having been sold to him by the defendant without a certificate of title or other proof of ownership. The defendant accounted for his possession in very poor dime-novel fashion. The stock instructions relating to the grand larceny of an automobile by an agent and of the recent possession of stolen property were given, and a verdict of guilty was inevitable. (State v. Shehi, 125 Kan. 110, 263 Pac. 787.)
The defendant filed a motion for a new trial and moved to defer sentencing until the motion could be heard. On February 8, 1963, the motion was heard and overruled.
On the same day, the court inquired of the defendant and his counsel whether they had any legal reason to give why the judgment and sentence of the court should not be pronounced against the defendant. No just cause or reason was given, and the defendant stated that he had been fully advised of his rights under the law. The court then pronounced the defendant guilty of the crime of grand larceny of an automobile as charged in the information in accordance with the verdict returned by the jury, and thereupon the defendant was sentenced to confinement at hard labor in the Kansas State Penitentiary for a term not less than five nor more than fifteen years.
The journal entry of the defendant’s conviction expressly recites that after judgment and sentence was pronounced against him, he made application to the court for a parole (to be released on probation, or for suspension of the execution of the sentence imposed). (G. S. 1961 Supp., 62-2239.) The court heard argument of counsel and being fully advised in the premises denied the application for parole.
Following his conviction and sentence and the denial of his application for parole, the defendant filed an affidavit pursuant to G. S. 1961 Supp., 62-1304 stating that he intended in good faith to appeal his conviction to the supreme court; that a transcript of the proceedings in the district court was necessary to enable him to prosecute the appeal, and that he did not have means to pay for the same. He also filed a motion in the district court for the appointment of competent counsel to perfect and assist him in the prosecution of his appeal in the supreme court pursuant to Prefatory Rule No. 1 (†). (Rules relating to appellate procedure in criminal cases, 192 Kan. II.)
On July 12, 1963, the district court entered its order directing that a transcript of the proceedings be furnished the defendant at the cost and expense of Finney County, and that Duane E. West, of Garden City, be appointed to perfect and prosecute the defendant’s appeal.
In view of conclusions hereafter announced, nothing would be gained by detailing the alleged trial errors on which fhe appellant relies in support of his appeal.
The determining question presented is whether, under the circumstances, the defendant’s voluntary application for a parole from the judgment and sentence imposed, constitutes an acquiescence in the judgment of conviction so as to preclude his right to appeal therefrom. We think it does.
Our statute, G. S. 1949, 62-1701, giving a defendant the right of appeal as a matter of right from a judgment against him, is clearly for his benefit and such right may be waived by him through acquiescence in fhe judgment (Wilhite v. Judy, 137 Kan. 589, 590, 21 P. 2d 317; In re Bair, 166 Kan. 228, 199 P. 2d 807; State v. Morse, 191 Kan. 328, 330, 380 P. 2d 310), or failure to perfect the appeal in the time and manner prescribed. It has been held that a waiver will be implied from any act on the part of fhe accused inconsistent with an intention to take an appeal, except in capital cases or where the punishment is life imprisonment. (State v. Miller, 165 Kan. 228, 194 P. 2d 498; State v. Wilson, 187 Kan. 486, 357 P. 2d 823; 24 C. J. S., Criminal Law, § 1668, p. 1047.) Likewise, the right to appeal may be waived by pursuing an alternative remedy, although the relief sought by the accused is discretionary with the court and its order of refusal cannot be appealed. (4 Am. Jur. 2d, Appeal and Error, § 270, p. 764.)
The defendant recognized the validity of the judgment when he sought affirmative relief from serving the sentence imposed. By voluntarily making application for parole he thereby waived any alleged trial errors and acquiesced in the judgment. The rule of acquiescence rests upon the recognition of the judgment as valid. This recognition is shown by partial as well as full compliance. A defendant cannot yield obedience to a judgment and afterwards appeal from it. (Wilhite v. Judy, supra; State v. Massa, 90 Kan. 129, 132, 132 Pac. 1182; State, ex rel., v. Piper, 103 Kan. 794, 796, 176 Pac. 626; Mick v. Wilson, 130 Kan. 536, 539, 287 Pac. 257.) See, also, A. P. Brown v. State, 5 Okla. Cr. 667, 115 Pac. 606.
The fact that the relief sought was discretionary with the district court and that relief was denied, does not change the character of the defendant’s express consent to the validity of the judgment. Under the circumstances which attend, the judgment of February 8, 1963, became unassailable, and the defendant’s right to a review of the conviction by an appellate court is barred.
The appeal is dismissed.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a workmens compensation case in which the respondent appeals from a judgment of the district court sustaining a motion of the claimant to quash the respondent’s appeal from an order of a workmen’s compensation examiner. The claimant cross-appeals from an order of the district court remanding the case for review by the workmen’s compensation director and in assessing the costs to the claimant.
The basic question is whether the district court erred in sustaining the claimant’s motion to quash the respondent’s appeal to the district court and in remanding the case to the workmen’s compensation director.
The facts giving rise to the issue presented are not in dispute.
The claimant filed his application for hearing on a workmen’s compensation claim on April 11, 1962. Thereafter, a hearing was held and evidence submitted to an examiner by both parties. On April 9, 1963, the examiner filed his award with the workmen’s compensation director, awarding the claimant compensation against the respondent, a self insurer.
On April 11, 1963, the respondent requested the workmen’s compensation director to review the award of the examiner as provided in G. S. 1961 Supp., 44-551.
On April 12, 1963, claimant made demand upon the respondent and its attorney of record for payment of the award pursuant to G. S. 1961 Supp., 44-512a.
By letter dated April 17, 1963, the director set the hearing on the application for review of the award entered by the examiner for May 10, 1963, this being more than twenty days after service upon the respondent of claimant’s 44-5l2a demand for payment.
On April 29, 1963, and prior to the hearing of respondent’s request for review, respondent filed a notice of appeal “from all decisions, findings, awards and rulings of the Examiner in the above entitled matter, which is shown filed on the 9th day of April, 1963, to the District Court of Sherman County, Kansas, all within the terms and provisions of G. S. 1961 Supp., 44-556.”
The respondent also filed an appeal bond as required by G. S. 1949, 44-530 and G. S. 1961 Supp., 44-556, since it was a self insurer.
The respondent accompanied the notice of appeal with a letter to the director, the body of which reads:
“Enclosed please find ‘Notice of Appeal’ in the above captioned matter which I would appreciate your filing according to Law. It remains the desire of my client, Coffey Grain Company, that the review set by you for May 9, or May 10 be heard.”
After the notice of appeal was given, the workmen’s compensation director transmitted a certified copy of the notice of the appeal to the clerk of the district court along with the award of the examiner and other papers pertaining to the action.
On May 3, 1963, following receipt of the respondent’s notice of appeal, the workmen’s compensation director sent a letter to counsel for both the claimant and the respondent, the material portion of which reads:
“As you know, a hearing on an application for review of the award entered by Examiner jjhomas C. Boone on April 9, 1963, has been set for Friday, May 10, loos',' at the court house in Salina. However, since this case has now been appealed to the District Court, it is my opinion that this divests me of jurisdiction in the matter. Therefore I deem it advisable to cancel said hearing in Salina on May 10.”
Thereafter, on May 6, 1963, counsel for the claimant sent a letter to the workmen’s compensation director which reads in part:
“. . . I can appreciate your belief that the later appeal has deprived you of jurisdiction in this matter, but I am wondering whether it would be possible for you to issue a formal decision that the request for review is cancelled, nullified, or set aside due to the later appeal and that the request for review is accordingly dismissed? If this is possible, it would be greatly appreciated.”
Following this letter the director, in the absence of any appearances by counsel, issued an order dismissing the respondent’s review proceedings for lack of jurisdiction. The order was made effective May 10,1963.
Thereafter, claimant filed a motion to quash the appeal of the respondent to the district court on the ground that “the pretended Notice of Appeal in this matter is insufficient to grant this court jurisdiction of the subject matter of this action.”
The claimant’s motion to quash the appeal was sustained by the district court on the 10th day of June, 1963. The material portion of the journal entry reads:
“That the appeal is premature because the appellant had asked for a hearing from the Workmen’s Compensation Director in compliance with 44-551; that at the time the appeal was made the Workmen’s Compensation Director had not yet made a determination; that despite the conflict between 44-551, 44-549, and 44-512a that a workmen’s compensation matter is not appealable until the final order is made in compliance with 44-551; therefore, the Motion to Quash is sustained, and the case is remanded for review by the Director.
“The costs of this action are charged to the Claimant.”
On the same day (June 10, 1963) the claimant filed an action in the same district court to recover the total amount of the examiner’s award, relying on G. S. 1961 Supp., 44-512a. Because of claimant’s conflicting position in these two cases, the district court stayed the 44-512a action pending the outcome of the instant appeal.
Both parties to this appeal take inconsistent positions. The claimant argues an appeal from an award of an examiner per se with nothing else happening to the examiner’s award is insufficient to comply with G. S. 1961 Supp., 44-556. Yet, the claimant apparently felt such an award sufficient to serve a notice under 44-512a, supra. The claimant further takes the position that the respondent’s failure to appeal from the order of the director dismissing the review proceedings renders such order final, and presumably, under the claimant’s theory, ripens the examiner’s award into a final award for the claimant.
The respondent, on the other hand, in its brief says after giving consideration to 44-512a, supra, and G. S. 1961 Supp., 44-549, that it determined, in order to protect itself from the effects of 44-512a, supra, it must file an appeal and post the required bond. The respondent, however, takes the position that G. S. 1961 Supp., 44-551, was not intended to affect the jurisdiction of the district court to hear appeals by reason of the specific provision therein relating to appeals taken pursuant to G. S. 1961 Supp., 44-556, and says the director’s action in this case is an apparent acquiescence in such interpretation. The respondent further cites the court to the provisions of G. S. 1961 Supp., 44-549, which makes the examiner’s award, when filed in the office of the commissioner, deemed to be the award of the commissioner. It thus argues the award of the examiner, having been filed with the director, became under 44-549, supra, the award of the director and thus appealable under 44-556, supra.
Throughout this opinion it should be noted that review proceedings contemplated by G. S. 1961 Supp., 44-551 are not the review proceedings contemplated by the provisions of G. S. 1961 Supp., 44-528, and all reference to review proceedings herein is limited to such proceedings as are contemplated under 44-551, supra. (See, Duncan v. Davidson Construction Co., 170 Kan. 520, 227 P. 2d 95.)
By the term “final award” as used throughout this opinion is meant such an award as will sustain an appeal taken pursuant to G. S. 1961 Supp., 44-556, “from any and all decisions, findings, awards or rulings of the director to the district court.” It must further be recognized that such “final award,” whether appealed or not, is subject to the review proceedings contemplated by the provisions of 44-528, supra.
To say the least, this is a bizarre proceeding in a workmens compensation case. It has come all the way to the Supreme Court prior to the issuance of a final award to the claimant by the director in the workmen’s compensation proceedings. All was initiated by the erroneous 44-512a demand issued by the claimant, prior to the issuance of a final award by the director in the workmen’s compensation proceedings. The claimant is therefore in no position to complain of delay in this matter.
G. S. 1961 Supp., 44-512a, in pertinent part, reads:
“That if any compensation awarded, agreed upon or adjudged under the provisions of the workmens compensation act of this state or any installment thereof shall not be paid to the employee or other person entitled thereto when due, and service of written demand for payment has been made personally or by registered mail on the person, firm or corporation liable to pay the same and on the attorney of record of such person, firm or corporation, payment of said demand is thereafter either refused or not made within twenty (20) days from the date of service of said demand, then the entire amount of compensation awarded, agreed upon or adjudged shall become immediately due and payable and said employee or other person entitled to said compensation may maintain an action in any court of competent jurisdiction for the collection thereof in like manner as for the collection of a debt. . . .” (Emphasis added.)
Until a workmen’s compensation award becomes the final award of the workmen’s compensation commissioner (now director), it is not due the claimant. Thus, before a claimant may invoke the provisions of the foregoing statute as construed by this court, the compensation awarded must be the final award of the director.
This statute (44-512a, supra) was before the court in Bentley v. State Department of Social Welfare, 187 Kan. 340, 356 P. 2d 791, where it was said the statute is designed to insure the prompt payment of compensation awards, and held that an appeal from the final award of the commissioner did not stay the operation of the statute if the employer was served with the required notice under 44-512a, supra. The statute was again before the court in Harris v. Moore Associates of Topeka, 188 Kan. 822, 365 P. 2d 1085, where it was further clarified; and again in Teague v. George, 188 Kan. 809, 365 P. 2d 1087, where a supersedeas bond filed by the employer and his insurance carrier was held not to stay payment of compensation pending the appeal, or a prosecution of the statutory action commenced by the workman under 44-512a, supra, to recover a lump sum judgment.
G. S. 1961 Supp., 44-551, provides, among other things, that:
. . all acts, findings, awards, decisions, rulings or modifications of findings or awards made by such examiner, shall be subject to review and approval by the director upon written request of any interested party within ten (10) days and if no such request is made, then the director shall approve such actions, findings, awards, decisions, rulings or modifications of findings or awards of the examiner and the filing of such a request for review shall not be a prerequisite to an appeal as provided for in section 44-556 of the General Statutes Supplement of 1959. . . .”
This section of the workmen’s compensation act was before the court in Ward v. Marzolf Hardwood Floors, Inc., 190 Kan. 809, 378 P. 2d 80, where it was said:
. - Under the 1959 [1957] act [G. S. 1959 Supp., 44-551] the examiner’s award did not become final until approved by the commissioner. Under the 1961 act, as amended, [G. S. 1961 Supp., 44-551] the award of the examiner becomes the award of the director unless within ten days after the filing of the same the aggrieved party makes a written request to review the examiner’s award, and if no application for review is made, at the expiration of ten days the award of the examiner becomes the award of the director. . . .” (pp. 810, 811.)
In effect, what the court has said in construing 44-551, supra, is that an award of the examiner does not become a final award of the director until the expiration of ten days after it is filed, or until a request for review, filed within the ten-day period by an interested party, is determined by the director.
The portion of 44-551, supra, reading “and the filing of such a request for review shall not be a prerequisite to an appeal as provided for in section 44-556 of the General Statutes Supplement of 1959,” is construed to mean that an appeal may be taken from the final award of the director, if no request for review is filed with the director within the ten-day period provided in 44-551, supra; but if an interested party files a request for review under 44-551, supra, within the ten-day period, no appeal can be taken to the district court until such request for review is ultimately determined by the director, or otherwise terminated by the party making the request.
G. S. 1961 Supp., 44-556, in pertinent part, provides:
“Any party to the proceedings may appeal from any and all decisions, findings, awards or rulings of the director to the district court of the county where the cause of action arose upon questions of law and fact as presented and shown by a transcript of the evidence and proceedings as presented, had and introduced before the director. Such appeal shall have precedence over all other hearings except those of like character, and shall be heard not later than the first term of said court after the appeal has been perfected. On any such appeal the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the director as justice may require. . . .” (Emphasis added.)
This statute contemplates appeal to the district court from a final award of the director.
We must consider another section of the workmen’s compensation act which on its face conflicts with 44-551, supra. G. S. 1961 Supp., 44-549, provides as follows:
“All hearings upon all claims for compensation under this act shall be held by the commissioner, or examiner, in the county in which the accident occurred, unless otherwise mutually agreed by the employee and employer. The award, finding, decision or order of an examiner when filed in the office of the commissioner shall be deemed to be the award, finding, decision or order of the commissioner. The commissioner shall for the purpose of this act have power to administer oaths, certify to official acts, take depositions, issue subpoenas, compel the attendance of witnesses and the production of books, accounts, papers, documents, and records to the same extent as is now conferred on district courts of this state under the code of civil procedure." (Emphasis added.)
This section of the statute, as above worded, was passed by the legislature in 1955 and replaced G. S. 1949, 44-549, which made the examiner’s award the same as that of the commissioner “when approved and confirmed by the commissioner and filed in the office of the commissioner.”
Did the legislature in 44-549, supra, as it now appears in the workmen’s compensation act, intend to say an award becomes final when filed in the office of the commissioner (now director), so that a demand under 44-512a, supra, could be made, and an appeal under 44-556, supra, could be taken? If so, it conflicts with 44-551, supra, which was enacted six years later. We think the legis Iature overlooked 44-549, enacted in 1955, when it passed 44-551 in 1961, and therefore hold that the provisions of 44-549 must yield to the provisions of 44-551, as construed herein, to the extent that the provisions conflict as to the finality of an award.
On the facts in this case it will be noted the respondent first requested the director to review the examiner’s award pursuant to 44-551, supra. Later the respondent appealed the award of the examiner to the district court, and this was done before the director had an opportunity to make the previously requested review.
Applying the foregoing statutes as construed to the facts in the instant case, we hold there has been no final award entered by the director in the workmen’s compensation proceedings. Therefore, the claimant’s demand for payment pursuant to the provisions of 44-512a, supra, was premature and ineffectual to authorize an action for a lump sum judgment.
The action taken by the workmen’s compensation director on his own motion dismissing the review proceeding, without the appearance of counsel for the respective parties, contrary to the specific written request of counsel for the respondent that the review proceedings set for hearing on May 10, 1963, be heard, was erroneous, and on the authority of Ward v. Marzolf Hardwood Floors, Inc., supra, we hold it to be a nullity. In the Ward case action by the director which cut off the claimant’s right to review was held to be a nullity.
It may be argued that the appeal by the respondent from the examiner’s award constituted a waiver of the review proceedings which it initiated by invoking the review provisions of 44-551, supra, but this is inconsistent with the respondent’s letter transmitting the notice of appeal to the director wherein the respondent requested that the review proceedings set before the director be heard on the day set.
In view of the inconsistency in the statutes heretofore noted and the premature notice filed by the claimant under 44-512a, supra, we do not construe the respondent’s appeal to the district court as a waiver of the review proceedings. It cannot be overlooked that the respondent’s appeal was from the award of the examiner and not from the final award of the director.
We hold the respondent’s appeal of the examiner’s award to the district court was ineffectual to confer jurisdiction on the district court. It failed to satisfy the requirements of G. S. 1961 Supp., 44-556 because it was not an appeal from a final award of the director. (See, Brown v. Shellabarger Mill & Elev. Co., 142 Kan. 476, 50 P. 2d 919; and Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456.) The district court was therefore correct in sustaining the claimant’s motion to quash the appeal on the ground that it lacked jurisdiction.
The claimant argues the district court had no authority to remand the case to the director for further proceedings. It is contended where a court does not have jurisdiction of the subject matter of the action, it can only dismiss the case for want of jurisdiction. (Citing, Behee v. Beem, 156 Kan. 115, 131 P. 2d 675; Moeller v. Moeller, 175 Kan. 848, 267 P. 2d 536; and Bryner v. Fernetti, 141 Kan. 446, 41 P. 2d 712.)
On this appeal the claimant’s objection is inconsequential. A determination by the district court that it has no jurisdiction of the appeal sends the case as a matter of course back to the director, and since we hold the director’s action dismissing the review proceedings is a nullity, the review proceedings before the director remain pending for further action and determination.
The claimant also specifies in his cross appeal that tire district court erred in assessing the costs of the respondent’s abortive appeal to the claimant. (Citing, Kent v. Comm’rs of Labette Co., 42 Kan. 534, 22 Pac. 610.)
Obviously, the district court has authority to determine whether it has jurisdiction of an appeal in a workmen’s compensation case. In presenting such case to the district court and in making such determination the parties are before the court. In assessing the overall situation presented the district court apparently felt, as does this court, that the entire expense of the appeal was initiated by the erroneous 44-512a demand of the claimant. It therefore assessed the costs to the claimant. In the assessment of costs the district court has broad discretionary powers (G. S. 1949, 60-3706), and we cannot say under the circumstances presented by this case that it abused the exercise of its power of discretion.
The judgment of the lower court dismissing the respondent’s appeal and assessing costs to the claimant is affirmed.
Jackson, J., not participating. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
This was a damage action for breaking a pipe line owned and operated by the plaintiff, Phillips Pipe Line Company, which crossed real estate belonging to the defendant landowner, Kansas Cold Storage, Inc. The action was commenced by Phillips against the appellant and James K. Steele Excavation Company, a corporation. The petition was later amended to add James K. Steele, an individual, d/b/a James K. Steele Excavation Company.
On April 23,1962, over the objection of the defendant landowner, a default judgment was entered in favor of Phillips against James K. Steele d/b/a James K. Steele Excavation Company for the sum of $13,489.16.
Thereafter, a jury trial was had which resulted in a judgment in favor of Phillips against the defendant landowner in the sum of $12,076.16. Following the overruling of its post trial motions the defendant landowner appealed.
Phillips’ petition, omitting all formal allegations, alleged that the appellant was the owner of an 80-acre farm; that Phillips owned two pipe-line easements across the farm which were duly recorded in Sedgwick County; that the appellant, acting through its duly authorized agents, contracted with James K. Steele Excavation Company to grade and excavate the land lying adjacent to, over and upon the pipe line of Phillips; that for the proper performance of the contract, the appellant allowed Steele and his employees, to go upon the land with earth moving equipment; that in carrying out the contract, an employee of Steele struck and broke the pipe line; that the appellant, knowing or having reason to know of such pipe line and its location, was negligent in the following respects: allowing Steele to grade and excavate in the area where the pipe line was broken; failing to give warning or notice to Steele of the pipe line or its location, or secure a contractor who was possessed of the proper equipment, skill and knowledge to protect the pipe line; failing to properly supervise the conduct of Steele in the grading and excavating, and authorizing and permitting him to grade and excavate to depths below plow depth.
The petition then alleged specific acts of negligence of Steele and alleged that the proximate cause of the loss sustained by Phillips was due to the negligence of the defendants.
The petition contained a second count based upon res ipsa loquitur and incorporated therein all of the pertinent allegations of the first count of the petition. (The cause of action based upon res ipsa loquitur was dismissed at the conclusion of plaintiff’s evidence. )
The appellant demurred to Phillips’ petition, which demurrer was overruled, and in view of conclusions hereafter announced it is unnecessary that we consider the correctness of the district court’s ruling thereon. However, in passing we note that the petition disclosed there was a contract between the appellant and Steele for grading and excavating, but no other particulars, if any, of the contract were alleged, specifically with respect to who had control and direction of the work involved, nor were there any allegations that the contract for grading and excavating was inherently and intrinsically dangerous.
Phillips’ evidence is summarized: John L. Rear was president of Kansas Cold Storage, Inc., at all times here pertinent, and it owned an 80-acre farm which was used for commercial hog raising. The farm extended one-half mile east and west and a quarter mile north and south. It is described as the North one-half of the Northeast quarter of Section 2. 29th Street runs east and west along the north side and West Street runs north and south along the east side.
Phillips owned two easements across the farm for the construction, operation, repair and maintenance of pipe lines. One easement agreement was executed by appellant’s predecessor in title in 1941, and the second was executed by appellant in 1951. Both were blanket easements covering the entire 80-acres without any designation as to where a pipe line should be laid or extended across the property. The first agreement provided that Phillips should bury its pipe line below plow depth, but the second agreement contained no clause relative to the depth the pipe fine was to be buried; both provided that the grantor landowner could fully use and enjoy the premises except for the purposes provided in the easement agreements. Both agreements were recorded.
Pursuant to the 1941 easement, Phillips laid an 8-inch line, known as the Cheney “A” line, which ran in a northeasterly-southwesterly direction across the farm. Later, under the 1951 easement, a 12-inch line, called the Cheney “B” line was laid parallel to and eight feet to the left of the Cheney “A” line.
In 1950, before the Cheney “B” line was constructed, Bear contracted with the Steele Excavation Company to excavate and grade two drainage ditches running east and west across the farm. The purpose of the drainage ditches was to drain off excess water. One ditch was constructed near the south side of the property and the other was constructed near the north side. The ditches were 10 feet wide at the bottom with sloping sides and approximately two feet below ground level at the east end and a little higher or about one and a half feet deep at the upper or west end so that sewage, water and refuse would drain from west to east.
Before Steele commenced the initial excavating and grading, Phillips was contacted to locate the Cheney “A” line. In constructing the ditches, Steele exposed the Cheney “A” line in the south ditch and it has remained exposed. However, the pipe line was buried deeper where Steele constructed the north ditch and is was not contacted or exposed.
In 1951 Phillips requested permission to take up the Cheney “A” line crossing the farm and the drainage ditches to rewrap it. The line was rewrapped, placed back in the ground and reburied, however, the line still remained exposed in the south ditch.
Prior to March, 1959, Raymond Wirth and the appellant entered into an oral contract for the purpose of raising hogs on the 80-acre farm for their mutual profit. Wirth was a building contractor and part-time hog raiser. He was not an employee of the appellant. Under their contract, the appellant was to put up the money and Wirth was to run the hog farm as he saw fit; he was to manage the farm, feed and take care of the hogs and make a profit, and after all expenses were deducted he was to divide the profits with the appellant fifty-fifty. Wirth spent afternoons and evenings out at the hog farm. Neither Bear nor anyone at Kansas Cold Storage directed his work. He was his own boss and his duties consisted generally in overseeing the operation.
Early in March, 1959, Wirth contacted Bear and suggested that the north drainage ditch be cleaned out in order to get better drainage of the farm. Bear gave him approval to go ahead, and suggested Steele for the job since he had originally dug both ditches. Wirth contacted the Steele Excavation Company and Steele met him at the farm. Wirth entered into an oral contract with Steele to clean out the north ditch at a stated rate per hour. The only direction Wirth gave Steele regarding the ditch was to “just clean it out.” The manner in which the work was to be done was left entirely up to Steele. Wirth knew there was a pipe line across the tract somewhere but did not know exactly where it crossed the field underneath the ground. He had seen the marker on the north side of the land (south side of 29th Street), but it did not enter his mind to tell Steele about it, if it had, he would have mentioned it. He did not see Steele again at the farm.
Steele started the job on the 20th or 21st of March, 1959, using his own equipment. With respect to the contract, he testified:
“I do not recall any specifications being given. They just wanted it cleaned out. I can remember how wide the drainage ditch was because I dug it originally. . . .
“A man by the name of Southworth was operating the equipment when the accident occurred. I was the one that directed him as to the work. He was using a crawler tractor with a carryall behind it. . . .”
Southworth testified:
“I was to clean out the silt and dirt that had worked into the drainage ditch. The ditch was approximately ten feet wide at the bottom and had slopes on either side. The ditch was approximately two feet deep at one end and a foot and a half to two feet at the other end. I was told to clean it out by Mr. Steele. I did not know of the existence of any pipe lines. I was working on a slope pulling a scoop with a tractor when I hit the pipe line. . . . Mr. Steele told me to do the job, to clean out tire ditch.”
In the late afternoon of March 22, 1959, Wirth went out to the hog farm and saw the operator cleaning the drainage ditch. At that time Southworth had completed cleaning the ditch east of the Cheney “A” line and some work had been done on the west side, but most of the ditch west of the pipe line remained to be cleaned. Wirth went over to where Southworth was working and had a brief conversation with him. When Southworth came to work the next morning, March 23, 1959, he parked his car on the south side of 29th Street in front of the painted posts and marker placed there to indicate Phillips’ Pipe line. He walked about 600 feet across the field to his equipment and commenced reworking the ditch immediately east of where the Cheney “A” line crossed under it, where he had worked the night before. While reworking the ditch at that point, his equipment struck the line, ruptured it and caused gasoline to flow into the ditch. Measurements taken outside of the drainage ditch after the break occurred indicated the Cheney “A” line was 30 inches below ground level on one side of the ditch and approximately 28 inches below ground level on the other side.
Bear was not a witness for either party but his written statement to Phillips’ witness Coyle is summarized and quoted as follows: Bear knew of the existence of the pipe line crossing the farm, but he did not know whether Wirth knew about it or not. When Wirth talked with Bear about cleaning out the ditch, Bear stated:
“I did not say anything to Mr. Wirtlis about the existence of the pipeline. It didn’t occur to me. The fact that the drainage ditch had been dug 8 or 9 years ago suggested to me that there was no danger of the pipeline being ruptured. ... I did not have any contact with Mr. Steele of the Excavation Company.”
Shortly after the pipe line was ruptured Phillips was notified and temporary repairs were made. A few days later, the temporary repairs were made permanent and the fine was reburied. Steele finished cleaning the ditch west of the pipe line, and he was later paid by the appellant for his work.
The appellant first argues that the district court erred in overruling its demurrer to Phillips’ evidence. Stripped of all frills, under its petition Phillips had two alternatives to sustain the burden of proof for a prima facie case to impute the negligence of Steele to the appellant; first, to prove an agency or employee relationship between the appellant and Wirth and then an agency or employee relationship between Wirth and Steele; or second, an agency or employee relationship between the appellant and Steele directly. The record is bare of any direct agency or employee relationship under the second alternative.
Without belaboring the case, we are of the opinion Phillips’ evidence established that the appellant and Wirth were at least engaged in a joint adventure to commercially raise hogs. In the recent case of Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 388 P. 2d 824, it was said that a joint adventure was an association by two or more persons to carry out a single business enterprise for profit. That case discussed fully the relationship of joint adventure and it is unnecessary to repeat what was said and held on that subject, and the reader is referred to that opinion. There it was held that parties to a joint adventure may be deemed participants in a joint enterprise for the purpose of the application of the tort rule of imputing negligence, and it was said:
“. . . Under the doctrine of joint enterprise or joint adventure the negligence of one participant in such enterprise or adventure may be imputed to another participant so as to render the latter liable for an injury sustained by a third person as the result of the negligence. The law considers that each is the agent of the other, and the acts of one within the scope of the enterprise or adventure may be charged against the other. . . .” (l. c. 363.)
The appellant contends that Steele, who was employed by Wirth, was an independent contractor and that the relationship between them was that of contractor and contractee and not that of master and servant and that the appellant through Wirth, as contractee, was not liable for the negligent manner in which Steele, the contractor, executed the contract to clean the ditch. Various definitions have been given to the term “independent contractor.” In Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120, an independent contractor was defined as “. . . one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work.” (Syl. f 2.)
This definition has been consistently followed in many cases, a few of which are: Warren v. City of Topeka, 125 Kan. 524, 528, 265 Pac. 78; Bittle v. Shell Petroleum Corp., 147 Kan. 227, 231, 75 P. 2d 829; Lehman v. Grace Oil Co., 151 Kan. 145, 148, 98 P. 2d 430, and Evans v. Board of Education of Hays, 178 Kan. 275, 278, 284 P. 2d 1068. See, also, Restatement of the Law, Agencies, § 2, (3) and Restatement of the Law, Torts, § 403c.
At most, Phillips’ evidence disclosed that Wirth entered into a contract with Steele whereby Steele was to clean the silt out of the north drainage ditch at a predetermined rate per hour. Nothing else was said; no specifications were given, and the manner in which the work was to be done was left entirely up to Steele. While Phillips’ evidence was that Wirth inspected the work and conversed briefly with Steele’s employee Southworth, it can by no means be inferred that he reserved the right to direct and control the means or method of performing the work. Wirth’s and the appellant’s interest was in the result of the undertaking, that is, having the ditch cleaned of silt rather than in the particular method or means by which it was accomplished, and as previously indicated, no right of control was retained by Wirth on his behalf or the appellant’s behalf.
The appellee suggests that since Steele was to be paid at an hourly rate for the work, this was strong evidence of an employer-employee relationship existing between Wirth, the appellant, and Steele. The point is not well taken. In Smith v. Brown, 152 Kan. 758, 107 P. 2d 718, evidence of payment at an hourly rate for services was introduced in support of an employer-employee relationship, but this court determined that the general law was applicable; that it was the question of the right of control which determined the relationship and affirmed the trial court’s order sustaining a demurrer to the plaintiff’s evidence. The Pottorff case was cited and reaffirmed, and it was held that since the plaintiff was an independent contractor the defendants were not liable for his or his employee’s negligence.
Under the facts and circumstances disclosed by the evidence, we conclude that Steele, who performed the work with his own equipment according to his own methods and without being subject to the control of Wirth except as to the result of his work, stood as an independent contractor to Wirth and to his co-joint adventurer, the appellant. (Shay v. Hill, 133 Kan. 157, 299 Pac. 263; Redfield v. Chelsea Coal Co., 136 Kan. 588, 16 P. 2d 475; Brownrigg v. Allvine Dairy Co., 137 Kan. 209, 19 P. 2d 474; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868; Schroeder v. American Nat’l Bank, 154 Kan. 721, 121 P. 2d 186.)
The decisions of this court are innumerable regarding the liability of an employer for the acts of his servant, and the nonliability of a contractee for the negligence of a contractor in performing work under a contract. The landmark case in this jurisdiction and the rule regarding such nonliability is set forth in Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498, 45 L. R. A. (n.s.) 930, Ann. Cas. 1912A 590, and in the first four syllabi as follows:
“The general rule is that when a person lets out work to another, the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant and the contractee is not liable for the negligence or improper execution of the work by the contractor.
“To the foregoing rule there are many exceptions and limitations, one of which is that an owner, or a contractee, is responsible for injuries to a third party, caused by work done by an independent contractor, where the contract directly requires the performance of work intrinsically dangerous, however skillfully done.
“The mere liability to injury from doing the work contracted for can not be the test, for injuries may happen in any undertaking, and many are attended with great danger if carelessly managed, although with proper care they are not specially hazardous.
“The intrinsic danger of the undertaking upon which the exception is based is a danger which inheres in the performance of the contract, resulting directly from the work to be done and not from the collateral negligence of the contractor.”
It may be said as a general rule that a contractee is not liable for the torts or negligence of his contractor or of his contractor’s servants. (Nelson v. Cement Co., 84 Kan. 797, 115 Pac. 578; Pottorff v. Mining Co., supra; Laffery v. Gypsum Co., supra; Brownrigg v. Allvine Dairy Co., supra; Smith v. Brown, supra; Reilly v. Highman, 185 Kan. 537, 345 P. 2d 652; 57 C. J. S., Master and Servant, § 584, p. 353; 27 Am. Jur., Independent Contractors, §§ 27, 39, pp. 504, 517; 57 C. J. S., Master and Servant, §590, p. 359.)
As indicated by the Laffery case, there are exceptions to the general rule, one of which is that the owner or contractee is responsible for injuries to a third party, caused by work done by an independent contractor, where the contract directly requires the perfomance of work inherently or intrinsically dangerous, however skillfully done.
In deciding this case we start with the general rule and the exception thereto that the relationship of contractee and contractor existed between Wirth and Steele and that the appellant through Wirth, the contractee, would not be liable to Phillips for the negligence of Steele, the contractor, unless the contract directly required the performance of work inherently or intrinsically dangerous.
In the recent case of Reilly v. Highman, supra, the landowner contracted with his co-defendant to remove trees from his property in the city of Lawrence. The plaintiff Reilly was driving down the street and one of the servants of the co-defendant felled a tree on his passing car resulting in damage. The district court sustained a demurrer to the petition and this court affirmed. The Laffery case was quoted with approval and the rule was reaffirmed, that mere liability for injury from doing work contracted for cannot be the test of liability, as a great many undertakings are attended with danger if carelessly done, and that the landowner, the contractee, would not be liable to the plaintiff for the negligence of the contractor unless the employment related to work which was inherently and intrinsically dangerous. In the opinion it was said:
“On the question of what type of work is or is not considered to be inherently or intrinsically dangerous, courts have found no rule of universal application by which they may abstractly draw a line of classification in every case. Generally speaking, the proper test is whether danger 'inheres’ in performance of the work, and important factors to be understood and considered are the contemplated conditions under which the work is to be done and the known circumstances attending it. It is not enough that it may possibly produce injury. Stated another way, intrinsic danger in an undertaking is one which inheres in the performance of the contract and results directly from the work to be done — not from the collateral negligence of the contractor. . . .” (Emphasis supplied.) (l. c. 541.)
Phillips argues that while it may not be inherently and intrinsically d.angerous to remove silt from a drainage ditch, under the known circumstances here attending the work — the presence of two high pressure pipe lines crossing under the ditch carrying gasoline — the contract directly required the performance of work intrinsically dangerous, however skillfully done, and the court did not err in overruling the demurrer. We do not agree. In the first place, the appellant and Wirth did what reasonably prudent men would do. Wirth contracted with Steele who was familiar with the ditch having initially constructed it, to clean it out. Steele knew of the existence of the pipe line, knew that it was exposed in the south ditch and also knew that when he constructed the north ditch in 1950 it had not been contacted or disturbed, but was buried below the depth excavated for the ditch. Steele testified he remembered the ditch and even recalled its width. Phillips’ evidence failed to disclose that either the appellant or Wirth had any superior or better knowledge than Steele of the existence of the pipe line or its location. There is nothing to indicate that Steele was not possessed of proper equipment to do the job or that Steele or his employee lacked the proper skill or knowledge, nor is there any evidence that the appellant or Wirth knew of any lack of equipment, skill or knowledge on the part of Steele or his servant.
In the Reilly case it was not contemplated by the contracteelandowner that the trees would be removed in a manner that would result in the dropping of one of them upon the plaintiff’s passing automobile, and so here, it was unnecessary to remonstrate with Steele, the contractor, not to remove anything more than silt from the drainage ditch for the reason that he might strike the pipe line belonging to Phillips. Particularly this is true where the party to perform the contract was the same person who originally constructed the drainage ditch over the pipe line and did not contact it or strike it at that time. Applying the basic rule and the stated exception to Phillips’ evidence, the simple fact of the case is that the contract to merely clean silt out of the then existing drainage ditch did not directly require the performance of work intrinsically dangerous, however skillfully done. The pipe line was buried below the bottom of the ditch and had Southworth followed Steele’s directions “to clean out the ditch” it would not have been disturbed. The line was not struck when Southworth cleaned the ditch the evening before, but it was struck and ruptured when he attempted to rework that part of the ditch the next morning. It is clear that the damage susained by Phillips was caused by the collateral negligence of Steele and his servant Southworth, and the district corut erred in overruling the appellant’s demurrer to Phillips’ evidence. (Laffery v. Gypsum Co., supra; Dohner v. Grocery Co., 116 Kan. 237, 226 Pac. 767; Redfield v. Chelsea Coal Co., supra; Redfield v. Chelsea Coal Co., 143 Kan. 480, 54 P. 2d 975.)
In view of the foregoing, the district court is directed to sustain the demurrer to Phillips’ evidence and to enter judgment in favor of the appellant.
It is so ordered.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Valentine, J.:
The defendant in this case was .charged with murdering her husband, by poisoning him. She was found guilty of murder in the first degree, and sentenced to suffer death. She now appeals to this court. The record of the case is very voluminous, and shows in detail all the proceedings of the court below. We have examined the record carefully, and also considered carefully all the points made by the defendant’s counsel, and we must now say that we do not think that the court below committed any material or substantial error. In answer to the points made by defendant’s counsel we would say: First, we think the information was sufficient. Second, the “confession” made by the defendant was beyond all doubt voluntary.
III. The evidence introduced on the trial shows, as we think, beyond all reasonable doubt, that the stomach which was taken from the body of the deceased was the identical stomach which was analyzed by Professor Kedzie, and that no foreign substance such as strychnine or other poison could have been introduced into the stomach, or into its contents, subsequent to the death of the deceased and prior to the analysis of said stomach and its contents. This we think was all that was necessary for the purpose of allowing the jury to consider the evidence concerning the analysis. It was not necessary that the stomach should have been kept continuously under lock-and-key from the time it. was taken from the body of the deceased until the final analysis, or that it should have been kept continuously sealed up. The preliminary proof of the identity of the stomach and its contents, and that the same had not been improperly tampered with, was first submitted to the court, and passed upon by the court; and the court decided that the proof was sufficient. This we think was correct. But even if the court had erred, at the time, as to the sufficiency of the proof, still, if at the close of the trial, the proof was sufficient, the error would be immaterial. At the close of the trial the question as to the sufficiency of said, proof was again brought under review. At this time it was submitted to the jury for their consideration, under proper instructions from the court. This was also correct. Generally the decision of the court that the preliminary proof is sufficient, is only provisional, and the question of its sufficiency must also and at the close of the trial be passed upon by the jury. The jury found against the defendant upon this, and all other questions submitted to it. This we think was correct according to the evidence.
IV. Professor Kedzie, who made' the analysis of the stomach and its contents, was a chemist and toxicologist, but not a physician, or surgeon. He was allowed to testify as an expert concerning the effect of strychnine upon the human stomach and upon the human system. This we think was right. The effect of poisons upon the human system we think comes within the scope of the science of toxicology.
V. The substance of the fourth instruction asked for by the defendant and refused by the court was embodied in other instructions given. The ninth and twelfth instructions asked for by the defendant, and refused by the court, were properly refused. As we have before said, it was not necessary that said stomach should .have been kept continuously under lock- and-key, etc. And it. was not necessary that all possibility of it being tampered with should have been excluded. The court gave proper instructions upon this subject, and all that the defendant was entitled to have given. Assuming for the purposes of this case, that the eleventh instruction asked for by the defendant and refused by the court was good law, and that the fifth instruction given by the court was not good law, and still the refusal of the one and the giving of the other could not, as we think, have prejudiced the defendant’s rights in the slightest degree whatever. The instruction refused was, in effect, that the punishment for murder in the first degree is death, and that the jury should either find the defendant guilty of murder in the first degree, or acquit her. The instruction given was, that the jury might under certain circumstances find the defendant guilty of manslaughter in the first degree. Now the jury has nothing to do with the punishment for the offense, in any case; and they found in this ease that the defendant was guilty of murder in the first degree. The instruction with reference to manslaughter therefore had nothing to do with their verdict.
VI. The evidence does support the verdict; but as it is so voluminous (making over 200 pages of record,) we suppose it will hardly be expected that we shall comment upon the same in detail. There was some conflict in the evidence, however, but this court does not weigh conflicting evidence for the purpose of reversing judgments on the merits where there is sufficient evidence to uphold the verdict. We are inclined however to think that the verdict of the jury- was correct, notwithstanding the conflict in the evidence.
The judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of. the court was delivered by
"Valentine, J.:
This was a proceeding for the condemnation of a certain strip of land for railroad purposes. It seems that formerly A. G. DaLee owned the N.E. J of the S.W. J of section 1, township 13, range 19, in Douglas county. The tract contained forty acres. DaLee sold said land to A. M. Wilder for $2,400, receiving $400 down, and was to receive $2,000 more on long time. No deed has yet been executed for'the land, but D^Lee gave to Wilder a title bond for a deed. Said $2,000 has not yet been paid, nor any part thereof, nor is it yet due. The land is fenced, but has no residence upon it, and it is not used for any purpose. After the sale from DaLee to Wilder, the St. Louis, Lawrence & Denver Railroad Company procured by condemnation proceedings a strip of said land for railroad purposes. Said strip contains three-fourths of an acre of said land, and so divides the forty acres as to leave 3.56 acres on one side, and 35.69 acres on the other side. The commissioners who assessed.the damages in the condemnation proceedings assessed the total damages to the owner or owners of this forty-acre tract of land at $246.25. Wilder then appealed, or attempted to appeal, to the district court. We shall say more concerning this appeal hereafter. The ease was tried in the district court by the court, (a jury having been waived,) and the court gave to Wilder $2,500 as damages. The court then deducted the $246.25 allowed by the commissioners and then rendered a formal judgment in favor of Wilder and against the railroad company for .$2,234.75, and that execution might issue therefor. (It will be noticed that $19 of the said $2,500 is not accounted for in this judgment.) The railroad company then ■ brought the •case to this court by petition in error. The railroad company as plaintiff in error now says in its brief:
“The errors relied on as grounds,of reversal are these: 1st, Overruling the motion to dismiss the appeal. 2d, Overruling the demurrer to plaintiff’s evidence. 3d, Rendition of the judgment. The first two having been also submitted, ■and disregarded, on motion for a new trial. Our points are — 1st, That the appeal was not taken in time. 2d, That it was defective for want of a copy of the plat showing the land taken. ' 3d, That it was also defective for want of justification of the surety to the appeal bond. 4th, That the petition .and answer formed a new action of trespass, and were not proceedings under the appeal. 5th, That in any case the damages were excessive, both because founded on a speculative basis of value, and also because they gave Wilder the value of the unincumbered fee of the land, which it is admitted he did not possess. 6th, That the j udgment is erroneous, being inapplicable to an appeal, and giving no appellate redress of any sort.”
I. In answer to the first point, Wilder, the defendant in ■error, says in his brief: “The first point made by plaintiff in error is, that the appeal was not taken in-time. This objection is now heard here for the first time. In the court below the party moved to dismiss the appeal, but did not mention this ground. He did not raise the objection during the trial; did not mention it in his motion for a new trial; and has not .alleged it in his petition in error, but keeps it back, and first starts it in his brief.” In reply to this, plaintiff in error says: “This objection, so far .from being made for the first time, is properly preserved on the motion to dismiss.” There seem to be four- questions concerning the appeal which the plaintiff in error now desires to raise: First, That the appeal bond was not filed with the county clerk in time; second, that the sureties on the appeal bond did not justify; third, “that the certified copy of the proceedings of the commissioners was not delivered or transmitted to the clerk of the district court within twenty days from the rendition of the report;” and fourth, that a certified transcript of the plat, showing the land taken by the railroad company, was not filed in the office of the clerk of the district court at all. Now, the second, the third, and the fourth of these questions were raised in the court below, but the first was not. Nor has the first been raised in this couit in any mannér except by the brief of counsel. It would therefore hardly be proper for us to consider it. The appeal was probably taken in time. But for some unexplained reason the county clerk did not mark the appeal bond filed in time. This is the only objection that can be made as to the time of taking the appeal. It seems that the county clerk had' the bond in time, and approved the surety thereon in time; but why he did not mark the bond filed in time, is not shown. Probably if the plaintiff in error had raised this question in the court below, the whole thing would have been explained. But instead of raising this question in the court below, the railroad company raised other questions with reference to the appeal, and when those other questions were decided., against it, it then proceeded with the trial of the cause as though the appeal had been taken in proper time, and as though the appeal was sufficient in every other respect. If the appeal bond was actually filed in proper time, the mistake of the clerk in marking it filed at a subsequent period would not vitiate the appeal. And as the clerk had the bond and approved the surety thereon in proper time, it was probably a mistake of the clerk in marking it filed at a subsequent period. When the appeal bond was filed, then the appeal was complete. (Laws of 1870, page 184, §7.) It was not necessary that anything should be first filed in the district court.
II. It is claimed that the surety on the appeal bond did not justify. (This is designated as the third point in the brief of plaintiff in error.) It is possibly true that the sureties did not justify in this case, and yet we hardly think that this alone is sufficient ground for a dismissal of the appeal. There is no pretense that the surety was not amply sufficient; no objection was made on this ground; and from the subsequent proceedings it would seem that there was not the slightest danger of the plaintiff in error losing anything on account of any insufficiency in the surety. The plaintiff in error refers us to §723 of the code of civil procedure, (Gen. Stat. 771,) and to the case of Kelsey v. Campbell, 38 Barbour, 238. Now if said §723 is applicable at all in cases of this kind, we would still think that it is merely directory to the officer taking the security, and that a failure on the part of the officer to require the surety to justify would not invalidate the undertaking. Said case of Kelsey v. Campbell has no application to this case; for the New York code differs essentially from ours in this particular. Section 341 of the New York code provides that “An undertaking upon an appeal shall be of no effect unless it be accompanied by the affidavit of the sureties that they are each worth double the amount specified therein; ” and if objection then be made to the sufficiency of the sureties, then, “unless they or other sureties justify,” etc., “the appeal shall be regarded as if no undertaking had been given.”
III. It is also claimed, “that the certified copy of the proceedings of the commissioners was not delivered or transmitted to the clerk of the district court within twenty days from the rendition of the report.” Now if this is true it was the fault of the county clerk, and not the fault of the defendant in error. The appeal was perfected when the undertaking was given; (Laws of 1870, p. 184, §7.) And it was then the duty of the county clerk, and not the duty of the defendant in error, to transmit a copy of the proceedings to the clerk of the district court; (Laws of 1870, p. 184, §7, and pp. 155,156, §§ 1 and 2;) and such laches on the part of the county clerk is no ground for a dismissal of the appeal.
IY. It is also claimed that no copy of the plat showing the land taken was ever filed in the district court. (This is the second point made in the brief of plaintiff in error.) Now if this is true, it was the fault of the county clerk and not the fault of the defendant in error. The appeal was good without said plat. But if either party had desired to use it as evidence, such party could have procured an order of the district court on the county clerk to send it up to the district court, provided there was any such plat forming a part of the commissioners’ proceedings. Neither party seems to have desired to use it as evidence, for they had ample evidence of the exact location of the railroad without it.
Y. In thus disposing of the objections to the appeal, we have disposed of the first, second and third points made in the brief of plaintiff in error. The fourth point made in the brief, is, “ that the petition and answer formed a new action of trespass, and were not proceedings under the appeal.” It is true that there is much irrelevant matter contained in both the petition and the answer; but still we do not perceive from them that either party intended to wholly abandon the appeal, and to litigate an entirely new action of trespass. Neither do the subsequent proceedings’ show any such thing. On the contrary, we think the action was prosecuted throughout and decided as a condemnation proceeding, and as an appeal from the appraisement commissioners, except said irrelevant matter contained in the pleadings, and an irregularity in the judgment which will be hereafter mentioned.
YI. The fifth point in plaintiff’s brief is, “that in any case the damages were excessive, both because founded on a speculative basis of value, and also because they gave.Wilder the value of the unincumbered fee of the land, which it is admitted he did not possess.” First: Did the court below give to Wilder speculative damages, such as are not authorized by law? Possibly the court did; but we do not think that the record of the case sufficiently shows it. The overruling of the demurrer of the railroad company to the evidence introduced by Wilder, does not show it; for that demurrer ought to'have been, overruled, even if the court below intended to give Wilder only bare compensation for the three-quarters of an acre of land actually taken by the railroad company. The introduction of the evidence does not show it, for the court made no ruling with respect to the introduction of any of the evidence. All of the evidence was introduced without objection or exception. Neither do the findings or judgment of the court below show it. The findings were general. No special findings were asked for; and no exception was taken to those found, or to the judgment rendered thereon. Three days after the judgment was rendered, however, the railroad company made a motion for a new trial, which motion was overruled, and to this ruling the railroad company excepted. But this ruling does not show upon what basis the court below made its findings as to damages. The damages properly allowable were for the 'actual value of the land taken by the railroad company, and for the consequential diminution in value of the rest of the land. And there is nothing in the record of the case that clearly and affirmatively shows that any other damages were in fact allowed. The damages proved by the various witnesses ranged all the way from the amount fixed by the commissioners up to more than the amount allowed by the court. Some of this evidence may have been speculative; but still there is enough not shown to have been speculative or incompetent to sustain the findings of the court below. Second: We think Wilder is entitled to .the same damages as though he owned the unincumbered fee of the land. (Kuhn v. Freeman, 15 Kas. 423, 426, et seq.) DaLee is not entitled to any portion of such damages. DaLee is entitled to the $2,000 which Wilder owes him, and to nothing more, except that he holds the legal title to the land (and possibly a lien on the damages awarded if he chooses to assert such lien,) as a security for his claim on Wilder. Whether Wilder is entitled to an ordinary personal judgment for the amount of the damages, will be considered hereafter.
VII. As to the sixth point in the brief: The judgment in this case we think is erroneous so far as it attempts to authorize the recovery of $2,234.75 damages, by execution. The-object of appellate proceedings in this class of cases is simply to correct the assessment of the commissioners. The judgment does not pass the title to the land, nor to the right-of-way. It simply determines the amount which the railway company shall pay to the owner or owners of the land, or to the county treasurer for their use, in order to secure the right-of-way. It is in the nature of an award of damages, such as is made by condemnation commissioners, except perhaps that as to costs it may be in the form of an ordinary personal judgment. Counsel for plaintiff in error seem to admit that an ordinary judgment for costs would be proper, and therefore we have made the above exception. They say: “The-judgment in this cause should have been personal against the-corporation for costs only.” After the judgment is rendered in a case of this kind, then the railroad company may take the land,.or not, at its option. (Blackshire v. The A. T. & S. F. Rld. Co., 13 Kas. 515.) But until it pays for the land it gets-no title. And if it does not pay for the land within the time-prescribed by law, it may be ejected from the premises, provided of course that it has taken possession thereof. (St. Jo. & D. C. Rld. Co. v. Callender, 13 Kas. 496.) An owner of land would not want to take a judgment against an irresponsible and insolvent railroad company as payment for his land;, nor would a railroad company want to pay an enormously excessive award of damages for its -right-of-way. Therefore it is right that each, should have some choice in the matter. Upon this question, see authorities above cited, and Gear v. Sioux City Rld. Co., 20 Iowa, 523; Stacey v. Vt. Cent. Rld. Co., 27 Vt. 39; Evansville Rld. Co. v. Miller, 30 Ind. 209.
The case will be remanded to the court below, with the order that the judgment be modified in accordance with the-views expressed in this opinion.-
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The only question presented by counsel is, whether there was error in refusing a continuance. The action was brought before a justice of the peace; the amount claimed was $115, and claimed as a balance on a building-contract, due since July 1872. On appeal to the district court judgment was recovered for $61.50. The affidavit for continuance was filed in the latter court on March 26th 1875, and alleged as ground for continuance the absence of a material witness. In reference to his absence, and the probability of .procuring his testimony, the allegations are, “that the defendants have not been able to obtain the testimony of said witness; that said witness is somewhere in the territory of Colorado, but just where, or what his post-office address is, affiant does not know, although he has made numerous inquiries to ascertain it; that said absent witness went to Colorado in the spring of 1874, since which time defendant has not heard from him. Affiant further says that he expects to procure the testimony of said absent witness for the next term of this court.”
The matter of continuance is largely within the discretion of the trial court, and its ruling thereon will be sustained unless it appears that such discretion has been abused. Ed. Ass’n v. Hitchcock, 4 Kas. 40; Hottenstein v. Conrad, 9 Kas. 436; Davis v. Wilson, 11 Kas. 74. That disposes of this case, for it cannot be said that the court abused its discretion in refusing a continuance upon such a showing. The amount in controversy was small. The witness had been absent a year. His exact whereabouts was unknown. “Numerous inquiries” had failed to discover him. The defendant said he expected to procure his testimony at the succeeding term, but no facts were alleged from which the court could see that there was any probability thereof. Smith v. Williams, 11 Kansas, 104.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin, for certain property seized on attachment by plaintiff in error in proceedings against one McCormick, and claimed by defendant in error under prior purchase from said McCormick. A demurrer to the plaintiff’s evidence was overruled, and this is the error complained of. Under the pleadings, the only question to be tried was the validity of the sale to Couse. Its validity is challenged under the third section of our statute of frauds, (Gen. Stat. p. 504,) which reads:
“Every sale or conveyance of personal property, unaccompanied by an actual and continued change of possession, shall be deemed to be void, as against purchaser’s without notice, and existing or subsequent creditors, until it is shown that such sale was made in good faith, and upon sufficient consideration.”
The provisions in New York, Wisconsin, Indiana, Michigan, and Minnesota, are similar. (See Bump, Appendix.) It is claimed that this sale was unaccompanied by any change of possession, and that there was no proof that it was made in good faith, and upon sufficient consideration. The purchase was made on the 30th of December, and the seizure on the 31st. The following bill of sale was introduced in evidence :
Brookville, December 30th, 1874.
This is to certify that I have bargained, sold, and delivered to A. G! Couse, one hundred and thirty head of cattle, branded on the right shoulder (70,) also fifty tons of hay, for the consideration of $1,460. I give said A. G. Couse the privilege of feeding said cattle on my place, until the 1st day of May 1875. M. D. McCormick.
Witness, W. H. Gentry.
And the witness Gentry was called.and testified to the execution of the instrument, and the circumstances attending the transaction. Before noticing his testimony it may be well to advert to the rule which must govern a court in deciding a demurrer to the evidence. The effect of sustaining a demurrer to the evidence, is a final disposition of the case. St. Jos. & D. C. Rld. Co. v. Dryden, ante, p.278. It cannot therefore be used to deprive a party of his right to have questions of fact determined by a jury. It matters not therefore, whether the testimony which a party offers to prove a fact be absolutely conclusive, or only very weak and of uncertain import: he has a right to have that testimony considered, and its value and sufficiency determined by a jury. The court may sustain a demurrer to evidence only under the circumstances which will permit it, after all the evidence has been presented on both sides, to withdraw the consideration of the case from the jury, and decide it itself. Jansen v. City of Atchison, 16 Kas. 358. If the court would be bound to uphold a verdict in favor of a party upon the evidence, it cannot sustain a demurrer to such evidence. Turning now to the case, and we find the question purely one of fact, and resting in parol testimony. If therefore there was no testimony tending to prove the fact, then the demurrer should have been sustained. But if on the other hand, there was testimony fairly tending to prove the fact, and no contradictory testimony, then the court ought to have overruled the demurrer, and submitted the question to the jury. The witness testified that he accidentally met Couse, and was told by him that he had bought this property, and was asked to witness the bill of sale. Soon after the parties went to the house of witness, and a bill of sale was prepared and attested by him. They then went to McCormick’s place, and the latter there turned the property over to Couse. It was not however actually removed from the place. In reference to the transaction the witness testified further, as follows:
“As soon as the cattle were paid for, we started out to go to McCormick’s place. Don’t recollect -what money was paid. I did not count the money handed over, but saw Couse hand over a note and some money. They looked at it, and agreed to its being right. Couse was figuring while the bill of sale was being drawn up. I examined the note. Couse called my attention to the note. It was for thirteen hundred and some odd dollars. I don’t know when the note was due. No suggestion was made as to the nature of the note. _ It was given up to McCormick. I think it was just after the bill of sale was drawn. I don’t remember whether amount mentioned included accrued interest or not, nor who it was to. It was McCormick’s note. Couse got two dollars from me to make out the money.”
The witness proceeded further to testify as to the value of the cattle, etc., when it was admitted that the sum specified in the bill of sale was a sufficient consideration. It also appeared from his testimony that there were two other parties present at McCormick’s at the time the property was turned over to Couse, and that Couse and McCormick were intimate friends. Now here is testimony tending clearly to show good faith, and a sufficient consideration. It may not be conclusive. It may be open to suspicion. It might perhaps have been easily overthrown. Yet, standing alone, the inferences to be legitimately drawn from it are clear; and how can it be said that a jury must, as a matter of law, disregard it, or ignore the conclusions to which it plainly tends ? McCormick sells his property for a specified sum, which is proved and admitted to be a sufficient consideration, and receives his own note and money in payment. That it was his own note, is proven, and that Couse held it, appears. True, there is no testimony stating when it was originally given, or that it was given for value. Neither is there any direct testimony that the money paid was genuine, and not counterfeit; nor that it had not been borrowed partly from McCormick, and the rest from the witness, as a mere sham; nor that the money and the note and interest actually amounted to the sum specified in the bill of sale. But this only shows that the testimony was not conclusive, not that it was not sufficient in the absence of any contradictory evidence. When it appears that money was actually paid, the jury may rightfully assume that it was genuine, when there is no testimony tending to show that it was counterfeit — may rightfully assume that it was Couse’s money, when there is no testimony tending to show that it belonged to some one else. In like manner, when a note is shown to be outstanding, and there is no testimony tending to impeach it, a jury may rightfully presume that it is valid, and given for value. Of course, the matter was subject to inquiry; but there being no inquiry, the jury ought not to presume it fraudulent and void. And so also, the testimony tends to show good faith. The actual payment of a sufficient consideration strongly indicates good faith. Applying to a party accidentally met to witness the trade and the bill of sale, borrowing the small sum of two dollars to make the cash payment complete, turning over the property in the presence of witnesses, all are circumstances affecting the question of good faith, and presenting testimony for the consideration of a jury. ' We do not understand the law to imply that one purchasing property without taking actual possession, is, if there be creditors of the vendor, presumptively engaged in a fraudulent transaction, and his conduct scrutinized accordingly, but simply that one claiming under such a purchase takes nothing until he shows that he made such purchase in good faith, and for sufficient consideration. In other words, the mere production of a bill of sale, which would be sufficient as against the vendor, is not suffi-. cient as against the creditor, and - he must supplement that bill of sale with proof of good faith, and payment of value.
The judgment will be affirmed.
Valentine, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 12th of February 1873, the defendants in error purchased a farm in Leavenworth county, consisting of 160 acres; in payment therefor they gave certain property in Lawrence, in this state, and executed a mortgage on the farm for $3,333. The defendants, being husband and wife, occupied the farm with their family as a homestead. On September 9th 1874, proceedings were commenced to foreclose the mortgage on the homestead. The defendants not having the money to pay off and satisfy the same, made an arrangement with one Augustus Gates to convey to him their homestead, in consideration that Gates should assume the payment of the mortgage thereon, 'and convey to Dacotah Skinner, the daughter of defendants, eighteen years of age, a house and lot in Leavenworth City, and a tract of land in Leavenworth county containing 37f acres. The arrangements between Gates and the defendants were perfected, and on October 17th 1874 Gates conveyed the house and lot in Leavenworth City, and the 37f acres in the county, to Dacotah Skinner, by warranty deed, at the instance of said defendants. Afterward the defendants partially effected a trade of the house and lot and the said 37f- acres of land with one L. D. Nichols, for a farm of 160 acres of land in Jackson county, which the defendants claim they designed and intended to use as their homestead. Dacotah Skinner, on October 23d 1874, signed and acknowledged a deed for the house and lot, and the 37f acres of land, conveying them to Nichols. This deed was never delivered. On November 12th 1874, and before the trade was completed with Nichols, Mitchell, the plaintiff in error, commenced his action in the court below to recover from the defendants $350, and interest. In this action he obtained an order of attachment against the defendants, and had the property conveyed to Dacotah Skinner by Gates, levied upon. The levy was made November 18th, 1874. The defendants never occupied either piece of land attached. The court, on the motion of the defendants, discharged the attached property, “ upon the ground that the property was the proceeds of a homestead, and because the affidavit for the attachment was not true.” Judgment was taken on default, execution issued, the premises in controversy levied upon; and the court, on motion of the defendants, vacated and set aside the said levy, and all proceedings had thereunder.
The plaintiff in error claims the action of the court below was erroneous, first, because the attachment was discharged, and, second, because the levy under the execution was vacated and set aside. We have examined the affidavits introduced on the hearing of the motion to discharge the attachment, and as they fully sustain the finding of the district court, “that the affidavit for the attachment was not true,” the ruling of the court in this respect was correct, although, as will be hereafter seen, we do not sustain all the reasons given therefor.
The more important question to be considered is, the action of the court in vacating the levy made under the execution on the property conveyed to Dacotah Skinner. We do not think it is competent for a defendant to move A court to discharge an attachment, or set aside a levy under an execution, on the ground that pr0per^y attached, or levied upon, does not belong to him. Langdon v. Conklin & Martin, 10 Ohio St, 439. To avoid the effect of this conclusion, the defendants call attention to the decision of this court of Franklin v. Colley, 10 Kas. 260, and insist, that as the conveyance was made by Gates to Dacotah Skinner as part of the consideration for the homestead of defendants, under their instructions, that the law implies a trust in favor of the latter parties, and that the daughter, so holding title to the premises levied upon, will be declared a trustee. Unfortunately for the position assumed by the defendants, the record is silent as to any agreement on the part of Dacotah to hold the land in trust for the defendants. ' She never agreed by parol, or otherwise, to re-convey the tracts in suit to the defendants, or to the person or persons with whom the defendants should trade the same for a homestead. It is true, she signed and acknowledged a deed by which she might have conveyed the land to Nichols; but the deed was never delivered, and hence it was the same as no deed. Section 6, of the act relating to trusts and powers, (Gen. Stat. 1868, p. 1097,) provides:
“When a conveyance for a valuable consideration is made to one person, and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections.” No facts are shown to bring the parties within the exceptions of sections 7 and 8, referred to in sec tion 6. The conveyance to Dacotah Skinner was absolute— was not only made with the full approval of defendants, but at their instance. No trust in favor of defendants is declared in the conveyance, nor is any agreement testified to by any witness on the part of Dacotah. The defendants, upon the facts in the record, under our statute as to implied and resulting trusts, have no interest in the land in the suit which could be legally enforced. The case of Franklin v. Colley, above cited, is not in point. It is undoubtedly true, that as the tracts of land were the proceeds of a homestead, Dacotah Skinner might successfully hold the same in opposition to the claims of the creditors of the defendants, but the law does not place her interests in the hands of volunteers, nor permit, in this case, the defendants to intervene in her behalf. .The court below committed error in sustaining the motion of the defendants to set aside the levy made upon the property of Dacotah Skinner by virtue of the execution issued against defendants.
The order of the district court setting aside the levy under the execution, is reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by defendants in error to recover certain moneys claimed to be due by virtue of an attorney’s lien under §8, page 110, of Gen. Stat., which reads: “An attorney has a lien for a general balance of compensation * * * upon money due to his client, and in the hands of the adverse party, in an action or proceeding in which the attorney was employed, from the time of giving notice of the lien to that party.”
Several questions arise which demand notice. It may be premised, that in examining authorities upon questions concerning attorneys’ liens, this fact should be borne in mind: In some places and at some times the compensation to be received by an attorney for hi's services was fixed ^ gj^ute, and this amount was awarded to the successful party to be recovered of his adversary in addition to the amount due upon the cause of action. This amount was taxed as costs in the case, and though nominally recoverable by the party himself was really for the benefit of the attorney. So also, in some states, New York for instance, where the compensation of the attorney is no longer fixed by statute, but left to the agreement of the attorney and his client, certain fixed sums are taxed as costs to be recovered by the successful party to be applied to the payment of his attorney. While in many states, our own for one, the successful party recovers nothing, either directly or indirectly, for the compensation of his attorney. Each party must bear the full burden of his own attorney’s fees. Manifestly, the comments and decisions upon attorneys’ liens must be materially affected by these considerations. Forsythe v. Beveridge, 52 Ill. 268; Ward v. Syme, 9 Howard Pr. Rep. 16. Eeferring now to the case before us, the first question we notice is this: Will the lien exist where the only claim of the plaintiff is one for damages for personal injury, unliquidated and undetermined by judgment or verdict ? In other words, may a defendant when sued in such an action, and before trial and verdict, settle with the plaintiff, pay him a certain amount, obtain a release and satisfaction of the claim, and thus free himself from all further liability either to the plaintiff or to his attorney, notwithstanding such attorney has prior to the settlement given notice of a claim for a lien, and such plaintiff is insolvent and irresponsible? This question must be answered in the negative. The lien will exist, and the defendant cannot thus defeat it. • It is unnecessary to inquire whether this would have been the rule independent of statute. This gives a lien not simply upon a judgment, but' upon “ money due.” It does not specify for what the money must be due, nor limit the lien to any particular class of liability or form of action. ■ Wherever an action is pending in which money is due, the attorney may establish his lien. And in an action, the verdict and judgment do not create the liability, do not make the “money due.” They are simply the conclusive evidence of the amount due from the commencement of the action.
Again, according to the statute the lien dates from the “time of giving notice.” Now in reference to this notice these questions arise: Must it be in writing? Is service upon the attorney-of-record of the adverse party' sufficient? In case a railroad corporation, upon what officer or agent should it be served? Must the amount of the lien claimed be stated? The statute is silent upon these questions; at least it gives no specific answer to them. And yet, taking the statute in connection with other statutes, and with general rules of law, we think the matters not difficult of solution. It is a general rule, though one with perhaps some exceptions, that notices required in legal proceedings must be in writing. This seems essential to the certainty and precision of such proceedings. Gilbert v. Columbia Turnpike Co., 3 Johns. Cases, 108; Miner v. Clark, 15 Wend. 428, dissenting opinion; Lane v. Cary, 19 Barb. 539; Pearson v. Lovejoy, 53 Barb. 407; Wright v. Doolittle, 5 Vt. 390. Now this notice may be fairly classed as one in legal proceedings. It is not to reach money due generally to the client, but money due in the particular action in which the attorney is employed. It presupposes therefore an action or proceeding, employment of the attorney giving the notice in such action or proceeding, money due in such action or proceeding to the party employing the attorney from his adversary, and is itself a proceeding to create a lien upon such money in favor of the attorney giving the notice, and is almost tantamount to a proceeding to compel an equitable assignment of a portion of a claim in suit. The attorney is to give notiee. By the notice thus given he seeks to create a lien upon and establish a right to receive a portion of the money due in that action to his client from the adverse party. * J
It seems to us, 7 .. that it is fairly to be taken as a notice in the action or proceeding, and one which therefore must be in writing. Being a notice in the action, it may properly be served upon the attorney-of-record; for outside of any statutory provisions, the attorney-of-record stands so far as the case is concerned as the representative of the party. He has charge of his interests, speaks for him, represents him in all the matters involved in the action. One of the- notices was served upon the person in charge of the defendant’s depot in North Lawrence. The writer of this opinion considers this a sufficient service upon the corporation, but his associates think differently. And the reasons for this conclusion are briefly these: Sec. 536 of the code of civil procedure, (Gen. Stat. 734,) which provides that “the service of a notice shall be made as is required by law for the service of a summons,” applies simply to the manner of service, that is, whether by reading, or giving a copy, and does not attempt to define upon whom the service may be made to bind the party. And ch. 123 of the Laws of 1871, which authorizes in certain cases the service of process upon railroad and stage corporations by delivery of a copy to a freight agent, ticket agent, person in charge of a depot, etc., applies only to process strictly so-called, or at least does not apply to notices like the one in question, a notice prepared and served by the party, and not issued by or upon the order or at the instance of the court. There is therefore no statute authorizing the service of such a notice upon this agent of the corporation, and it is not a matter at all within the scope of his duties. Hence, neither by statute nor upon general principles is the corporation bound by the notice thus given.
It is unnecessary that the amount claimed be stated in the notice. If the amount is stated, the attorney cannot thereafter c^a'm a larger amount, and the adverse party may make any' settlement with his client not inconsistent with his lien for the specified sum. Where the notice does not specify the amount, and does not claim a lien for anything more than the services in the given action,, the lien is secured for the amount agreed to be paid by the client, or, in the absence of any agreement, for the reasonable value of such services. Where the notice in terms claims a lien for services in addition to those rendered in the case, it is secured to the extent of the amount due the attorney from his client. Where after a judgment is rendered in the district court, a notice is served in which a lien is claimed “ on the judgment, and upon the moneys secured thereby,” and thereafter the judgment is reversed by the supreme court, it-is unnecessary to serve a new notice, but the lien is secured to the extent of the amount claimed and then due. Where a defendant prior to a trial settles the claim sued on, and obtains from the plaintiff a satisfaction and release in full, in which the receipt of a certain amount of money is stated as the consideration thereof, and presenting this release and satisfaction obtains a dismissal of the action, in an action thereafter brought by the plaintiff’s attorney to recover from the defendant for services in said action, and for which he had given notice of a lien, this release and satisfaction may be received as prima facie evidence of the amount paid to the plaintiff, and as an admission on the part of the defendant that such amount was due. Where notice of a lien is given, and before trial and judgment the parties- settle the case and the suit is dismissed, the attorney may maintain a separate action to recover the amount due upon his lien, and in such action the client is not a necessary party.
These we believe are all the material'questions in the case, and the conclusions reached upon them compel us to remand the case, with instructions to modify the judgment by striking out the amount allowed for the lien in the case of “Nichols & Kennedy.” In other respects the judgment will be affirmed. The costs of this court will be divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Parker, C. J.:
Plaintiff, Roger Riley, brought this action against the defendant, Mayrath Machinery Company, Inc., for actual wages and for penalty wages under the provisions of the Laws of 1911, Chapter 219, Sections 1 and 2, now G. S. 1949, 44-307 and 44-308.
The pleadings filed by the parties are of no importance on appellate review and all that need be said respecting them is that they raise all issues required for trial and disposition of the action.
The facts regarded as essential to a decision of what we deem is the all-decisive question involved on appellate review will be highly summarized and stated briefly in accord with our version of the import to be given the evidence of record material to its disposition.
Sections of the statute on which plaintiff relies for recovery read:
“It shall be unlawful for any firm or corporation employing labor within this state, to refuse or neglect to pay to any person leaving its service either by resignation or discharge any money due as wages within ten days from the termination of such services, and such payment must be made either at the place of discharge or at any office of such company or corporation within the state as may be designated by the party employed, he giving notice in writing, to the foreman or party in charge of such work. (44-307, supra.)
“Any corporation or firm failing or refusing to pay wages due to any person leaving their employment, as provided in section 1 [44-307] of this act, shall, as a penalty for violation thereof for such nonpayment continue to pay the wages of such servant or employee from the date of the discharge or resignation of said employee, at the same rate as if he was still in the service, until full and complete settlement is made: Provided, Such wages shall not continue for more than 60 days unless action for the recovery of the same shall have been commenced in any court of competent jurisdiction within that time. (44-308, supra.)”
The defendant is a Kansas corporation with its only office and place of business located in Dodge City. Its system of management is unique in that Martin Mayrath, who lives in Dallas, Texas, is the only boss and controls all details of operation in connection with the Dodge City plant by telephone from Dallas.
Except for one year plaintiff had been employed by defendant since 1947. March 9, 1961, he resigned his position and turned in his time sheets at the office.
Later, and on the day after the next regular payroll date, plaintiff went to the office and orally requested payment of his actual wages. This request was made to Mrs. Maiy Ann Sproat who was in charge of accounts payable and collecting, payrolls, trucks and foreign shipments. Due to differences between Mrs. Sproat and Plaintiff as to payment of such wages she refused to pay them.
Defendant had no foreman but, under the unusual circumstances involved, it may be said that Mrs. Sproat was in charge of defendant’s work on all dates in question.
On April 12, 1961, more than thirty-four days after plaintiff’s resignation, Douglas R. Myers, an attorney of Dodge City, wrote, and placed in the United States Mail, a letter which reads:
“April 12, 1961
“Mayrath Machinery Company, Inc.
“East Trail Street
“Dodge City, Kansas
“Gentlemen:
“I am writing with reference to Roger Riley, 901 Eighth Avenue, Dodge City, who left your employment on March 9, 1961. Mr. Riley advises that at this time he has accrued wages in the total amount of $151.20, which were due and payable on the regular payday of March 17, 1961.
“Mr. Riley advises that payment was refused until he had called Mr. Mayrath and discuss matters which were not made clear to Mr. Riley. Under the provisions of the General Statutes of Kansas, 44-307 and 308, you have no lawful reason to delay payment of all amounts due. This is to advise you that unless full payment is made on or before April 17, 1961, action will be taken to collect wages and statutory penalties.
“Very truly yours,
/s/ Douglas B. Myers”
The foregoing letter, addressed as above indicated, was received at the office of the corporation and after its receipt was channeled through to Mrs. Sproat who read it, subsequently she called Martin Mayrath on the telephone at Dallas who, after having the letter read to him, told her to explain it to George Gould, Jr., a Dodge City attorney, and turn the letter over to him.
Negotiations between the above mentioned attorneys failed to bring the parties to any agreement. Thereupon, and more than sixty days after the date of his resignation, plaintiff commenced the instant action.
Following joinder of issues by the pleadings, and after the parties had waived a jury trial, the case came on for trial by the district court. After hearing the evidence that tribunal rendered judgment against the defendant for $148.31 for actual wages due and $633.60 for penalty wages under G. S. 1949, 44-308.
Both parties have appealed from the judgment and from orders overruling their respective motions for a new trial.
At the outset it may be stated that due to admissions made by the parties, express, implied or otherwise, the all-important and decisive question raised by arguments advanced in the briefs is whether plaintiff is entitled to recover penalty wages in this action under the provisions of Laws of 1911, Chapter 219, Sections 1 and 2, now G. S. 1949, 44-307 and 44-308. Therefore, without more ado, we approve the trial court’s judgment as to actual wages and turn to the decisive issue. This, in final analysis, under the heretofore quoted sections of the statute, as well as our decisions, depends upon whether defendant’s notice, also quoted in toto, discloses compliance with the statutory requirements, imposed by the Legislature, as conditions precedent to the right to recover penalty wages in an action such as is here involved.
Strange as it may seem this court, since the enactment of Laws of 1911, Chapter 219, has been called upon to construe the force and effect to be given the provisions of that enactment in only five cases. The parties are in accord as to tihe number of our decisions dealing with the subject.
The first time the statute was here for construction was in Livingston v. Oil Co., (1923) 113 Kan. 702, 216 Pac. 296, where the court decided the statute was constitutional and mentioned, but did not decide the point as to the necessity of designating the place of payment. The next was in Southern Kan. Stage Lines v. Webb, (1935) 141 Kan. 476, 41 P. 2d 1025. That case involved a procedural snarl and there was no decision upon the merits. Neither case is of any help in solving the decisive issue here involved.
The same statute was before us in Hurt v. Edgell, (1938) 147 Kan. 234, 75 P. 2d 834. There, with respect to certain phases of the issue here involved, we said:
“It will be noted that the statute requires that a written notice and demand be made by the employee who has been discharged, stating where he wishes to have his wages paid, which he claims are due him. This appears to be a reasonable provision. . . . It is not alleged that the provision of the statute as to notice was complied with. We think a failure to comply with the positive provisions of the statute bars the claim of plaintiff as to the penalty.” (pp. 239 and 240.)
The next case where the court construed the statute is Gawthrop v. Missouri Pac. Rly. Co., (1938) 147 Kan. 756, 78 P. 2d 854, which, so far as here pertinent, states:
“Plaintiff is also met with the point that he did not give defendant any notice in writing of the place where the payment should be made. Such a notice is required before an employee may avail himself of the provisions of G. S. 1935, 44-307 and 44-308. (See Hurt v. Edgell, ante, page 234, 75 P. 2d 834.) . . .” (p. 758.)
The fifth occasion on which the court was called upon to construe the provisions of the statute in question is Brewer v. Kansas Electric Power Co., (1939) 148 Kan. 434, 83 P. 2d 103. There the facts and one issue, notwithstanding plaintiff’s inadvertent but nonetheless erroneous contention to the effect no notice of any kind was involved (See Abstracts and briefs [No. 33,944] on file in the State Library, 148 Kan. Vol. 18.), were quite similar to the facts and the decisive issue presented by the record in the instant case.
In the Brewer case this court held:
“The conditions prescribed in G. S. 1935, 44-307, are conditions precedent to the right to recover a penalty for the failure to pay wages as directed in G. S. 1935, 44-302, 44-308, and a failure to substantially comply with the former section, defeats the claim.” (Syl. ¶ 2.)
And in the opinion said:
“. . . The lawmakers have prescribed tire conditions under which the penalty may be imposed. Failure to comply with the statutory conditions defeats the claim. The conditions are few and practical. The demand must be in writing, addressed to the foreman or party in charge of the work, and it must designate as the place of payment one of the places named in the statute. (Hurt v. Edgell, . . .: Gawthrop v. Missouri Pac. Rly. Co., . . .) With these conditions precedent plaintiff failed to comply.” (p. 439.)
We are in accord with the rule announced in the Brewer case and adhere thereto.
Therefore — since it clearly appears from the record that the written demand on which plaintiff must rely in order to recover penalty wages under the provisions of the statute in question was fatally defective in at least two particulars, i. e., (1) was not ad dressed to the foreman or the person in charge of the work and (2) failed to designate as the place of payment one of the places named in the statute — we hold, (following Brewer v. Kansas Electric Power Co., supra), that the trial court erred in that portion of its judgment allowing plaintiff recovery of penalty wages.
Contentions advanced by plaintiff, to the effect that the construction given the statute by our former decisions does not conform to the intention and purpose of the legislature in enacting such statute, have been rejected not overlooked. In the first place, as heretofore indicated, we approve the rule announced in those decisions. In the next, we direct attention to the fact that such statute, as construed in the Brewer case, has remained the law of this state since 1938, more than twenty-four years, without modification or change by the legislature. Under such circumstances it is presumed that the construction, heretofore placed upon the statute by this court, conforms to the legislative intent and should not be changed. (See Rockhold v. Board of County Commissioners, 181 Kan. 1019, 1024, 317 P. 2d 490; Windle v. Wire, 179 Kan. 239, 242, 294 P. 2d 213; State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757 [Syl. ¶ 3.] 258 P. 2d 225.)
What has been heretofore stated and held means that the trial court’s action in allowing plaintiff judgment for actual wages with interest must be affirmed and the portion of its judgment awarding plaintiff penalty wages in any amount must be reversed. Pursuant to the authority conferred on this court and the provisions of G. S. 1949, 60-3706, all costs of this action are taxed to the defendant. It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This is a workmen’s compensation case. Claimant (appellant) Dickie Callahan, a 17-year-old youth, while employed by respondent (appellee) Martin K. Eby Construction Co., Inc. in connection with the work of putting up hay on a ranch owned by respondent, sustained an injury to his right eye resulting in industrial blindness.
The facts are as follows: During the day in question the hay baler broke down causing a stoppage in the work of the claimant and the other employees. Oracle Collins, respondent’s foreman, sent word to claimant and the other workmen that they could “knock off” work. Claimant, with two other employees, went to the house on the farm where they had slept the night before. While there, claimant went into a closet-type room adjacent to the sleeping room and found an aerosol-type can sitting on a shelf. Curious about what it contained, the claimant endeavored to open the can and in so doing sprayed some of the contents into his right eye. The can contained rust remover for use in laundering.
On review of the entire evidence the trial court found claimant’s injury did not arise out of and in the course of his employment and entered judgment for respondent, from which claimant appeals.
The question of whether the disability of a workman is due to an accident arising out of and in the course of his employment is a question of fact and when determined by the district court will not be disturbed by this court where there is substantial evidence to sustain it. (Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 185, 334 P. 2d 370; Kafka v. Edwards, 182 Kan. 568, 322 P. 2d 785, and cases cited therein.)
Under G. S. 1961 Supp., 44-556, the appellate jurisdiction of this court in compensation cases is confined to reviewing questions of law only. In doing so, it is necessary to determine whether the record contains any evidence which tends to support the judgment rendered, and in so considering, this court is required to review all testimony in the light most favorable to the prevailing party below. If, when so considered, the record contains any evidence which supports the trial court’s judgment, that judgment must be affirmed, this court being conscious at all times of the fact that we have little concern with disputed questions of fact in ordinary lawsuits and none whatever in compensation cases, except to ascertain whether the record contains any evidence which on any theory of credence justifies the trial court’s finding or conclusion of fact. (Allen v. Goodyear Tire & Rubber Co., supra; Rothman v. Globe Construction Co., 171 Kan. 572, 235 P. 2d 981; Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259; LaRue v. Sierra Petroleum Co., 183 Kan. 153, 325 P. 2d 59; Burton v. Western Iron and Foundry Co., 173 Kan. 506, 249 P. 2d 688.)
In view of what has been said, no useful purpose would be gained in narrating the evidence taken in the case. Suffice it to say, after a careful examination of the record we are convinced it discloses sufficient competent evidence on which the trial court, as was its province, could make such finding. Under the many decisions of this court such finding cannot be disturbed and compels an affirmance of the judgment. This, we may add, must be our conclusion under the established law of this jurisdiction even though, as claimant contends, there is evidence in the record, which, if the trial court had seen fit to give it credence, might have supported a finding to the contrary.
The judgment is affirmed and costs are taxed to the respondent.
Jackson and Fontron, JJ., not participating. | [
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The opinion, of the court was delivered by
Valentine, J.:
This was a criminal' prosecution for murder in the first degree. The defendants, Joseph W. McNutt and Arthur Winner, were duly charged by information of the county attorney with killing and murdering one W. W. Seiver, otherwise known as “Texas,” otherwise known as “Tex.” A separate trial was granted to the defendants, and Arthur Winner was tried, convicted, and sentenced, and he now appeals 'to this court. The county attorney prosecuted the action upon the theory that the defendants caused the death of said Seiver in pursuance of a previous conspiracy-entered into by them for the purpose of fraudulently procuring from the “Metropolitan Life Insurance Company” the sum of $5,000. Or in other words, the defendants, in pursuance of a previous design and arrangement, procured an insurance policy from said company on the life of said McNutt for the sum of $5,000, and then, in order to make it appear that McNutt had subsequently been killed by robbers, and thereby that the insurance money had become due, killed Seiver, under such circumstances, and burned his body in such a manner, as to lead people to believe that McNutt had been killed, and that the lifeless body of Seiver was that of McNutt. We believe that the theory of the prosecution is the true theory of the case, and that such theory was sufficiently substantiated by -the evidence introduced on the trial. We do not propose to discuss all the evidence however. It is voluminous and circumstantial, and composed of a vast num ber of minor facts -which when taken separately may not seem to be very important in the case, but which when taken together seem to prove the guilt of the defendant beyond all reasonable doubt. To discuss only a few of these minor facts, would seem to be useless; and to discuss the whole of them, would make this opinion entirely too voluminous. We would say however, that no theory has yet been advanced except that of the prosecution which can satisfactorily explain all of these minor facts. And we do not think that any reasonable theory can be advanced except that of the prosecution. Neither do we think it is necessary to discuss all the points made by the defendant in this court. The defendant has made twenty-eight principal points in this court, and by subdividing some of his principal points has made several other minor points. Now to discuss all of these points in detail would be very much like writing a treatise on criminal law. We have examined all of these points carefully, and have also examined carefully every portion of the record to which they are supposed to apply, and we do not find any ruling .or decision of the court below so materially erroneous as to require or authorize a reversal of the judgment. The only ruling upon which this court has at any time had any doubts was the admission of certain telegraphic dispatches in evidence. These dispatches are four in number, and as follows:
No. 1. “J. W. McNutt, 73 Main street, Wichita: O. K. Tex starts this Thursday a.m. No coat or boots.”
(Signed,) “Winner.”
No. 2. “A. Winner, Topeka,Kansas: No money come in. All paid out. Will write.” (Signed,) “ J. W. McNutt.”
No. 3. “December 22d, 1873. W. W. Seiver, care H. C. Copson, Topeka, Kansas: Come to-day without fail. Go to postoffice; letter for you.” (Signed,) “A. Winner.”
No. 4. “Topeka, December 23d, 1873. Winner: I leave' here this afternoon train.” (Signed,) “W. W. Seiver.”
The objections that the defendants urged in the court below against the admission of these dispatches were, first, “That defendant could not be bound by any dispatch sent by McNutt to him; second, that there is no proof that either of these dispatches was sent by either of the persons whose names are attached to them.” The court overruled these objections, and allowed the dispatches to be read to the jury, to be considered by them on condition that they found evidence that the dispatches purporting to be sent by Winner were actually sent by him. We shall now take up the dispatches in their order.
No. 1. The evidence shows that this dispatch was sent from Kansas City, Missouri, and actually received by McNutt at Wichita, Kansas, on December 18th 1873. The evidence also shows that Winner and Seiver (otherwise called “Tex”) were at Kansas City, and had a conversation with each other about that time. The evidence also shows that Seiver left Kansas City about the 18 th of December, and said he was going to Wichita. He however stopped at Topeka, Kansas, and stayed there until December 24th, the day before his alleged murder at Wichita. Winner started with Seiver from Kansas City. Whether he stopped at Topeka or not, we think the evidence does not show. He arrived at Wichita December 19th, 1873. Immediately after McNutt received said dispatch No. 1, he sent dispatch No. 2 to A. Winner, Topeka. Winner and McNutt were partners in the painting business, and their place of business was at Wichita. Seiver was also a painter by trade. The evidence also shows that Winner was previously to December 24th 1873, and up to that time, expecting Seiver to arrive at Wichita, and that the defendants had sent- money to him. Indeed, the evidence tends to show that Winner expected Seiver to accompany him from Kansas City to Wichita on December 18th and 19th, but that Sevier got off or was put off the train for some reason not shown by the evidence. We think that there is no other evidence tending to show that Winner sent said dispatch No. 1. In all probability he sent it. But even if he did not, still, it was received by McNutt, a co-conspirator, a partner in guilt as well as in business, and was received in furtherance of their common purposes and common designs, and therefore for that reason it was admissible in evidence. (1 Greenleaf Ev., §§111, 233, 197; Wharton’s Crina. Law, § 702, et seep) But even if it was not admissible in evidence, still every material fact which it tends to prove was incontestibly proved by other evidence, and therefore its admission in evidence was immaterial.
Dispatch No. 2. This dispatch was actually sent by McNutt, but whether it was ever received by Winner is not shown. It proves nothing that is material in the case however, and therefore it need not be further noticed.
Dispatch No. 3. This dispatch is numbered 4 in the record, It was actually sent from Wichita to Topeka on Deo. 24th 1873, although it is dated December 22d. There is no direct evidence showing that Winner sent it, or that Seiver received it; but in all probability both occurred. On that very same day, (December 24th,) Winner went to the office of the telegraph operator in Wichita three or four different times and asked for a dispatch from Seiver; and the telegraph operator testified that he (the operator) “asked for an answer several times before it came.” And finally it did come, and it was dispatch No. 4 as above given, (numbered 3 in the record.) Winner received said dispatch No. 4 as a dispatch from Seiver, and as the dispatch he was expecting. It was sent from Topeka to Wichita on December 24th, although it is dated December 23d. At that time Seiver was in Topeka, and probably sent the dispatch.
Dispatch No. 4. We have already stated about all that is necessary concerning this dispatch. There is no direct evidence that Seiver sent it. But it must be presumed that he did, for Winner received and accepted it as a dispatch from Seiver, and as the dispatch that he (Winner) was expecting. The evidence also shows that Seiver on that same day, December 24th, was in Topeka, and there bade a friend “goodbye,” and said he was going to Wichita. And he has never since been seen or heard of in Topeka or elsewhere.
We think the dispatch was properly admitted in evidence. The theory of the prosecution is, that when Seiver arrived at Wichita, which was about midnight between December 24th and 25th, the defendants immediately took him to their rooms and there stupefied him with whisky and laudanum, and then set the building on fire and burned him to death, and so burned his body that it was past recognition; that McNutt immediately left the state, and went to an obscure village in Ray county, Missouri, and there shaved off' all his whiskers, colored his hair, and changed his name, so as to avoid recognition; that Winner remained at Wichita, attempting to make people believe that McNutt and himself were alone in their rooms on that night, that they were then and there attacked by robbers, that he (Winner) was badly injured, and McNutt killed, and that the lifeless body of Seiver found in said burning building was that of McNutt.
We think this theory of the prosecution was sufficiently proved on the trial. All these things were done in accordance with and in furtherance of the original conspiracy and design of McNutt and Winner, and therefore each was responsible for the same. Seiver was probably one of the most suitable persons that could have been found for their nefarious purpose. He was a drunken, worthless fellow, who could probably be easily induced to drink whisky and laudanum. He was without family or property, and was likely to cause as little inquiry as that of almost any other person that could have been found. The defendant claims that the evidence was not sufficient to prove that the body found in the burning building was that of Seiver. Now if it was not that of Seiver, whose body was it ? Every particle of the evidence that had any application to the question tended to prove that it was the body of Seiver; and not a particle of the evidence tended to prove-that it was the body of any other person. The judgment of the court below must be affirmed; and in affirming the judgment we think we decide the following among other questions, these being the most important questions in the case: 1st, A judgment will not be reversed for immaterial error, not even in a criminal case, nor where the defendant is under sentence for murder in the first degree. 2d, The acts and declarations of one co-conspirator in fur therance of the principal object and design of the conspiracy, may be shown in evidence against each of the conspirators. 3d, Where a party has treated certain acts and declarations purporting to be those of a particular third person as though the same were in fact the acts and declarations of such third person, and where such acts and declarations would be competent evidence provided they were in fact the acts and declarations of such third person, the same'may be introduced in evidence/against said party and be treated as the acts and declarations of such third party, unless other evidence is introduced showing the contrary. 4th, Ordinarily when the acts and declarations of one co-conspirator are offered in evidence as against another co-conspirator, the conspiracy itself should first be established prima facie, and to the satisfaction of the judge of the court trying the cause. But this cannot always be required. It cannot well be required where the proof of the conspiracy depends upon a vast amount of circumstantial evidence — a vast number of isolated and independent facts. And in any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial taken together shows that such a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before, or after, the introduction of such acts and declarations. 5th, Where a person seems -to be preparing to leave a certain place and does in fact leave, but before he leaves bids a friend good-bye and says he is going to a certain other place, these acts and declarations may be given in evidence, along with other evidence, as tending to show that such person did in fact go to such other place, although the party against whom they are introduced was not present at the time the acts were performed or the declarations-made. (1 Greenleaf Ev., § 108.) The declaration of Seiver that, he was going to Wichita, was in the nature of a verbal act, and is explanatory of the other acts, and is a part of the res gestee. 6th, In a criminal case, and even in murder in the first degree, the corpus delicti may be proved by circumstantial evidence. We think this is all that is necessary. We might take up the points made by defendant and answer them seriatim, thus: First: A defendant in a criminal case may be arraigned and tried at a special term of court. Second: It is not error to refuse a change of venue where the preponderance of the evidence introduced on the application sustains the ruling of the court. Third: It is not error to refuse a continuance asked for on account of the absence of evidence, where the applicant has exercised no diligence to procure his evidence. But we do not think it is necessary to proceed further.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was brought for the purpose of marshaling the assets of the estate of Allen Crocker, deceased, and of applying such assets to the payment of the debts of the estate in such manner as to be most advantageous to the interests of those creditors of the estate (of whom the plaintiff is one) who have no specific liens or other security for the payment of their claims. The plaintiff’s petition sets forth in effect the following facts: 1st, The plaintiff, Colby, has a claim against said estate for $800 for money loaned to the deceased in his lifetime, which claim has been allowed by the probate court, but such claim is not secured in any' manner, by lien or otherwise. 2d, The defendant Gay has two claims against said estate, one for $2,500, and the other for $1,000, each secured by a mortgage on real property. Said mortgages are liens upon the following property, to-wit — first, the homestead which was occupied by the decedent and his family during the decedent’s lifetime, and by his family since his death; second, a piece of land sold and conveyed by the decedent and his wife after the execution of said mortgages, and before the decedent’s death; third, other real property belonging to the estate, and upon which there are no other liens or incumbrances. There is still other property real and personal belonging to said estate not covered by said mortgages, a or by any other liens or incumbrances. The said Gay is about to commence proceedings to enforce his said mortgage liens. 3d, The defendants Crockers, who are the widow and children of said decedent, occupy a portion of said mortgaged property as their homestead, and their homestead right, in this particular case, is inferior and subject to said mortgage liens, but is not subject to any other express lien, incumbrance, or adverse right. 4th, The defendant LaRue has a judgment against said estate for $1,400, which judgment is a lien upon all the real property belonging to said estate except that portion of said real property which is occupied by the family of the deceased as a homestead, and is also a lien upon that piece of land which was sold and conveyed to defendant Geo. W. W elch; but said judgment-lien is inferior to said mortgage-liens. 5th, Defendant Geo. W. Welch did, as before stated, during the lifetime of the deceased, purchase from the decedent and his wife and procured a conveyance from them for a portion of the decedent’s real property, which portion of real property was then and is now subject to both said mortgage and said judgment-liens; but it is not subject to any other express lien or incumbrance. 6th, All the heirs, and the administrator of said estate, are made parties defendant in this action. 7th, The estate is insolveht, and unable to pay all its creditors in full; or, at least, this is so, unless said homestead, and said property sold and conveyed to Welch, is used in paying the debts of the estate. The .plaintiff then prays that the defendant Gay be compelled to exhaust, first, that portion of said real property occupied as a homestead in payment of his said mortgage-liens before resorting to any other property ' belonging to the estate; that the defendant LaRue be compelled to exhaust, first, said real property sold and conveyed to sa¡id Welch in payment of his judgment-lien, before resorting to any other property belonging to the estate, and that the administrator in the meantime be restrained from paying said mortgage-liens or judgment-lien from the proceeds of any property except said homestead, and said property sold to Welch.
Defendants Mrs. Crocker, Mary Welch, and Geo. W. Welch, demurred to said petition, on nearly all the grounds authorized by the code; and the court below sustained the demurrer on the ground that the said petition did not state facts sufficient to constitute a cause of action. This is the only ruling of the court below complained of in this court. We think that the ruling of the court below was correct. It is true, as a general principle or rule of law, as administered in courts of equity, that where- a person has a lien upon two or more funds to secure the payment of a debt, on one of which funds another person has a similar lien, equity will require such first-meutioned person^ to satisfy his lien, so far as he can, from those funds on which the other person -has no claim, even though one or more of the funds charged may be realty and the others personalty. But this rule has its exceptions and limitations. Judge Story says, that “it is never applied except where it can be done without injustice to the creditor, or other party in interest having title to the double fund, and also without injustice to the common debtor. Nor is it' applied in favor of persons who are not common creditors of the same common debtor, except upon some special equity.” (1 Story’s Eq.- Jur., § 560.) And Chancellor Green says, that “it will never be applied where it is injurious to a third party over whom the party claiming the benefit of the principle has no superior equity.” M. B. & L. Association v. Conover, 14 N. J. Ch. (1 McCart.) 220,225. And Mr.. Adams says, that “the equity is a personal one against the debtor, and does not bind the paramount creditor, nor the debtor's alienee for value. The equity is not binding on the paramount creditor, for no equity can be created against him by the fact that some one else has taken an imperfect security. But it is an equity against the debtor himself, that the accidental resort of the paramount creditor to the doubly-charged estate, and the consequent exhaustion of that security, shall not enable him to get back the second estate, discharged of both debts. If, therefore, the paramount creditor resorts to the doubly-charged estate, the puisne creditor will be substituted to his rights, and will be satisfied out of the other fund to the extent to which his own may be exhausted. And it seems that'he may, on proposing just terms, require the paramount creditor to proceed1 against the estate on which he has himself no claim. His right however to do this is not an independent equity against the creditor, but a mere incident of bis equity against their common debtor.” (Adams Equity, 272.)
Now for the purposes of this case, we will suppose that the plaintiff would have a right to maintain this action as against all the defendants except Crockers, as the occupiers of said homestead, and except Welch, the owner of a portion of the land sought to be marshaled among the assets of the estate. It would not seem that the estate, _ . n . , . ¶ the common debtor, would have any right to object to such an action. Nor would it seem that LaRue, as administrator, or the Crockers and Mary Welch, as heirs, would have any such right; nor Gay, nor LaRue, as common creditors of the estate, for as to them all their rights and interests could be amply protected. But as to the Crockers, as occupiers of the homestead, and as to George W. Welch, the owner of said land, the question is different. The plaintiff’s equity could not be enforced as against any of the defendants without turning the Crockers out of house and home, and depriving Welch of his land. Now what superior eqjiity has the plaintiff over the Crockers, or -over Welch? By our constitution and statutes the most sedulous care has been manifested to secure the homestead of the debtor and to his wife and family, as against all debts not expressly charged upon it. ' As was said in the' case of Monroe v. May, (9 Kas. 476,) “the homestead is something toward which the eye of the creditor need never be turned. It is an element which may never enter into his calculations .in his efforts to collect his debt. He may as well ignore that, as he does now (except in cases of fraud) the body of the debtor.” It would certainly be against the spirit if not against the very letter of our homestead laws to hold, that when a husband and wife give a specific lien upon their homestead to secure the payment of some specific debt, they thereby make such specific lien a general security for the payment of all their debts, present and future, so long as such specific debt remains unpaid. The homestead-exemption laws provide in effect that the homestead shall be exempt from all debts except for purchase-money, taxes, improvements, and liens given by the consent of both husband and wife. Now the plaintiff’s claim does not fall within any of these exceptions. It is not for purchase-money, nor taxes, nor improvements; and the decedent and his wife never contemplated giving the plaintiff a lien on their homestead. They never supposed they were making their homestead security for the plaintiff’s claim. And the plaintiff has no right, either in law or equity, to make it a security either directly or indirectly for the payment of his claim. The plaintiff does not seem to claim in this court that he can maintain this action as against Welch. He does not seem to claim that he has any equity concerning Welch’s land superior to Welch’s rights. And therefore he cannot expect to recover as against Welch. We think that the rights of the Crockers to their homestead, and of Welch to his land, are superior to the plaintiff’s equity, and therefore that the plaintiff cannot recover in this action.
The judgment of the court below must therefore be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting in the. case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a written guaranty for the payment of a certain promissory note. The action was commenced and first tried in a justice’s court. It was then taken on appeal to the district court, where it was again tried. This second trial was before the court alone, a jury having been waived. After all the evidence was introduced on the trial, but. before any finding was made by the court, the defendants below (plaintiffs in error) requested the court to state in writing its conclusions of fact found, separately from its conclusions .of law. This the court refused, and then found generally in favor of the plaintiff below, and ordered that judgment be rendered accordingly for the sum of $166.56, to all of which the defendants' duly excepted. The defendants then made said request again, this time making it in a more formal and elaborate manner than before, and the court again refused, and the defendants again excepted. The defendants then in a very formal manner presented to the court seventeen written conclusions of fact, and one written conclusion of law, and requested the court to adopt them, or to adopt any part or portion thereof which the court might think proper; but the court wholly refused, and refused to even entertain the defendants’ request, and the defendants again excepted. The court then rendered judgment in favor of the plaintiff and against the defendants for $166.56, and costs, and the defendant again excepted. The defendants, within proper time, made a motion for a new trial, upon various grounds, one at least of which grounds would include the said supposed errors of the court in refusing to find separately and specially, which motion the court overruled, and the defendants again excepted. Defendants now, as plaintiffs in error, present said supposed errors of the court below to this court, and ask that the judgment of the court below shall be reversed because of such errors. The court below certainly erred in refusing to make said separate conclusions of fact, and conclusions of law, and' for such error we think the judgment rendered in the case must be reversed. Section 290 of the civil code provides as follows :
“Upon the trial of questions of fact by the,court, it shall not .be necessary for the court to state its finding, except generally, for the plaintiff or defendant, unless one of the parties request it with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state, in writing, the conclusions of fact found, separately from the conclusions of law.” (Gen. Stat. 684.)
, That the right of a party to have the court make separate conclusions of fact and of law is a substantial right, we would refer to the following cases: Major v. Major, 2 Kas. 337; Lacy v. Dunn, 5 Kas. 567; Shelton v. Dunn, 6 Kas. 132, 133; Ulrich v. Ulrich, 8 Kas. 402, 409; St. L. & C. Rly. Co. v. Piper, 13 Kas. 505; Gest v. Kenner’s Adm’r, 7 Ohio St. 75; C. & T. Rld. Co. v. Johnson, 10 Ohio St. 591; And that a judgment should be reversed for a refusal to grant such right, see, Russell v. Armador, 2 Cal. 305; Hoagland v. Clary, 2 Cal. 474; Brown v. Brown, 3 Cal. 111; Lee v. Marsh,(19 Mich. 11; Stancell v. Corning, 21 Mich. 242; Evans v. Kappes, 10 Iowa, 586; Ogden v. Glidden, 9 Wis. 47. This court has held, under the laws of 1870, (page 173; §7,) that it was substantial error for the court to refuse to direct the jury to find a special verdict when requested so to do by either party. (L. L. & G. Rld. Co. v. Rice, 10 Kas. 426, 435; Bush v. Peake, 14 Kas. 290; National Bank v. Peck, 8 Kas. 665.) And this court has also held, under the laws of 1874, (pages 140,141, §1,) that it was substantial error for the court to refuse to direct the jury to find upon particular questions of fact in addition to their general verdict, when requested so. to do by either party. (Bent v. Philbrick, 16 Kas. 190.) And.we think the court committed substantial error in this case by refusing to make special findings of fact and of law, as requested by the defendants below. Of course, the court is not bound to make special findings concerning immaterial facts; nor is the court bound to find the material facts in. any greater detail than is really necessary for the correct decision, by a higher court, of the questions of law involved in the case. (McCandliss v. Kelsey, 16 Kas. 557; and cases applying to verdicts — National Bank v. Peck, 8 Kas. 661; City of Wyandotte v. White, 13 Kas. 190, 196; Bent v. Philbrick, 16 Kas. 190.) And of course, where the court attempts to make special findings, as requested by a party, and inadvertently fails to make a special finding upon some particular matter in controversy, or makes such finding in too general terms, the court does not thereby commit substantial error, unless its attention is first called to the omission to find, or to the defective finding, and it then fails or refuses to correct the same.-(See cases with respect to verdicts, which are analogous; Hazard Powder Co. v. Viergutz, 6 Kas. 471; Arthur v. Wallace, 8 Kas. 267; Copeland v. Majors, 9 Kas. 104; K. P. Rly. Co. v. Pointer, 14 Kas. 51, 52; Carlin v. Donegan, 15 Kas. 496.)
The judgment of the court below in this case is reversed, and cause remanded for a new trial.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on two promissory notes, and a mortgage. The only questions however involved in the case are such as arise in connection with the second note set forth in the plaintiff's petition. This note was given by Elisha Hadden to ¥m. D. Sanders for the sum of $72, and made payable to said Sanders or order. The action was commenced by John L. Rodkey, defendant in error, plaintiff below. Rodkey alleged in his petition below, among other things, that, “ before the note last aforesaid became due and payable, the plaintiff, for a valuable and lawful consideration, became the owner and holder of the same, * * * and is now the owner and holder of said note.” But he did not allege in his petition or elsewhere that the note had ever been indorsed to himself, or to any one else, and the copy of the note given by him does not show that it had ever been indorsed. The defendant below in his answer admits the execution of the note, but does not admit or deny that the plaintiff below was the owner or holder thereof. In legal contemplation therefore the defendant admitted that the plaintiff was the owner and holder of the note, but he did not admit that the note had ever been indorsed. The defendant also alleged in his answer, among other things, that said note was given wholly and entirely for usurious interest, and that the plaintiff had full knowledge of such fact. The plaintiff in reply to the answer filed a general denial’. Upon these pleadings the parties proceeded to trial, before a jury. The plaintiff in his own behalf testified that he purchased said note of W. C. Woodman without any knowledge that it had been given for usurious interest; but when he so purchased it, whether before or after maturity, or what authority Woodman had to sell it, or to transfer it, the evidence does not show. There was no evidence introduced or offered tending directly to show whether said note had ever been indorsed or not. The circumstances however would seem to indicate that the note had not been indorsed. The plaintiff never saw the note. The defendant’s evidence showed that said note was given wholly for usurious interest, but there was no evidence introduced or offered tending to show that the plaintiff had any knowledge of such fact. The defendant rested, and the plaintiff then demurred to the defendant’s • evidence. The court below sustained the demurrer, and discharged the jury, and then rendered judgment in favor of the plaintiff and against the defendant for the-full amount of said note. Was this ruling of the court below erroneous? We think it was. For, while under the pleadings, and the evidence, we must assume that the beneficial interest in the note was in some way transferred from the payee, Sanders, by the third person, Woodman, to the plaintiff Rodlrey, yet we cannot assume that the note was transferred by indorsement so as to render it free from all outstanding equities which might be set up against it. There is no pretense that the record shows that the note was transferred by indorsement. And unless it was so transferred before due, the defendant has a right to set up his defense of usury, or any other defense which he may have. (McCrum v. Corby, 11 Kas. 465, 470.) If said note was in fact indorsed, the plaintiff should have alleged it either in his petition, as one of the facts constituting his cause of action, and giving such cause of action a more extended and comprehensive scope, or in his reply, as one of the facts defeating any previously existing defense set up by the defendant. The indorsement of the note is not a fact constituting any part of the defendant’s defense, and it has no connection therewith. The only connec tion it has with the case is with the plaintiff’s cause of action, being in fact the starting point, the foundation thereof, and enlarging and extending its operation and effectiveness. Therefore, if the plaintiff in such a case should desire the benefit that an indorsement of the note would give him, he should plead and prove such indorsement. Otherwise the defendant may set up and prove any defense that he may have to the note.
The judgment of the court below must be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the -court was delivered by
Brewer, J.:
This action was tried and judgment rendered in favor of the plaintiff upon a petition, of which the material allegations are as follows:
“The plaintiff, Jerome Kunkel, complains of the said Kansas Pacific Eailway Company, the defendant herein, for that the said defendant was, on August 18th 1869, and from that time till now has been, a common carrier of, and in the business of carrying, passengers on its railroad, in the state of Kansas, in the county of Jefferson, for pay; that on said 18th of August 1869, the said defendant undertook and promised to carry this plaintiff from the city of Topeka, in the county of Shawnee, in said state of Kansas, to the town of Medina, in said Jefferson county, for the sum of one dollar, which said sum was then and there duly paid to the said defendant by this plaintiff, and this plaintiff went on board the car or carriage of the said defendant, on and under and by virtue of said agreement, and was conveyed in said carriage from the said city of Topeka eastwardly towards said town of Medina; but, in violation of its said contract and agreement, the said defendant refused to stop its said carriage for this plaintiff to get down at said town of Medina, but carried this plaintiff past the said town of Medina, and ordered and directed this plaintiff to get down from said carriage more than a mile from said town of Medina, where there was no regular stopping-place or station for passengers to get on or off the train, and ho platform or other convenience to step on; and when this plaintiff attempted to dismount from the said carriage, in obedience to the said order and direction of the said defendant, the said defendant, without notice to this plaintiff, violently and suddenly started their said carriage and with great force threw this plaintiff down from the said carriage to the ground, and wounded, bruised and beat him, this plaintiff, and greatly injured him by said wounds and bruises; of which injuries the plaintiff has not yet recovered, to the damage of this plaintiff in the sum of five thousand dollars.”
Several questions are presented; and first, it is alleged that the court erred in permitting -an amendment of the petition, and in not sustaining an objection of the defendant to the proposed amendment. The petition as originally filed was substantially and almost word for word identical with that we have quoted, except that the fare alleged to -have been paid was three dollars, and the date of the transaction was given as “March 20th 1869.” When the case was called for trial, objection was made to the introduction of any testimony, and the cause of action stated in the petition being apparently barred by the statute of limitations, the objection was sustained. Leave was granted to amend, and the present petition was filed over the objection of the defendant. By this the injüry was alleged to have been received at a date less than three years before the filing of the petition, and therefore it disclosed a cause of action not barred. Was this error? On the trial the plaintiff testified to receiving his injuries on the 17th or 18th of August 1869; and a witness who was with him at the same time testified to the matter as happening in August 1869; and each testified to paying one dollar, the usual fare from Topeka to Medina. Now the amendment of pleadings is largely within the discretion of the trial court, and there must be something to indicate that such discretion has been abused before a reversal will be ordered because of the granting of leave to amend; Taylor v. Clendenning, 4 Kas. 524; Davis v. Wilson, 11 Kas. 74.
It certainly is no abuse of discre^ion permit the correction of a date; Wilson v. Phillips, 8 Kas. 211. And this it seems is all that the amendment amounted to. Counsel labor ingeniously to show that a cause of action not barred was, by the amendment, substituted for one barred; but we are not convinced by their reasoning. It is affirmatively shown that plaintiff was injured, as claimed, in August. It does not appear that he was ever so injured before; and there is surely no presumption that the defendant ever wronged the plaintiff twice in the same place, and under like circumstances.
A second position of counsel is, that the cause of action is not one arising from contract, but is founded upon tort, and that therefore it was barred any way, even if August instead of March was the time of the injury. This claim cannot be sustained. While the distinction between actions on contract and those for tort is plain and broad, yet, as is well said in the case of Staley v. Jameson, 46 Ind. 159, on which counsel mainly rely, and in which is quite a full discussion of the question, it is not always easy to determine from the allegations of the petition in which class the action must be placed; for contracts are often alleged in actions which clearly sound in tort, and as often tortious acts and conduct of the defendant are averred in actions purely ex eontraetu. And often the plaintiff has his election upon the same state of facts, whether to bring an action ex eontraetu, or one ex delicto. Here the pleader alleges that the defendant was a common carrier, that it made a certain contract of carriage, and received its pay therefor, and then alleges that defendant broke said contract, and how it broke it. True, in showing how defendant broke the contract it discloses wrongful acts done by defendant; but still the manifest gist of the action is the breach of the contract, and the tortious acts are simply the manner of the breach. The case was trie.d in the district court upon the theory that it was an action ex eontraetu, and the first briefs of the learned counsel were prepared upon the same understanding; and this was correct.
A further complaint is, that the court refused to give this* instruction:
“7. It is the duty of the jury to reconcile, if possible, the-testimony of witnesses, so as to make them all testify truly but if in this cause there is an irreconcilable conflict in th& testimony of witnesses, and plaintiff is in conflict with the-testimony of disinterested witnesses, the law rather presumes that the plaintiff has been influenced by his interests to speak untruly, and that the disinterested witnesses are entitled to the confldence of the jury. Disinterested witnesses are entitled'to more credit than interested witnesses.”
The court had at the instance of the defendant already given this instruction:
“ 6. The plaintiff is an interested witness in this cause. He is interested in the whole amount of any possible recovery, and in' all the costs in the cause. His credibility is directly in question. Interested witnesses may be more readily suspected of prevaricating, or even testifying falsely in their own behalf, than witnesses who have no interest in the cause.”
It had also in its general charge given the law in substantially the same language. In this we see no error. The' court properly called attention to the plaintiff’s . , -ii/v> r»i. * . . interest, and the effect of such interest upon his-credibility; and that was as far as it was under any obligation to go. It was not for it to say directly, or by manifest implication, that it was the duty of the jury to believe one witness rather than another. Matters affecting the credibility of a witness are proper testimony, and may properly be noticed — indeed, ought to be noticed by a court in its charge. But care must be taken that these matters are not laid down in the form of such imperative rules as to extort a. verdict which is not in accord with the honest belief of the jury. Tell a juror that he ought to believe a disinterested rather than an interested witness, naming him, and he may return a verdict to say so, when in fact he honestly and sincerely believes the other way, and upon all the circumstances justly does so. It is the jury, and not the court, whose province it is to determine the credibility of a witness, to believe or disbelieve him; and it is the actual belief which. is sought to be obtained. Hence, instructions which make it matter of law to disbelieve, are wrong. Shellabarger v. Nafus 15 Kas. 547. So also, instructions whose apparent purpose and tendency are to compel belief, or disbelief, are erroneous; and generally any unnecessary repetitions or specializations in instructions which seem to manifest an insisting by the court on the belief or disbelief of a witness should be avoided. We do not decide that the instruction refused is of itself too strong, op that it would in every case be error to give such an instruction. But we do hold that having given at the instance of the defendant the law as stated in the 6 th instruction, it was not error to refuse to repeat it in the strong and positive terms of instruction No. 7.
A final error complained of is, that the verdict is against the evidence. The case comes clearly within the rule so often declared by this court, that where there is clear and positive testimony sustaining every essential fact, and the verdict has received the approval of the trial court, this court ^ rr 7 w}]p n0£ interfere, even though the testimony seems to greatly preponderate the other way. In other words, in cases brought here on error from a trial upon oral testimony, this court is not a trier of questions of fact. We might therefore simply rest this opinion upon the statement, that the plaintiff’s testimony positively and clearly shows all the facts necessary to sustain the verdict; that it is in most of the principal matters positively corroborated by one who appears to be an entirely disinterested witness, and as to the matter in which it is chiefly contradicted receives strong support from another witness also apparently disinterested. But as counsel earnestly challenge the rule, we may be pardoned if we tarry a moment or two upon it. And first, we may remark, that it is a rule uniformly recognized from the first existence of this court down to the present time. In the very first volume of Kansas Eeports, in Backus v. Clark, p. 303, the court reversed a judgment because against the evidence, taking pains to say that it did so because there was a total failure of proof upon one essential fact, and that when there was such a total failure a question of law was presented calling for the action of the reviewing court. The implication was very clear. ’ The doctrine has been affirmatively announced time and again, since then, and in almost every volume of the reports. See among others: Bayer v. Cockerill, 3 Kas. 294; Ermul v. Kullok, 3 Kas. 499; U. P. Rly. Co. v. Convers, 4 Kas. 206; Blair v. Fields, 5 Kas. 58; Rose v. Williams, 5 Kas. 488; Pacific Rld. Co. v. Nash, 7 Kas. 280; School District v. Griner, 8 Kas. 224; Ulrich v. Ulrich, 8 Kas. 402; Ruth v. Ford, 9 Kas. 17; Luke v. Johnnycake, 9 Kas. 519; K. P. Rly. Co. v. Montelle, 10 Kas. 126; St. Jos. & D. C. Rld. Co. v. Chase, 11 Kas. 47; Brewster v. Hall, 12 Kas. 161; A. T. & S. F. Rld. Co. v. Stanford, 12 Kas. 354; Bridge Co. v. Murphy, 13 Kas. 40; K. P. Rly. Co. v. Salmon, 14 Kas. 528. In the early case of Ermul v. Kullok, 3 Kas. 501, Chief Justice Crozier says: “It is a well-established rule of. this court,- that the verdict of a jury will not be disturbed if there is any testimony to sustain it.” The rule has not at any time been stated in stronger language by any member of this court. Nor is this court the only or the first court to announce this doctrine. In Rogers v. King, 12 Ga. 233, the supreme court say: “ If there was any evidence to justify the verdict, we would not disturb it.” And the same proposition was sustained in Alfred v. The State, 6 Ga. 483; Lewis v. Long, 20 Ga. 568. The supreme court of Arkansas used this language: “There not being a total want or failure of evidence to sustain the verdict, this court affirms the judgment;” Bennett v. The State, 13 Ark. 694. And again, “Though the verdict of a jury be contrary to the judgment of the appellate court, it will not be set aside unless there is a total want of evidence to sustain it;” McDaniel v. Parks, 19 Ark. 671. See also Mains v. The State, 13 Ark. 285; Lindsay v. Wayland, 17 Ark. 385; Hill v. Jayne, 18 Ark. 396; M. & St. F. Plank Road Co. v. Bauere, 21 Ark. 306. In California, the supreme court thus lays down the rule: “The appellate court will not disturb the verdict when there is any evidence to support it;” Escolle v. Merle, 9 Cal. 94. In Illi nois we find, “The court will rarely if ever disturb a verdict when there is anything in the record tending to support the finding of the jury;” Young v. Silkwood, 11 Ill. 36; Gallup v. Smith, 24 Ill. 586. In Indiana, “A new trial will not be granted where the evidence is conflicting, if there is enough in the record taken by itself to sustain the verdict;” Scobey v. Armington, 5 Ind. 514. In Missouri, “When the verdict of a jury comes here indorsed by the refusal of the court which tried the cause to grant a new trial, this court will not interfere on the ground that the evidence does not support the verdict. Jurors are the appropriate judges of the facts, as the courts are of the law;” State v. Anderson, 19 Mo. 246. And again, “The refusal of a court to grant a new trial where a motion is based on alleged absence of any testimony to warrant a verdict, is not error, unless the preponderance of evidence against the verdict is so strong as to raise a presumption of prejudice, corruption or gross ignorance on the part of the jury;” Price v. Evans, 49 Mo. 396. In Kentucky, “This court will not reverse on the ground that the verdict sustained by the inferior court was contrary to evidence where there was any evidence conducing to maintain it;” Bagby v. Lewis, Adm’x, 2 T. B. Monroe, 76. In Tennessee, “The court of errors will not grant a new trial if there be any proof by which the verdict can be sustained;” Dodge v. Brittain, Meigs, 84. And again, “ It is a well-settled rule of practice in the supreme court, that in civil cases a verdict will not be disturbed if there be any evidence to support it, however unsatisfactory that evidence may appear by the record;” McKinney v. Craig, 4 Sneed, 577. In New Hampshire, “ Where there is evidence competent to be considered by a jury, and the court submit it for their decision, the verdict will not be set aside, although the court may be of opinion that the evidence was insufficient to prove the fact;” Wendell v. Moulton, 26 N. H. (6 Foster) 41. In Michigan, in a case taken by certiorari from a justice of the peace to the circuit court, “ If there was evidence before the justice to prove every fact necessary to sustain the judg ment, the. circuit court cannot reverse it, however much it may be dissatisfied with' the conclusion of the justice or the jury. A-ll it can do is to inquire whether there was a total want of evidence before the justice to prove some fact that should have been proved to sustain the action;” Welch v. Bogg, 12 Mich. 43. In New York, “The verdict of a jury cannot be interfered with except when the evidence is wholly insufficient to sustain the verdict;” Colt v. Road Co., 33 N. Y. Superior Ct. 189. In Iowa, “Always refusing to interfere when there is evidence upon which the verdict finds reasonable support, even when if sitting as jurors we would without hesitation have found the other way upon the evidence;” Carlin v. Road Co., 37 Iowa, 323. But it is useless to multiply citations. Scores and scores of cases can be found in which similar language has' been used by appellate courts. And it must be conceded it is also equally true, that there are multitudes of cases in which appellate courts have reversed the judgment of lower tribunals because contrary to the evidence, and in which they have said that while there is simply a conflict in the testimony, yet it is apparent that the verdict or finding was clearly against the weight of the evidence, and manifestly unjust, and therefore it was their duty to set it aside. All that we design by these citations, and it will be noticed that they are nearly all from the earlier reports of the several states, is to show, that in this rule of decision we have been guilty of no “innovation;” we have discovered no new thing, but are simply walking super antiguas vias. Into a discussion of the wisdom of the rule, we do not now care to enter. It has been commented on time and again in opinions filed by this court; and while it may sometimes result in injustice, yet we are confident a different rule would tend to far greater injustice and wrong. TestL mony on phper, is-not like testimony from the lips; and when twelve jurymen who hear the living voice, and see the man who utters it, believe one witness and disbelieve four, and the judge who.^has the same opportunities of judgment declares that he thinks that they ought to have so believed and disbelieved, it seems very like trifling with the sacredness of jury trials for us who know nothing but the written story of what was said and done, and that story too often imperfect and incomplete, to decide that all this is wrong, and that jury and judge ought to have believed and found the other way. But counsel contend that trial judges in this state imagine the same rule governs their action as ours. We do not positively know how this may be. Two of our number have had experience °as trial judges, and never so understood the law; and we have yet to meet a district judge who has so expressed his understanding thereof. The functions of the two are widely dissimilar. The one has the same opportunity as the jury for forming a just estimate of the credence to be placed in the various witnesses, and if it appears to him that the jury have found against the weight of the evidence it is his imperative duty to set the verdict aside. We do no,t mean that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their .province to. settle questions of fact; and when the evidence is nearly balanced, or is such that different minds would naturally and fairly come, to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment might incline him the other way. In other words, the finding of the jury is to be upheld by him as.against any mere doubts of its correctness. But when his judgment tells him that, it is wrong, that whether from mistake, or prejudice, or other cause, the jury have erred, and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting aside the verdict, and remanding the question to another jury. It was a fear, in view of the meagerness of the testimony, that this duty had not. been fully recognized, that drew from this court the expressions it used in the two cases which counsel especially criticise. Whenever on the other hand a case reaches this court upon the record, ■ and it appears that the trial court has, by overruling' a motion for a new trial, approved of the verdict, it is and .must be taken as its certificate that the verdict is either fully in accord with its belief upon the testimony, or else that there was such a fair and reasonable doubt as to the weight of the evidence, pro and eon, that honest and intelligent minds might fairly differ in their conclusions, and that therefore the verdict of the jury should be accepted as just. We have therefore, not the witnesses, but the finding of the jury prima fade right, and also the approval of the only judge who has anything like full opportunities of knowing whether it was right. Under those circumstances it should be a very clear case before a reviewing court should interfere. The due administration of the law demands, and in the long run the most satisfactory and the most complete justice will be secured by leaving the settlement of questions of fact to the tribunals which see and hear the witnesses.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Wesley McLaughlin, and Adelaide H. McLaughlin, administratrix of the estate of Johnson B. McLaughlin deceased, to vacate a certain judgment previously rendered against said Wesley and said Johnson B. on a forfeited recognizance previously executed by said Johnson B. as principal, and said Wesley McLaughlin and one William A. Keith as sureties. (For additional facts concerning said judgment and said recognizance, see McLaughlin v. The State, 10 Kas. 582.) The only thing set forth in the plaintiff’s petition as a foundation for their cause of action, or rather as a ground upon which they asked to have said judgment vacated, was, that prior to the rendition of said judgment said Johnson B. McLaughlin had died. Johnson B. died August 30th 1872. Said judgment was rendered November 19th 1872. Adelaide H. was appointed administratrix March 31st 1873; and this suit to vacate said judgment was commenced May 26th 1874. The state demurred to said petition, on the ground that it did not state facts sufficient to constitute a cause of action, and the court below sustained the demurrer as to Wesley, but overruled the same as to Adelaide H., administratrix. Wesley now brings the case to this court, and assigns for error the ruling of the court below on said demurrer. We think however the ruling of the court below was correct. It must be remembered that the only ground assigned for the vacation of said judgment was the death of said Johnson B. McLaughlin. There is no claim that Wesley. McLaughlin did not know of said death at the time it occurred. There is no claim that he did not have ample evidence to prove said death at the time said judgment was rendered. And there is no claim that he ever exercised the slightest diligence to avoid the rendition of said judgment. The petition below is wholly silent upon these matters. From anything that appears in the record, Wesley McLaughlin could just as well have set up and proved said death as a defense to the action on the recognizance as he can now set it up and prove it as a ground for vacating said judgment. Wesley McLaughlin however founds his right of action upon a certain statute which reads as follows:
“Section 568. The district .court shall have power to vacate or modify its own judgments or orders, at or after the term at which such-judgment or order was made; * * * Sixth, For the death of one of the parties before the judgment in the action.” (Gen. Stat. 742, 743.)
Now this statute evidently applies to the judgment as rendered against Johnson B. McLaughlin, for as to that judgment the state and said Johnson B. were the parties, and one of such parties was dead at the time of the rendition of the judgment. But does the statute apply to the judgment as rendered against Wesley McLaughlin? We hardly think it does. As to that judgment both of the parties — the state, and said Wesley — were still in existence at the time that said judgment was rendered, and capable of suing and being sued, and capable of having judgment rendered for and against them. In this state a valid judgment may be rendered against any one or more of the several parties to a recognizance. In this state all joint contracts are also several. (Gen. Stat. 183, §1.) And in all cases of joint obligations or joint assumptions suits may be brought and prosecuted against any one or more of those who are liable. (Gen. Stat. 183, §4; id. page 637, §39.) Judgments may be rendered against any one or more of those who are sued; (Gen. Stat. 704, §396.) And the property of any one or more of those against whom judgments are rendered may be taken in execution for the satisfaction of such judgments. Hence it does not follow, that because a judgment may be void as to one joint contractor, or one joint obligor, or one joint recognizor, it is void as to all. Nor does it follow that because a judgment may be vacated as to one of such joint contractors, obligors, or recognizors, it may be vacated as to all. The judgment in all such cases is a several judgment as between the plaintiff and each of the several defendants, although a satisfaction of' the judgment as to one of the defendants would be a satisfaction as to all. It is claimed that the death of the principal recognizor at any time before final judgment is rendered, is a good defense for the surety on any action brought against him on the recognizance. We have assumed this to be true, although we do not now wish to be understood as deciding the question. Section 149 of the criminal code, (Gen. Stat. 843,) is an argument in favor of its correctness, while the following statutes are rather the other way: Gen, Stat. 183, §3; id. page 708, § 421; id. page 844, § 155. The case of Woolfolk v. The State, 10 Ind. 532, .is also in favor of the correctness of said claim of the plaintiff in error,Wesley McLaughlin. But assuming that such claim is correct, how can it help the plaintiff in error in this case? Where a defendant has a good defense to an action which he could easily interpose before judgment, if he should choose to do so, but he does not so choose, may he afterward be heard to interpose such defense? Or, even if he should choose to interpose the defense, and the court should rule against him, would his proper remedy be to wait over a year and a half and then commence an action to vacate the judgment? The judgment rendered against Johnson B. McLaughlin should not be considered as an element in the proceeding to vacate the j udgment against Wesley McLaughlin at all. This case, so far as it applies to Wesley McLaughlin, should be considered as though Wesley McLaughlin had been the sole defendant in the action on the recognizance; that Johnson B. McLaughlin had died before judgment was rendered against Wesley; that Wesley knew of such death in time to have interposed the same in his own defense, if he had chosen to do so, but that he did not choose to do so, and allowed judgment to be rendered against him. Now upon this state of facts, will an.action lie in his favor to vacate said judgment? We hardly think it will. The rule is, that if a defendant has a defense to an action, and knows it, he must set it up in that action, or he loses it; and about the only exceptions to this rule are where he has been prevented from setting it up by the fraud of the other party, or by some unavoidable casualty or misfortune. None of these exceptions intervened in this case.
The judgment and order of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Schroeder, J.:
These consolidated actions were filed to recover taxes paid under protest as provided in G. S. 1949, 79-2005.
Case Nos. 43,475 and 43,476 cover the first half and the last half, respectively, of the ad valorem taxes paid under protest for the year 1960. Case Nos. 43,477 and 43,478 cover the first half and the last half, respectively, of the ad valorem taxes paid under protest for the year 1961. The properties in question are oil and gas leases owned by the appellants and situated in Rice County, Kansas.
Appeals have been duly perfected from the orders of the trial court upholding the validity of the property assessments.
The Board of County Commissioners of Rice County and Marie Ecker, the County Treasurer of Rice County (appellees) have cross-appealed from orders of the trial court overruling their motions to dismiss the above actions on the ground they were not commenced within thirty days after the filing of the appellants’ protest as required by G. S. 1949, 79-2005.
The parties have stipulated that the decision of this court on appeal in Case No. 43,475 will control the decision in each of the other cases, since identical questions are presented in each case.
If the trial court erred in overruling the appellees’ motion to dismiss the action in each case, the court does not reach the merits of the appeal itself. We shall, therefore, consider the cross appeal first.
In Case No. 43,475 the appellants paid the first half of the 1960 taxes to the County Treasurer of Rice County under protest on December 20, 1960. (It was stipulated the protest was properly prepared and filed, and that proper notice of protest was given the parties, all as required by 79-2005, supra.) Upon request of the appellants the clerk of the district court of Rice County returned to her office about 6:30 p. m. on January 19, 1961, and received the petition of the appellants. It may therefore be said the petition was filed on the 30th day after the payment of taxes under protest. On January 20, 1961, the summons was prepared and the clerk’s signature and seal affixed thereto. The summons was delivered to the sheriff of Rice County on January 20, 1961. This was the 31st day after the payment of taxes under protest.
In each of the other actions a similar pattern was followed. The petition was filed after usual business hours with the clerk, either at her office or at her home, on the 30th day after the payment of taxes under protest, and on the following day the summons was prepared and delivered to the sheriff.
Further discussion herein will be confined to Case No. 43,475, and our decision will control disposition of the other consolidated cases.
The appellants call our attention to the fact that the appellees’ motion to dismiss was not raised until the day of trial, and that the appellees did not request nor were they granted leave to amend their pleadings. They state the failure to commence the action within thirty days was not affirmatively pleaded by the appellees, and, therefore, was not properly before the court. By reason thereof, it is argued, the motion to dismiss was properly overruled.
The appellants rely on die proposition that unless a petition affirmatively shows on its face the cause of action relied on is barred by the statute of limitations, no demurrer lies and the bar of the statute must be pleaded to be available as a defense. (Beachy v. Jones, 108 Kan. 236, 195 Pac. 184; Klotz v. Board of County Commissioners, 176 Kan. 325, 270 P. 2d 281; Russell v. American Rock Crusher Co., 181 Kan. 891, 317 P. 2d 847; Rex v. Warner, 183 Kan. 763, 332 P. 2d 572; and Fisher v. Pendleton, 184 Kan. 322, 336 P. 2d 472, 74 A. L. R. 2d 1274.)
For reasons hereafter stated, we do not think the foregoing cases are applicable to the facts and circumstances presented by the cross appeal.
In an action of this nature any right of the appellants to a refund of taxes paid under protest must be found in the provisions of G. S. 1949, 79-2005. The portion of the statute material herein reads:
. . (2) Every taxpayer protesting the payment of taxes, within thirty days after filing his protest shall either commence an action for the recovery thereof in some court of competent jurisdiction, or, file an application with the state commission of revenue and taxation for a hearing on the validity of such protest. . .
Here we are not concerned with the provision authorizing the taxpayer to file an application with the state commission of revenue and taxation for a hearing on the validity of such protest, because the appellants have not elected to pursue this alternative procedure. The provisions here applicable not only create a right which the taxpayer must exercise within thirty days, but also authorize the taxpayer to bring a suit against the state within the limited time stated.
It has been held the consent of a state to be sued, as expressed by an act of the legislature, should be strictly construed so as not to enlarge by judicial interpretation the privilege granted. (American Mut. Liability Ins. Co. v. State Highway Comm., 146 Kan. 239, 244, 69 P. 2d 1091; and Phillips v. State Highway Comm., 148 Kan. 702, 705, 84 P. 2d 927.)
Another rule of law applicable to the statute presently under consideration is that tax statutes will not be exended by implication beyond the clear import of the language used, and their operation will not be enlarged so as to include matters not specifically embraced. (Equitable Life Assurance Society v. Hobbs, 154 Kan. 1, 13, 114 P. 2d 871.)
The limitation period for cases filed under 79-2005, supra, which is a tax statute, is not strictly the same as the statute of limitations which applies to other cases. Under the tax statute, strictly construed, the action must be commenced “within thirty days” or the right dissipates. There can be no tolling of the limitation period in 79-2005, supra. To permit a taxpayer to commence an action to recover taxes paid under protest thirty-one days or more after filing his protest would grant the taxpayer a right not given by 79-2005, supra.
Procedurally, the question of a trial courts jurisdiction to hear an action is properly raised by a motion to dismiss. (Elam v. Bruenger, 165 Kan. 31, 193 P. 2d 225; and Schafer v. Kansas Soya Products Co., 187 Kan. 590, 594, 358 P. 2d 737.)
By their motion to dismiss the appellees have raised a question which they contend is jurisdictional, asserting that the appellants' action was not commenced within the time required by the statute, and by reason thereof the trial court did not have jurisdiction of the subject matter.
Was the action commenced within thirty days after the filing of the appellants’ protest?
G. S. 1949, 60-301 provides: “A civil action may be commenced in a court of record by filing in the office of the cleric of the proper court a petition, and causing a summons to be issued thereon.”
G. S. 1949, 60-308 provides in part: “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, . . .”
While language in some of the cases may be confusing as to when an action is deemed to have been commenced, we think construction of the foregoing statutes has been clearly stated in several cases. In C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 42 Kan. 223, 21 Pac. 1071, the following language was used:
“. . . Although actual jurisdiction of a defendant cannot be obtained without service of summons or original process upon him, nor until the service is actually made, yet when the service is actually made the case must then be considered as having been commenced at the date of the process served upon the defendant; [citations] and, by relation, the date of such process will determine the time from which the right of the court to take jurisdiction to hear and determine the case, must be computed. . . .” (p.227.)
This language was quoted in Vann v. Railway Co., 110 Kan. 799, 205, Pac. 607, and in Goertz v. Goertz, 190 Kan. 75, 80, 372 P. 2d 268.
A recent decision of this court is Redfearn v. Bronson Mutual Telephone Co., 189 Kan. 105, 367 P. 2d 76, where the court said:
“Thus we come to the all-decisive question involved, mindful as we do so that in this case the record makes it appear, in fact the parties concede, that on the day the district court made its order appointing a receiver no summons had been caused to be issued on the petition. Under these circumstances can it be said or successfully argued the order appointing the receiver was made at or after the commencement of the action? We are convinced a negative answer to this question is required by the clear and unequivocal provisions of G. S. 1949, 60-301, which we pause here to emphasize is also a part of our code of civil procedure. It reads: “ ‘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.’ and by the numerous decisions of this court — listed in the Annotations immediately following 60-301, supra, as it appears in the statutes — holding that an action is commenced when a petition is filed and a summons is issued thereon.” (pp. 106, 107.) (Emphasis added.)
On the facts presently confronting the court the petition of the appellants was filed on the 30th day and the summons was issued on the 31st day after the payment of taxes under protest. Applying the substance of what has been said in the construction of 60-301 and 60-308, supra, the action was not commenced until the 31st day. Here it is conceded the summons was properly served upon the appellees within the requisite time. The action is therefore deemed to have been commenced on the date the summons was issued— January 20, 1961, the 31st day after the payment of taxes and the filing of the taxpayers’ protest.
Since the instant action was not commenced until the 31st day after the payment of taxes under protest, we hold the trial court did not acquire jurisdiction. The provisions of 79-2005, supra, gave the appellants a right to commence an action against the state within thirty days after filing their protest. The right of the appellants to commence an action within thirty days expired prior to the appellants’ exercise of such right, and by reason thereof the trial court did not have jurisdiction of the subject matter.
Jurisdiction of the subject matter is a question which can be raised at any stage of the proceedings. Furthermore, it is the duty of a court to raise such jurisdictional question if the parties fail to do so. (Vrooman Co. v. Summer, 110 Kan. 662, 205 Pac. 609; Kelly v. Grimshaw, 161 Kan. 253, 167 P. 2d 627; In re Estate of Dix, 161 Kan. 364, 168 P. 2d 537; Klepikow v. Wilson, 189 Kan. 66, 366 P. 2d 800; and Wycoff v. Board of County Commissioners, 189 Kan. 557, 370 P. 2d 138.)
It follows that the trial court erred in not sustaining the motion of the appellees to dismiss the action.
As to the cross appeal the judgment of the lower court is reversed with directions to dismiss the action.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment of the district court approving an order of the State Corporation Commission which denied the application of the Missouri Pacific Railroad Company and the Railway Express Agency, Inc., to operate the station at Stilwell, Kansas as a non-agency station.
The application to dispense with the agency at Stilwell stated in part:
“Said station and agency at Stilwell is 16.66 miles from applicants’ agency at Dodson, Missouri to the east thereof and 19.61 miles from applicants’ agency at Paola, Kansas to the west thereof and business now handled at Stilwell can be properly and more reasonably handled from said stations and agencies at Dodson, Missouri and Paola, Kansas and other stations. Almost all of the business at said agency at Stilwell consists of carload shipments, the only other business being a very small number of inbound 1. c. 1. shipments; and all of said carload shipments, both outbound and inbound, are shipments by and to Dannen Feed Company, of Redel, Kansas, which is 4.71 miles from said station at Stilwell and only 11.95 miles from applicants’ said station and agency at Dodson, Missouri, and the operators of said Dannen Feed Company have advised applicants that their shipments can be handled just as well and as conveniently to them through applicants’ agency at Dodson, Missouri, and that they are agreeable to their shipments being so handled and that they will not object to or oppose applicants’ application to discontinue their said agency at Stilwell.
“Public convenience and necessity do not require the continued maintenance and operation by applicants of a railroad or express station and agency or the employment of an agent or representative at Stilwell nor the rendering of express service thereat and the same should be discontinued in the interest of efficient and economical management and service.”
The facts as disclosed by the evidence will be summarized.
Stilwell, Kansas is a community of 159 people and has only two principal businesses. The agency there now handles the railroad business for the stations at the towns of Redel and Bucyrus, Kansas. These are two non-agency points on the railroad, five miles north and south respectively from Stilwell. In the event the Stilwell agency is discontinued, the agency at Dodson, Missouri, which is 16.6 miles north of Stilwell, will handle the business now handled at Stilwell, including the non-agency business handled by Stilwell for Redel and Bucyrus. The shippers could also use the railroad’s agency at Paola, which is 19.6 miles south of Stilwell. There is no passenger service at either of the three points. The freight service is furnished by a tri-weekly train. The business at Stilwell consists mostly of less-than-carload lots which is small in quantity. There is a small amount of carload business. The business handled by the Stilwell agency for Redel and Bucyrus consists only of carload business. There is a telephone in each of the stations at Dodson, Paola and Stilwell. Shippers and consignees of freight may call either of those agencies concerning any railroad business and the railroad will pay the toll charges.
The manner of handling shipments through the Dodson and Paola agents made or received by the residents of Stilwell, Redel and Bucyrus, if Stilwell is discontinued, will be the same as the present handling by the Stilwell agent except that telephone calls will be at the expense of the railroad. The station building at Stilwell will be left unlocked for 1. c. 1. shipments.
During the past six years preceding the application, the cost of operating the agency at Stilwell exceeded the revenue from incoming and outgoing business at the Stilwell station by three to four thousand dollars per year. If the revenue from the incoming and outgoing business at the towns of Redel and Bucyrus were credited to the Stilwell station, the revenue would be in excess of the expense of the station. The agent at the Stilwell station is occupied but one or two horns each day in performing his duties.
The representatives of the railroad contacted the principal shippers which might be affected by the dispensation of the agency at Stilwell and received no objection. The only protestant that appeared at the hearing was a salesman for the Brown Shoe Company. He stated that he received four or five express shipments of sample shoes from his company each year and returned them about three times a year.
The Commisssion, after considering the evidence, found:
"That public convenience and necessity requires the maintenance and operation of a station and agency at Stilwell, Johnson County Kansas.”
The applicants in due course filed their petition for review in the district court. The reviewing court found the order of the commission to be lawful and reasonable and sustained it.
The applicant has appealed contending that the record contains no evidence to support a finding that public convenience and necessity require the operation of the Stilwell station as an agency station, and the Commission’s order is therefore unreasonable.
After a careful examination of the record, we are forced to agree with appellant as to the absence of evidence to support a finding of public convenience and necessity.
It is not contended that public necessity requires an agent at the Stilwell station. It is conceded that stations at Redel and Bucyrus can be operated as conveniently by the agency at Dodson as at Stilwell.
We find no evidence of public inconvenience to the shippers at Stilwell by dispensing with the agency at that point. The two principal shippers expressed no inconvenience or opposition to dispensing with the agency. The only protestant that appeared at the hearing was a Brown Shoe Company salesman who received four or five shipments of sample shoes each year and returned them about three times a year.
Public convenience, as the term is used in the public utility act, means the convenience of the public, not the convenience of an individual doing a very limited business. The operation of a service requiring a substantial expenditure cannot be justified by a showing that the service has been convenient to a single individual. This is a well established principle of law applicable to public utility regulation. (Ill. Central R. R. v. Commerce Com., 399 Ill. 67, 77 N. E. 2d 180; Arizona, Corporation Com'n v. Southern Pacific Co., 87 Ariz. 310, 350 P. 2d 765; Chicago, B. & Q. R. R. Co. v. Drayton, 172 Neb. 321, 109 N. W. 2d 369; Alabama Public Serv. Com'n v. Western Ry. of Ala., 264 Ala. 619, 89 So. 2d 64; Illinois Central R. Co. v. Louisiana Public Serv. Com'n, 240 La. 769, 125 So. 2d 159; Utilities Com. v. R. R., 233 N. C. 365, 64 S. E. 2d 272; Atchison, T. & S. F. R. Co. v. State, 189 Okla. 485, 118 P. 2d 202, and W. M. Ry. Co. v. Pub. Ser. Comm., 144 W. Va. 110, 106 S. E. 2d 923.)
In the absence of public convenience or necessity the maintenance of an agency primarily involves a question of business policy with which the commission should not interfere.
The briefs devote much space to a discussion as to whether the Stilwell station is operating at a loss or a profit. The controversy involves the questions of considering allocated expense as well as the direct expense of operation of the station, and whether the business at the Redel and Bucyrus stations should be credited to the Stilwell station. The issues in this case do not require a consideration of loss or profit. Any unnecessary expenditure results in an economic loss. It is the function of the commission to aid in the elimination of unnecessary expenditures, not to perpetrate them. In the absence of any question of convenience and necessity, the manner or method of rendering service should be left to the discretion of the management without interference by the Commission.
The Commission, in its presentation to this court, makes no attempt to justify its finding that public convenience and necessity requires the maintenance and operation of a station and agency at Stilwell.
Other than its contentions that the station at Stilwell is operating at a profit if allocated expenses are disregarded and the business at the Redel and Bucyrus stations are credited to the Stilwell station, a contention which we have passed as unnecessary to the determination of the case, the Commission contends:
“The Missouri Pacific is required to provide the necessary station facilities within the state of Kansas to meet the convenience and necessity of Kansas shippers. The applicant cannot lawfully meet this responsibility by providing facilities at Dodson, Missouri. This responsibility cannot be fulfilled if the agency dealing with Kansas shippers is located beyond the territorial limits of the state of Kansas. The State Corporation Commission of Kansas would have no standing to appear before the Public Service Commission of Missouri to oppose tire closing of the station at Dodson and the transferring of its facilities to a point further east on the Missouri Pacific Lines.
“G. S. 1949, 66-187 provides in part:
“ ‘It shall be the duty of every railroad company or other common carrier, doing business within the state of Kansas, to construct and maintain proper freight depots and freight terminal facilities upon its lines of railroad in the state of Kansas, and within the limits thereof, at such cities or places as shall be designed by the corporation commission of the state of Kansas, and within the time specified by the order of said commission.’ (Emphasis supplied.)”
It should first be noted that the statutory provision relied on by the Commission which was enacted in 1905, was abrogated by the comprehensive public utility act of 1911. (G. S. 1949, 66-101, et seq.)
The act of 1905 contained a mandatory requirement that freight depots be maintained at such cities and places in the state as the Commission should designate. No measure of reasonableness for the designation was provided. Relief was available only in the form of mandamus or injunction. Under the public utility act of 1911 the question of what facilities will be reasonably adequate are questions of fact to be determined after an investigation.
In State, ex rel., v. Railway Co., 117 Kan. 86, 230 Pac. 333, this court, in considering a statute enacted in 1905, relating to stopping passenger trains and building passenger depots in certain cities, stated at page 87 of the opinion:
“The question, therefore, is whether the statute of 1905 is inconsistent with the public utilities act of 1911.
“By the public utilities act regulation of public utilities was provided for in a comprehensive scheme, which included regulation of railroads. Before that the subject had been in a state of nebulosity, with a sort of nucleus in the form of a board of railroad commissioners. Generally, railroads were regulated by legislative fiat, enforceable by fine and by issuance of mandatory writs. Development of the modern method of regulation is sketched in the opinions in The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 150 Pac. 544, and Telephone Association v. Telephone Co., 107 Kan. 169, 173, 190 Pac. 747. The conclusion reached in the latter case was that any controversy which naturally falls within tifie scope of the jurisdiction of the public utilities commission must be adjusted by that tribunal.
“The statute of 1905 is inconsistent with the public utilities act in several respects. The standard of regulation in the public utilities act is the lawful, practical standard of efficient and sufficient service. . . .”
A similar conclusion was reached in Missouri-Kansas-Texas Rld. Co. v. Standard Industries, Inc., 192 Kan. 381, 388 P. 2d 632 recently decided.
The Commission s fear that it will lose jurisdiction to require the appellant to furnish necessary facilities for shippers at the towns of Redel, Bucyrus and Stilwell is not well founded. If changed conditions require additional service at either of the towns, the Commission has ample authority to require it. The authority to require reasonably efficient and sufficient service is granted by the provisions of G. S. 1949, 66-107 which reads in part:
“Every common carrier and public utility governed by the provisions of this act shall be required to furnish reasonably efficient and sufficient service, joint service and facilities for the use of any and all products or services rendered, furnished, supplied or produced by such public utility or common carrier. . . .”
The Commission may order improvements in public service or facilities at any time when public convenience and necessity so demand.
The Commission appears to recognize its general authority. It states in its brief:
“In Norfork & W. R. Co. v. Public Service Com., 265 U. S. 70, 68 L. ed. 904, the Supreme Court held that a state in the exercise of its police power either directly or through an authorized commission may require railroads to provide reasonably adequate and suitable facilities for the convenience of the communities served by them. The Court said:
“ ‘Railroad carriers may be compelled by state legislation to establish stations at proper places for the convenience of their patrons. Minneapolis & St. L. R. Co. v. Minnesota, 193 U. S. 53, 63, 48 L. ed. 613, 618, 24 Sup. Ct. Rep. 396. Any measure promulgated by the state to require a railroad company to provide suitable facilities reasonably necessary for the removal from its premises of freight carried by it for its customers does not create a new duty or impose any unnecessary burden.’ ”
A careful examination of the record forces us to conclude that the Commissions order denying the appellant the right to dispense with its agent at the Stilwell station is unreasonable.
The judgment of the district court is reversed with instructions to set aside the Commission s order.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fontron, J.:
On September 26, 1961, Common School District No. 28, the appellee herein, condemned certain real estate, consisting of four lots and a house in Tonganoxie, owned by Ida F. Love, the appellant. Mrs. Love appealed from the appraisers’ award and, upon trial to a jury, a verdict was returned for $11,500.00. From this judgment and from the order overruling her motion for a new trial, Mrs. Love has appealed, alleging error in the admission of certain evidence and in the giving of one instruction. For convenience, the appellant will be referred to as plaintiff and the appellee as defendant.
The evidence of which complaint is made is found in the testimony of one Louis Higgins, who was employed in the Leavenworth County Assessor’s office as county real estate appraiser. Mr. Higgins, who was the sole witness used by the defendant at the trial, was permitted to testify, over strenuous objection by plaintiff’s counsel, as to the “market value” placed on plaintiff’s property in 1958, for taxation purposes, by E. T. Wilkins and Associates, an appraisal firm of Lincoln, Nebraska. Reading from cards on file in his office, Higgins, over objection, testified that the valuation established on plaintiff’s house by the Wilkins firm was $5,233.00 and the value put on each of the four lots was $480.00 (making a total of $7,153.00), and further testified that he (Higgins) computed the assessed valuation at S0% of those amounts.
Mr. Higgins was commendably frank in admitting that he, himself, had not written the figures on the cards; that he had never owned or sold real estate in Tonganoxie; that he does not try to know the values of real estate in Tonganoxie; that he had never been in the house until after it was moved; and did not know, of his own knowledge, what the market value of the Love property would be.
At the conclusion of Higgins’ testimony, plaintiff’s counsel renewed his objections and moved to strike the entire testimony of the witness from the record. This motion was overruled.
It may be noted here, that when the motion for new trial was heard, counsel for defendant was permitted, again over objection, to produce Higgins as a witness who, at this time, testified in somewhat greater detail as to the methods allegedly used by the Wilkins firm in making the appraisal. At this time, also, the cards which Higgins used at the trial were marked and admitted in evidence, over plaintiff’s objection. This somewhat unorthodox procedure has no material bearing on the questions presented in this appeal, and hence will be ignored.
The testimony of the witness Higgins relating to the market value of plaintiff’s property was clearly hearsay, for it was not based on any facts within his personal knowledge. The figures to which he testified were but the opinions of an unnamed employee of the Wilkins firm, now apparently deceased, who was not available for cross-examination either as to his credibility or as to the methods used and the factors considered by him in arriving at his opinions.
Higgins’ testimony was admitted on the theory, urged by the defendant both at the trial and on this appeal, that the cards containing the appraisal figures were public records. However, the rule relating to the admissibility of official documents does not abrogate the prohibition against hearsay evidence. In Vol. 3, Jones on Evidence [Fifth Ed.], § 544, p. 1059, the rule is stated:
“As an exception to the hearsay rule the common law doctrine of admissibility of official records limits the admissibility to those matters as to which the official could testify if he were testifying as a witness. In other words only his recorded statements based on his personal knowledge are admissible.”
The rule as to opinions contained in public documents is stated in 32 C. J. S., Evidence, §637, p. 490, in the following language:
“In so far as documents set forth the mere opinions or conclusions of public officials, they are inadmissible as official records or documents, . . .”
And, in 32 C. J. S., Evidence, § 644, p. 509, this statement of the law is found:
“. . . A public record is not, however, evidence of matters incidentally noted therein, or not properly belonging in the record, nor may a report embodying conclusions of public officers be admitted as evidence of facts. . .
In 20 Am. Jur., Evidence, § 1026, p. 866, the following rule is set forth:
“. . . Tax books or lists are admissible to show the mere listing of land for taxation and the assessments of taxes levied upon the property and their validity, but not as a general rule to prove the value of the land. . . .”
It occurs to us that the testimony of Mr. Higgins violates all these principles. Not only were the figures inscribed on the cards simply opinion and conclusions, but they were not even those of a public official. Furthermore, the figures were established for use in determining assessed values for taxation purposes by a party not present at the trial or available for cross-examination.
The importance of cross-examination in a case such as this was stressed in the concurring opinion of Justice Schroeder in Cline v. Kansas Gas & Electric Company, 182 Kan. 155, 318 P. 2d 1000, where he said: “. . . Only by permitting cross examination of witnesses to the fullest extent in a condemnation action can a jury be in any position to determine the probative value of opinion testimony. . . .” (p. 163.)
The defendant cites Hamilton v. Railway Co., 95 Kan. 353, 148 Pac. 648, to support the admissibility of Higgins’ testimony. That decision, however, is not controlling under the facts present here. In that case, an assessor was permitted to testify that he assessed the land in controversy at a certain valuation. In affirming the lower court’s judgment this court pointed out that the assessor had made the assessment under oath, pursuant to the law réquiring that land be assessed at its true value in money, to be determined from actual view and inspection; that had the assessor been asked to give his opinion of value, he would have been properly permitted to give it; and that in permitting him to testify as to the value fixed by him in his assessment, instead of giving his opinion of value, “the error, if any there was, . . . does not seem to be sufficient to cause a reversal of the judgment.” (p. 355)
In the instant case the assessor, Higgins, had not personally appraised plaintiffs property nor was he the person whose opinion was admitted; that individual was neither present nor available for cross-examination. In addition, the assessed valuation was concededly not the true money value of plaintiffs property.
It must be concluded that Higgins’ testimony, hearsay as it was in character, was erroneously admitted.
His testimony was improperly admitted for another reason. The date of the condemnation of plaintiffs property was September 26, 1961, while the Wilkins’ appraisal was made in 1958. It has long been the rule that land taken by condemnation is to be valued as of the date of the taking. In Wier v. St. L., Ft. S. & W. Rld. Co., 40 Kan. 130, 19 Pac. 316, the court said: “. . . The general current of authorities is that in all such cases (of condemnation) compensation should be ascertained and assessed as of the time when the property was taken. . . .” (p. 140)
For other cases applying the rule, see C. B. U. P. Rld. Co., v. Andrews, 26 Kan. 702; Emery v. Riverside Drainage District, 132 Kan. 98, 294 Pac. 888; Steck v. City of Wichita, 179 Kan. 305, 295 P. 2d 1068.
This principle is too well established to require further elaboration. It is sufficient to say that evidence of the value of plaintiffs property in 1958 would not be competent to establish its value in 1961 under the circumstances of this case, where improvements to plaintiffs property had been added after 1958, and where there was a total lack of evidence by means of which its value in 1958 could be compared with its value in 1961.
The plaintiff also assigns as error the giving of Instruction No. 15, which reads:
“In this case there has been testimony as to the valuation placed upon the property in question in this case in 1958 for tax purposes by an appraiser employed by the County of Leavenworth and that said valuation had not been changed on the records of the County Assessor at the date of the taking of said property by the defendant from the plaintiff. The jury is instructed that such testimony is competent but it is not conclusive. In considering such evidence the jury should do it in the light of all the other facts and circumstances proven upon the trial, and then apply to it such weight as in their judgment they believe it to be entitled to receive.”
What has heretofore been said relative to the inadmissibility of the evidence given by Higgins is relevant on this point. Testimony as to the value placed on plaintiff’s property in 1958 for tax purposes by an appraiser who was not present and available for cross-examination, was not competent and it was error to so instruct.
It cannot be said that the above errors committed at the trial were not prejudicial to plaintiff. No witness, except Higgins himself reading from Wilkins’ appraisal, assigned a value to the Love property of less than $12,000.00. Three of the plaintiff’s witnesses, who acted as appraisers in the condemnation proceedings, fixed the value at $12,000.00, while a fourth witness, engaged in the real estate business in Tonganoxie for forty years, gave his estimate of value as $14,000.00. The plaintiff, herself, thought her property worth $18,-000.00 and so testified. In view of these facts, it would ignore human realities to say that the Wilkins’ appraisal of $7,153.00 could not have affected the jury’s verdict.
The judgment of the lower court is reversed with instructions to grant a new trial.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for contribution by one workmens compensation insurance carrier against another for an award made by the commissioner (now director). The trial court overruled a demurrer lodged against the petition, and the defendant has duly perfected an appeal.
The only question presented is whether the petition states facts sufficient to constitute a cause of action under the theory of contribution, or any other theory.
It has specifically been held that the district courts of this state have jurisdiction over controversies between workmens compensation insurance carriers, which arise independently of controversies between workmen and employers, over liability under the workmens compensation act. (Attebery v. Griffin Construction Co., 181 Kan. 450, 312 P. 2d 598; and United States Fidelity & Guaranty Co. v. Maryland Cas. Co., 186 Kan. 637, 352 P. 2d 70.)
The facts stated in the petition, and the exhibits attached and made a part thereof, may be briefly stated as follows:
The Bituminous Casualty Corporation (appellee), hereafter referred to as Bituminous, insured Jack A. Parry, doing business as Parry and Son Auto Service. The American Fire and Casualty Company (appellant), hereafter referred to as American Fire, insured Bud White, doing business as the Auto Clinic. Both businesses were located in the city of Wichita, Kansas, and both were covered by the Kansas workmen s compensation act.
On June 30, 1960, Clifford E. Fitzwater, a workman with a history of an unstable low back, was accidentally injured while in the course of his employment with Parry, and filed a claim against Bituminous on September 29, 1960, seeking recovery of benefits under the act for an injury consisting of an aggravation of a pre-existing low back condition.
After the first injury sustained with Parry, and before his claim for such injury was heard by the workmen s compensation examiner, it is alleged Fitzwater, while in the employ of White and on October 26 or 27, 1960, accidentally sustained a second injury consisting of another aggravation, or reaggravation, of the same low back condition which was aggravated on June 30, 1960. Thereafter, Fitzwater filed another claim against American Fire for the second injury which occurred while working for White.
On December 2, 1960, the claim against Bituminous was tried and resulted in a maximum award in favor of Fitzwater, granting him $38 per week for 415 weeks plus medical benefits. The award required Bituminous to pay temporary total disability compensation to Fitzwater and to provide him with the care of an orthopedic surgeon. On appeal to the district court of Sedgwick County the award was upheld.
The following is an excerpt from the summary of evidence contained in an exhibit which was attached to and made a part of the petition:
“Mr. Fitzwater, claimant, testified that he was injured on Thursday, June 30, 1960, by pulling out an International transmission with a hard jerk while lying on a creeper on the floor. Claimant felt a severe pain in his low back, but he finished the day’s work. Claimant testified that he worked until Saturday. Claimant received $78.12 for 3K days work. Due to pain in his back, claimant remained inactive around his home. Pain became worse and on Monday, July 4, 1960, Dr. Lee sent some medication for pain to claimant’s home. Claimant was admitted to the hospital on July 5 during the early morning hours. Upon release from the hospital claimant was seen by Dr. Shepard, a chiropractor, who treated claimant with heat for low back pain. July 19, 1960, claimant was released for light work. Compensation for temporary total disability was terminated on August 28, 1960, while claimant was able to perform only light work. Claimant further testified that he was unable to find light work.
“Claimant was hospitalized from August 22, 1960, to August 27, for reasons not related to this accident. Dr. Wier saw claimant and Dr. Lee gave claimant’s back physical therapy treatments. Claimant worked at Jet Ace Garage from September 5, 1960, to September 15, 1960. Claimant worked at Auto Clinic from October 20, 1960, to October 27, 1960. Severe pain in claimant’s back forced him to terminate this employment. Claimant has not worked since October 27, 1960. Claimant complains of severe pain in low back. Dr. Wier advised claimant to lose weight. Claimant desires treatments, as advised by Dr. Lovett. Claimant testified he was compensated for injuries to his back on five different occasions. $154.00 was paid claimant in 1951; and medical bills were paid for claimant in 1956; and $190.00 was paid to claimant in 1957; and $23.00 was paid to claimant in 1958; $40.00 was paid to claimant in 1959. Claimant testified that he was able to perform general mechanic work before the incident of June 30, 1960.”
The workmen s compensation commissioner found that the claimant suffered personal injuries by accident arising out of and in the course of his employment on June SO, 1960, resulting in total disability. The district court on appeal found “by a preponderance of the evidence that the claimant sustained personal injury by the accident on June SO, 1960, arising out of and in the course of his employment with respondent, which residted in temporary total disability from work until further order of the Commissioner, not to exceed however, a period of 415 weeks.” (Emphasis added.)
Bituminous provided Fitzwater with surgery which substantially improved his low back condition. Subsequently, the original award in his favor was modified to require Bituminous to pay Fitzwater compensation based on a 12% permanent partial disability, and Bituminous satisfied this liability by a lump sum payment, taking the benefit of a 5% discount.
Fitzwater dismissed his claim against White and American Fire sometime after July 27, 1961.
Bituminous has now instituted this action alleging that Fitzwater s disability and need for medical, surgical and hospital treatment were brought about equally and jointly by the injuries of June 30, 1960, and October 26 or 27, 1960. Bituminous further alleges that American Fire was equally bound by the workmen’s compensation act to pay the compensation and provide the medical, surgical and hospital treatment which was paid and provided for solely by Bituminous. Bituminous seeks recovery of one-half of its total payments to Fitzwater from American Fire.
American Fire has appealed from an order of the district court overruling its demurrer to the petition of Bituminous.
Bituminous says this appears to be a case of first impression in Kansas.
A search of the Kansas workmen s compensation act reveals nothing in point. The only statute vaguely touching the question is G. S. 1949, 44-503. It specifically grants subrogation rights, but has no application to the present set of facts. G. S. 1949, 60-3437, is a contribution statute but it has no relation to the Kansas workmen’s compensation act. This statute has abrogated the common law rule that there can be no contribution between joint tortfeasors. Here neither of the parties nor the insured employers could be called joint tortfeasors.
Bituminous says its theory of this action is based on contribution. The facts do not justify subrogation, since there is no allegation of a primary obligation and a secondary obligation. (United States Fidelity & Guaranty Co. v. Maryland Cas. Co., supra.) Not being covered by statutory law, the theory of contribution upon which the appellee relies is based upon general principles of equity.
The equitable theory of contribution has previously been recognized in this state. (Hyland v. Dewey, 146 Kan. 797, 73 P. 2d 1038; and Bormaster v. Bormaster, 177 Kan. 1, 274 P. 2d 757.)
In the Hyland case it was said:
“Where several parties are equally bound to the discharge of an obligation, and one is compelled to pay the whole of it, he may have contribution against the others for their ratable proportion of the amount paid; but the mere fact that a person has been benefited by another is not of itself sufficient to require contribution.” (Syl. ¶ 3.)
The principle of equity upon which the right of contribution is founded is further clarified in 18 C. J. S., Contribution, § 3, in the following language:
“. . . the principle of equity on which the right of contribution is founded can apply only in cases where the situations of the parties are equal, for equality among persons whose situations are not equal is not equitable. Within tlie meaning of this rule, the situations of the parties are equal when the parties are under a common burden or liability. It is immaterial whether such liability is joint or joint and several; but where parties are severally bound for a specific portion of a debt as principals, and one pays more than he is bound for, he is entitled to no contribution from the others for such excess. Neither does it matter whether the parties are bound by the same or by separate instruments, or whether they knew of each other’s engagements or not, nor whether they are liable in the same or different amounts, provided their obligation is assumed in respect to one and the same transaction. . . .” (pp. 4, 5.)
Similarly, the definition in 13 Am. Jur., Contribution, § 2, is stated:
“Contribution is defined as a payment made by each, or by any, of several having a common interest or liability of his share in the loss suffered or in the money necessarily paid by one of the parties in behalf of the others. Contribution is unlike indemnity in that the latter springs from contract, express or implied. Contribution imports the idea of equalization of burden, which distinguishes it from indemnity or exoneration and from an equitable right to recover money, all of which may import reimbrusement in full to the party who has satisfied the obligation, on the theory of a primary liability resting on the persons from whom recovery is sought. A person may be entitled to contribution from the equities of the case and yet have no right to indemnity or exoneration because of the absence of any express or implied contract. . . .” (pp. 5, 6.)
There is authority in other jurisdictions for application of the doctrine of contribution to insurers confronted with successive injuries covered by workmen s compensation acts. In 71 C. J., Workmen’s Compensation Acts, § 1353, p. 1411, the rule is stated:
“. . . Compensation for a single disability resulting from separate accidents occurring under different employers should be equally apportioned between the insurers for the different employers.”
In 99 C. J. S., Workmen’s Compensation, § 46, p. 237, it is stated:
“Where a compensable disability is in part the result of an accident sustained under a new employer and in part the result of a prior accident sustained under a former employer who is still liable therefor under the compensation statutes, such liability may be apportioned between the two employers, . .
Cases tending to support the foregoing propositions for equitable contribution in workmen’s compensation cases are Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146, 175 N. E. 654; Zuk v. McGuire Bros., 277 App. Div. 956, 99 N. Y. S. 2d 617; Employer's Casualty Co. v. United States Fidelity & Guaranty Co., 214 Ark. 40, 214 S. W. 2d 774; and Marsolek v. Miller Waste Mills, 244 Minn. 55, 69 N. W. 2d 617.
Massachusetts and Michigan take a contrary view. These states follow the practice of placing full liability upon the insurer covering the risk at the time of the most recent injury. (See, 2 Larson, The Law of Workmen’s Compensation, § 95.12, pp. 472, 473; and 12 Schneider, Workmen’s Compensation, § 2503, p. 251, et seq.)
Bituminous directs our attention to the fact that the apportionment sought in the instant case is not of the type prohibited by Cody v. Lewis & West Transit Mix, 186 Kan. 437, 351 P. 2d 4. There the court held the compensation due an injured workman should not be apportioned, or reduced, because a pre-existing condi tion or prior injury contributed to the workman’s disability. It was there contended that in computing the amount of compensation to be paid a claimant, who was disabled and drew compensation for a prior accidental back injury under the provisions of the workmen’s compensation act, prior to the accident for which the workman later claimed compensation, the trial court was required to apportion the compensation to be allowed for a back injury received in a subsequent accident, percentagewise, according to the proportion of disability caused by the respective injuries. This position was rejected in construing the provisions of G. S. 1959 Supp., 44-511 (4), which were held to indicate, where claimant had suffered a previous disability, that the trial court in determining average earnings, as a basis for determining compensation for his later injury, had the right and duty to fix such amount as would reasonably represent his earning capacity at the time of the later injury in the employment in which he was then working.
Bituminous relies on the following rules: (1) There is no standard of health necessary to bring a workman under the workmen’s compensation act, and accidental injuries are compensable thereunder where the accident only serves to aggravate a pre-existing condition. (Kronig v. Nolan Motor Co., 186 Kan. 534, 351 P. 2d 1; and Pence v. Centex Construction Co., 189 Kan. 718, 371 P. 2d 100); and (2) where a pre-existing disease, condition or prior injury has been materially aggravated by accidental injury, the compensation award should not be apportioned according to the contribution of the pre-existing condition and the accident. (Johnson v. Skelly Oil Co., 181 Kan. 655, 312 P. 2d 1076.)
By reason of the foregoing propositions of law, affirmed in the Cody case, supra, Bituminous argues the second injury would have been material as a defense to a claim on the first injury, only if it could have shown Fitzwater’s disability resulted solely from the second injury; that it would not have been a defense to prove only that American Fire was also liable to Fitzwater because of the second injury.
In other words, what Bituminous seems to say is that if Fitzwater’s claim for compensation based on the alleged second injury had been successfully prosecuted, Fitzwater could have recovered an award for total temporary disability, just as it did against Bituminous, and by reason thereof, the parties to this action are equally liable; and therefore, in equity, Bituminous is entitled to contribution from American Fire.
Upon the controlling facts alleged in the petition, we think it unnecessary to pass upon the doctrine of equitable contribution asserted in the supposititious case above argued by Bituminous.
The difficulty with the position of Bituminous is that it ignores the essential facts in the pleading. The workmen’s compensation claim prosecuted to completion by Fitzwater was the so-called first injury claim founded upon an accidental injury sustained June 30, 1960. Parry, the respondent, and Bituminous, the insurance carrier, were parties to this proceeding. It was alleged Fitzwater filed a claim for the second accidental injury sustained on October 26 or 27, 1960, while in the employ of White. But the pleading further discloses this claim toas dismissed, and we are not at liberty to speculate as to the reason for such dismissal.
The petition incorporated by reference various exhibits, including the award for medical payments and disability resulting from the accidental injury sustained June 30, 1960. It set forth a summary of the evidence, and the findings of the commissioner. It also incorporated by reference the journal entry of the district court on appeal, and a copy of the award as modified.
These documents refute the general allegation in the petition which concludes that the disability of Fitzwater “was caused equally and jointly by the injuries sustained by Fitzwater on June 26, 1960, and October 26 or 27, 1960.” These specific documents relied upon control the general conclusions alleged. The examiner specifically found Fitzwater suffered personal injuries, by accident arising out of and in the course of his employment on June 30, 1960, resulting in total disability. On appeal the district court made the same finding. It also said the injury on June 30, 1960, resulted in temporary total disability from work.
A look beyond these findings to a summary of the evidence discloses that such findings were amply supported by the evidence. A portion of Fitzwater’s testimony, as summarized, has heretofore been quoted.
Dr. Lies, a medical doctor and general practitioner, examined Fitzwater on October 17, 1960 (before the alleged second injury), and said claimant complained of low back pain. The doctor said the pain radiated into the left leg, with inability to move freely in the lower back, thighs and hips. The doctor found muscle spasm about claimant’s lower back, lumbar and gluteal muscles. On October 28, 1960, claimant was given medication and ultrasound therapy. His diagnosis was a disc syndrome between lumbar 4 and lumbar 5. He said the disc between lumbar 4 and lumbar 5 is degenerating and there is an arthritic process at that level. He recommended surgery.
Dr. Lovett, an expert orthopedic surgeon, examined claimant on October 29, 1960. The claimant gave a history of being injured on June 30, 1960, while pulling a transmission out of a car. After hospitalization for a week claimant was released. Claimant gave a history stating he worked for Jet Ace Garage from October 5, 1960, to October 15, 1960, and on October 27, 1960, claimant bent over and raised up, and in doing so moved a small object on the floor, causing pain in claimant’s back. Examination revealed the same symptoms as those stated by Dr. Lies. He advised stabilization surgery.
Dr. Malone, an orthopedic surgeon and a witness for respondent, examined claimant August 16,1960, and August 26,1960. Examination was in connection with claimant’s complaint of a back injury on June 30, 1960; The doctor’s findings were essentially negative and said he could find no objective findings of an injury within the last sixty or ninety days. On cross-examination he testified that the accident record of claimant may indicate an abnormal back, and on the dates of examination claimant was able to return to work.
One might ask, if- Fitzwater was able to perform work as a mechanic at two different garages after his accidental injury on June 30, 1960, how could it be said he was totally temporarily disabled as a result of the injury on June 30, 1960?
The evidence was all before the commissioner and on appeal before the district court. These tribunals were independently entitled to weigh the evidence and make a determination. Presumably, it was determined the subsequent short periods of work only served to prove that claimant was unable to hold a job as a mechanic and perform such work — that claimant’s disability resulted from the injury on June 30, 1960. Based upon the evidence as summarized in the pleading this was a permissible finding.
Bituminous, in a position to defend the prosecution of Fitzwater’s claim for workmen’s compensation on the so-called first injury, is barred by the finding and decision of the district court which became final. This finding negates any liability on the part of American Fire for the disability of the workmen, since it is a finding that the sole and proximate cause of the workman’s disability was the accidental injury on June 30, 1960, at which time the workman was employed by Parry.
The exhibits made a part of the petition also disclose that Bituminous complied with the award made and sought and obtained relief under the award by obtaining a modification order. Thus, Bituminous is estopped from denying the validity and conclusiveness of the findings and award.
In conclusion it is held Bituminous has not alleged a cause of action which enables it to now claim contribution from American Fire, based on the theory that the second accident was a proximate cause of, or a contributing factor to, the workman’s disability.
The foregoing opinion should not be construed as holding the doctrine of equitable contribution applicable to workmen’s compensation cases, where a single disability results from separate accidents under different employers. The controlling statutes of foreign jurisdictions which adhere to such rule have not been analyzed, and we expressly refrain from passing upon this matter because the confronting facts and circumstances presented by the record herein do not force a decision on the point.
We hold the trial court erred in overruling the demurrer lodged against the petition. The judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Z. M. Hill, ~W. Bortzfield and W. Shearer against R. R. Hays, treasurer of Osborne county, for the purpose of perpetually enjoining the collection of a certain tax. A temporary injunction was allowed at the time of the commencement of the action. Afterward the defendant demurred to the plaintiffs’ petition, on the grounds, 1st, that the petition showed upon its face a defect of parties defendant; and 2d, that the petition did not state facts sufficient to constitute a cause of action. The defendant also moved to dissolve said temporary injunction on the same grounds. The court below overruled both the demurrer and the motion to dissolve, and then rendered judgment in favor of the plaintiffs and against the defendant, perpetually enjoining the collection of said tax, and. ordering “that the costs of this action be paid by said R. R. Hays in his official capacity as treasurer of Osborne county.”
It will be perceived that the only questions involved in this case are, first, was there a defect of parties defendant ? and second, did the petition below state facts sufficient to constitute a cause of action ? Said tax was levied solely for the purpose of paying interest on a certain school-district bond, and of creating a sinking fund for the final redemption of said bond; and the only ground upon which it is claimed that said tax is void is, that said bond is void. Said bond was issued by School District No. 13 of Osborne county; and unless the bond is in fact void, said district is liable for its payment according to the terms thereof. Who the holder of said bond is, the petition does not disclose; 'but from certain evidence introduced on the hearing of said motion, it would • seem that the state of Kansas is the holder, and that the bond belongs to the permanent school fund of the state. But it really makes no difference who owns or holds the bond, except possibly as to whether he is an innocent purchaser for value or not. In any case the holder must look to the school district for the fulfillment of the bond.; and if the bond is valid as between the holder and the school district, the school district must look to the taxpayers to furnish the means with which to pay the bond. If there should be any failure in the payment of the bond, or in the payment of the interest thereon, the holder would sue the school district therefor. Hence it will be perceived that the school district is the real party interested in having ‘said tax collected, and is the only party directly interested therein. If taxes are properly levied, collected, and paid over to the bondholder, the school district will never be liable to a suit on the bond; but if taxes are not so levied, collected and paid over, the school district will be liable, provided the bond is valid. And this suit cannot determine the validity or invalidity of said bond in favor of or against either the bondholder or the school district, because neither is a party. The county treasurer is a mere nominal party, in such a case as this, and ordinarily he should not be required to pay costs either in bis individual capacity or in his official capacity. But if he is to pay costs in his official capacity, where is he to get the funds? from the school district? or from the county? or from the state? or from some other source? We think there was a defect of parties defendant in this case. The school district should have been made a party defendant. (For a further discussion of a similar question, see Gilmore v. Fox, 10 Kas. 509, 512, 513.) But as the school district was not made a party, said demurrer should have been sustained. This disposes of the case for the present.
The questions whether the petition below states facts sufficient to constitute a cause of action, and incidentally whether said bond is valid, are also in the case; but we do not think it is necessary to decide them now. Indeed we do not like to decide a question in the absence of every party or person interested on one side of such question, and especially not where a nominal party on that side of the question objects, as the defendant below has done in this case, by demurring to the plaintiffs’ petition because the plaintiffs have not brought in all the necessary parties. With reference to the validity of said bond, it will be well for the parties to examine the cases of Marcy v. Oswego Township, 92 U. S. 637, and Humboldt Township v. Long, id. 642.
The judgment of the court below will be reversed, and cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Sidney Smith against school district No. 2, of Nemaha county, for $238.50 claimed to be due for certain school furniture furnished by the plaintiff to the defendant. Several questions have been raised in this court by counsels’ brief, but the record so obscurely presents the most of them that it would be wholly useless for us to attempt to comment upon them. With reference to most of them we could hardly tell, even with the most careful investigation, whether the court below erred or not. The main question however in the case, both as to law and fact, seems to be whether the parties after making their original contract made a subsequent agreement for the extension of the time for the payment of the price of said furniture. By the original contract the furniture was to be paid for on the 1st of February 1874; and the defendant claims that by a subsequent agreement the time for such payment was extended one year. We have all the evidence before us that was introduced on the trial in the court below, and while it seems that it was supposed that such evidence proved an extension of time, yet we think it proves directly the reverse. Nor was the evidence conflicting; but on the contrary, so far as this question is concerned, it was consistent and harmonious. The clerk of the defendant testified “that he wrote a letter to plaintiff in which he as the clerk of defendant' made a proposition for an extension of the time in the contract stated, or asked the plaintiff what the plaintiff would take and extend the time one year; that the plaintiff replied, and proposed to defendant that if defendant would pay him an additional sum of $4.22 he would extend the contract one year; that to this proposition of plaintiff the defendant did not reply accepting or rejecting the offer made by plaintiff.” There was some other evidence upon this same question, but it was all of the same import, except that some of it showed that some days after- the defendant received the said letter from the plaintiff, but within the same month, the defendant sent another letter to the plaintiff denying all obligation to him, and all contract with him. The court refused to give a certain instruction to the jury for the plaintiff with reference to said extension, but gave one for the defendant upon the same subject. The instruction given for the defendant reads as follows: “ The court instructs the jury, that if defendant notified the plaintiff that it could not pay for said goods according to the agreement, and asked a year’s extension of time, and in reply plaintiff shipped the goods, accepting the offer to wait until February 1875, the jury will find for the defendant.” This was the only instruction that was given in the case, and it was misleading, and erroneous. It is true, that the plaintiff shipped the goods after the defendant asked for the extension of time; and it is also true, that the plaintiff at the time he shipped the goods made the offer to wait for his pay until February 1875; but he made this offer only upon the express condition that he should receive for his goods $4.22 more than he was to receive for them under the original contract; and this offer was never accepted by the defendant. There was not the slightest evidence tending to show any such acceptance. Therefore no new contract or agreement was ever made between the parties extending the time for payment; and therefore the plaintiff had the unquestionable right to insist upon payment being made under the original contract, and to insist on being paid on February 1st 1874. This suit was commenced August 31st 1874, and was therefore commenced long after the plaintiff’s claim became, due. The error of the court below was in wholly ignoring the condition attached to the plaintiff’s offer to extend the time for payment. The jury in accordance with the foregoing instruction rendered a verdict in favor of the defendant. The plaintiff then moved for a new trial on the grounds that "the verdict was not sustained by sufficient evidence, and that the court erred in instructing the jury. This motion was overruled, and here again we think the court below erred. Judgment was then rendered upon the verdict in favor of the defendant. And for the errors above mentioned this judgment must be reversed, and cause remanded for a new trial.
. All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by plaintiff in error against the defendants in error and others, the heirs-at-law of Daniel Main deceased, who died intestate May 1st 1875, being at the time of his death, and for more than thirty years prior thereto, the husband of plaintiff, to have his said heirs decreed to be trustees for plaintiff’s benefit and use of the legal title to all the real estate described in plaintiff’s petition, lying in Lyon county, and to have a resulting trust decreed as to said lands, and said heirs decreed to execute said trust by conveying the legal title to the plaintiff, who claimed to be the equitable owner. The facts claimed by plaintiff, are, that while said Daniel Main wás husband of plaintiff, and in February 1865, and March 1866, with plaintiff’s sole and separate funds he purchased the lands in question as agent of plaintiff, and paid for the same solely out of her funds, and without her knowledge and consent took the deeds to the lands in his own ntme, and they remained in his name until his death. By reason of which facts, it is claimed that said Daniel Main was during his life, and his heirs-at-law since his death, are trustees of a resulting trust under sections 6 and 8 of the act relating to trusts and powers, (Gen. Stat. 1868, p. 1099.) This action was commenced on the 12th of July 1875. The defendants in error answered by setting up four defenses: 1st, a general denial; 2d, the five-years statute of limitations, with some averments to support the same; 3d, the three-years statute of limitations, with averments like unto the second defense; and, 4th, matters of contract as to one quarter-section of said land. The plaintiff demurred separately to the 2d and 3d defenses, on the ground that each wholly failed to state facts sufficient to constitute a defense, each of which demurrers were overruled, and plaintiff took exceptions, and she now brings the case here for review.
It is contended by the counsel for the plaintiff, that if any section of the statute of limitations applies, subdivision fourth of section 16, (Gen. Stat. 1868, p.632,) is applicable, as the action is for the recovery of real property, and hence, the defenses which set up the three and five-years limitations are not good, as the plaintiff has fifteen years within which to bring her suit. Is the suit brought, an action for the recovery of real property? The petition does not allege the defendants are in the pos session of the premises — does not state that plaintiff is entitled to the possession of the same, nor that the defendants unlawfully keep her out. It is not an ejectment action. Because the suit refers to real estate, does it necessarily follow that it is for the recovery of real property? An examination of the decisions of this court, and of the various provisions of the civil code, convinces us that an action may refer to real estate, and yet not come within the class of actions for the recovery of real property, and that the action in question is not an action of that character. It is held in Swartzel v. Rogers, 3 Kas. 374, that an action for partition is not an action for the recovery of real estate, and that the action for the recovery of real property, as used in sections 570 and 574, civil code of 1859, (Comp. Laws 1862, p.224,) is a suit brought for the possession of real estate. In Northrup & Chick v. Romary, 6 Kas. 240, this court held that section 574, of the code of 1862, (sec. 599 of the code of 1868,) authorizing a new trial of course, in an action for the recovery of real property, applies only where the suit is brought to recover possession of real property under sec. 570 of the code of 1859, (or under sec. 595 of the code of 1868,) and does not apply to the action provided in sec. 569 of the code of 1859, and 594 of the code of 1868, by one in possession of real property against another claiming an adverse interest therein, for the determination thereof. Again, following the decisions cited, this court held in Blackford v. Leveridge, 10 Kas. 101, that an action to compel the specific performance of a contract for the sale and conveyance of real estate, and to quiet title and possession,' by one in possession, is not an action for the recovery of real property, and that § 599, of the code of 1868, (Gen. Stat. 748,) does not give a party in such a case a new trial as a matter of right. In the case at bar, the plaintiff does not seek to obtain possession of the property; she has the equitable title, and for aught that appears, may now be in the possession of the premises. All that she seeks is, to have her title perfected. She asks that the legal title be conveyed to the equi table owner.
The action does not come within the provisions of the fourth subdivision of section 16, civil code, and the fifteen-years limitation is not applicable. It is claimed however that said § 16 of the code not only includes actions for the possession of real estate, but also such as determine any adverse right, or interest therein. It is true, if §16 had been adopted without its subdivisions, which limit and circumscribe its meaning, the question would arise, whether this action under review, although not an action for possession, is an action for the determination of any adverse right or interest in real estate. Construing the whole section together, we can come to no other rational conclusion, than that the action therein referred to must include an action for the recovery of the possession of real property only. In such an action, the adverse right or interest of parties to real estate may be determined.
As we find no limitation for the cause of action alleged in the petition in said section 16 of the code, we are compelled to examine and construe sec. 18, (page 633, Gen. Stat. 1868.) This section prescribes that —
“Civil actions, other than for the recpvery 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. * * * Sixth, An action for relief, not herein before provided for, can only be brought within five years after the cause of action shall have accrued.”
Having already concluded that this action is not one for the recovery of real property, and is not embraced in any of the provisions of section 16, it follows as a necessary sequence, that unless said action is provided for as to limitation in the subdivisions of section 18, prior to the sixth, said sixth subdivision is applicable. A cursory examination of the first, second, fourth, and fifth subdivisions of section 18, is sufficient to establish that the cause of action under discussion is not included in any of them. But if the action is one for relief on the ground of fraud, subdivision third of section 18 covers the ease. The facts stated in the petition are not consistent with fair dealing on the part of the agent towards his principal; nor that he was striving to honestly perform his duties. The agent being in a position to take advantage of the trust and confidence reposed in him, violates the trust, and takes to himself the title of property belonging to his principal. A fraud was actually committed against the rights of the principal, knowingly and purposely. The acts of an agent under such circumstances, “is deemed fraudulent in law.” It is not necessary that the action of the agent should be emphasized in the petition as having been done “fraudulently, or wrongfully.” The acts themselves, being set forth, show this to be the fact. The intestate died in May 1875, more than nine years after the last purchase, and the retention of the title in himself only adds additional strength to the character of the fraud upon his principal. The fraud was consummated when the agent took the title to the property in his own name, at the time he made the purchase with the funds of his principal; but that an innocent party may not suffer while in ignorance of his rights, the statute excepts the plaintiff from the limitation, until a discovery of the fraud. Young v. Whittenhall, 15 Kas. 579. The gist of this action is, “for relief on the ground of fraud,” and very clearly comes within the provision of said third subdivision of §18 of the code.
As the answer of the three-years statute and the five-years statute of limitations, states a time since the cause of action accrued which exceeds the time defined in said subdivision third for the limitation of an action for relief on the ground of fraud, the demurrer to the defenses of the three and five-years limitations was properly overruled. Both three and five include two. The greater includes the less, and either defense was sufficient. The code gives a party fifteen years in which to bring an action for the recovery of the possession of real property, and if the party seeks less than his full rights, or chooses to divide up his cause of action, a different and a lesser period of limitation is prescribed. In this case only two years. Under this view of the statute of limita tions, as applied to the cause of action set forth in the plaintiff’s petition, it is perhaps unnecessary to add, that the petition is defective in stating a cause of action which appears to be barred by the two-years statute. There is no allegation contained therein stating when the fraud was discovered, and as the title was taken to the intestate in 1865 and 1866, and as the action was not commenced till July 12th 1875, more than two years have elapsed since' the cause of action accrued.
' The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Brewer, J.:
On the trial in the court below the jury returned a general verdict for plaintiff, but at the same time returned answers to special questions. Both parties moved for judgment, and the court sustained the motion of defendants. No motions were made by either side to set aside the verdict, or for a new trial; so that though a bill of exceptions preserves the testimony, our inquiry is limited to the pleadings, the verdict, and the answers. The petition alleges that in March 1874 the defendant W. J. Cummings purchased of plaintiff thirty-eight head of cattle -for $2,850, payable $400 cash in hand, as earnest-money, and the balance when the cattle should be taken, which was to be between June 25th and August 25th; that Cummings drew his draft for said $400 upon the other defendants, doing business as bankers under the firm-name of Simpson Bank, and to induce plaintiff to take the same stated that while insolvent himself he had made arrangements with Simpson Bank whereby said draft would be promptly paid, as well as any checks he might thereafter draw; that relying thereon plaintiff received said draft, and that said draft was duly paid by Simpson Bank with full knowledge of all these statements and matters. The petition then proceeds as follows:
“Afterward, on the 25th of June 1874, the said William J. Cummings, desiring to take possession of the said thirty-eight head of cattle and to ship them, (together with about sixty-four other head of cattle, before that time sold to said Cummings by one McLane,) to the firm of Rheaj Moody & Co., as consignees, at St. Louis, Missouri, called at the banking-house of said firm, Simpson Bank, in Lawrence, and notified said bank of his desire to obtain possession of said cattle, and to ship them to Rhea, Moody & Co. as aforesaid, and then and there drew and delivered his draft for $7,280, in favor of said Simpson Bank, on Rhea, Moody & Co., against said proposed consignment of sixty-four head and thirty-eight head of cattle, so as aforesaid bought of plaintiff and'of said McLane; and said Cummings then and there, and before delivering said draft for $7,280 to Simpson Bank, further notified said bank that he was by contract bound, and intended, on obtaining possession of said cattle, to give to said McLane a check on said Simpson Bank for about $4,525, and to this plaintiff a check on them also for about $2,450, the balances of the purchase-money due and owing to the said McLane and this plaintiff, respectively, for said cattle; and said Simpson Bank then and there expressly promised and agreed to and with said Cummings, to collect said draft for $7,280, and out of the proceeds thereof, to pay said checks, and each of them, promptly on presentment therefor, and thereupon, on that condition, for that consideration and purpose, and with that understanding and none other, the said Cummings then and there delivered said draft for $7,280 to Simpson Bank, .and it was by them presented to Ehea, Moody & Co., the drawees therein named, for payment, and was by them duly paid to Simpson Bank, on or about the 1st of July 1874, as said bank then well knew. Afterward, on the 26th of June 1874, said Cummings called upon this plaintiff, at said Franklin county, and then and there stated to him all and singular the facts above set. forth, and particularly repeated to him the promise so as aforesaid made by said Simpson Bank to pay the check for about $2,450, to be given by said Cummings to the plaintiff, on taking possession of said thirty-eight head of cattle, in consideration of the delivery to them of said draft for $7,280, as hereinbefore alleged; and said Simpson Bank, then and there itself likewise expressly promised this plaintiff, if he would deliver said thirty-eight head of cattle to said Cummings, to pay said check so to be given as aforesaid for the balance of the purchase-money thereof, to-wit, about $2,450; and this plaintiff, relying upon and induced by the said statements and promise of said Cummings and said Simpson Bank, then and there delivered to said Cummings the thirty-eight head of cattle, receiving from him in exchange therefor a check for $2,450 on Simpson Bank.”
The petition then gives a copy of the, check, dated June 29th, alleges that it was duly presented on July 3d, and payment refused; that it is still unpaid; that Simpson Bank had received the amount of draft on Ehea, Moody & Co. in full before check was presented, and had the same when they so refused payment, and that Cummings was and is wholly insolvent. The bank filed a general denial, and upon these pleadings the trial was had.
The first question presented was this, “ Had said defendant, the Simpson Bank, previous to the delivery of the check for $2,450 in plaintiff’s petition described, promised to pay the checks of Cummings generally ?” The answer was, “ Not gen erally, but did agree to pay Harrison’s cheek.” The next seven questions and answers cut no figure in the case, and need not be quoted. The remaining questions and answers are as follows:
9th.-Did Simpson Bank promise to pay the check for $2,450, in plaintiff’s petition described, at the time defendant Cummings drew his draft for $7,280 on Rhea, Moody. & Co. of St. Louis? Ans.-Yes.
10th. — If there was such a promise, what officer of the bank made it? Ans.-The president.
11th— If thére was such a promise, to whom was the promise made? Ans.-To Cummings, and by Cummings communicated to Harrison.
13th. — If there was such a promise, where was it made? Ans-In Simpson Bank.
13th.-If there was any promise, was there any consideration therefor? Ans.-There was.
'Uth.-Ii there was such a promise and a consideration therefor, what was the consideration? Ans.-Draft on St. Louis for $7,280.
1.5th— If there was such a promise and a consideration therefor, who paid the consideration? Ans. — Cummings.
16th. — Ii there was any consideration paid, when was it paid? Ans.-At the time draft on St. Louis was delivered to Simpson Bank.
r17th.— li there was any such promise made", was such promise in writing? Ans.-No.
18th — If there was such promise in writing, what was the writing ? Ans.-Answered by No. 17.
19th. — Did the defendant Simpson Bank, after Cummings gave the check in plaintiff’s petition described, promise to pay the said check? Ans.-Yes.
30th.-H such promise was made, was it in writing ? Ans.No.
31st — And if in writing, what was the writing? Ans.Answered by No. 20.
33d-If there was such a promise, was there a consideration therefor? Ans.-Yes. 1
■33d. — If there was such promise, what officer of the bank made the promise ? Ans.-President.
34th. — If there was such promise, when was it made and to whom ? Ans.-To Harrison, on the 4th of July, and to Cum mings and Harrison on 6th July, and also on 25th of June to Cummings.
25th. — M, the time the check for $2,450 was presented to Simpson Bank for payment, had Cummings, the maker of the check, funds enough in Simpson Bank to pay that check ? Ans. — Don’t know.
26th. — Had Simpson Bank funds enough of defendant Cummings to pay said check at any time after the same was presented for payment ? Ans.-Don’t know.
27th — T>'A Simpson Bank at any time accept the check in plaintiff’s petition described, in writing? Ans.-No.
28th. — If the Bank did so accept said check, when was it accepted ? Ans.-Answered in No. 27.
The question, as it seems to us, presented by the record is, Can the payee of a check recover of the bank upon which it is drawn, upon a parol promise made by the bank to the drawer before it is drawn that it will pay such check, which check is to be and is given to the payee for a debt due from the drawer to him at the time of the promise, of which fact the bank had full knowledge, and which promise is communicated to the payee at the time the check is received by him, and upon the faith of which promise and check the payee at the time parts with value ? As it appears from the 25th and 26th questions, that the plaintiff failed to show that the drawer had funds in the bank to meet it, his check cannot be considered, as it is in some cases, as an equitable assignment of funds, and an action maintained upon such a theory. Neither was there any acceptance of the check when presented, nor any promise in writing to pay or accept it. Indeed, it is plain that no action can be maintained upon the check upon any recognized theory concerning mercantile paper. But while no action can be maintained upon the check, we think, upon the facts as found, Harrison was entitled to recover. The only promise made by the bank was a promise to Cummings, but it was a promise upon a valuable consideration to pay Cummings’ debt to Harrison. And as already decided by this court in Anthony v. Herman, 14 Kas. 494, “An action can be maintained upon a promise made by a defendant, upon valid consideration, to a third party for the benefit of the plaintiff, although the plaintiff was not privy to the consideration.” Harrison, it is true, was not privy to the consideration given by Cummings to the bank; but Cummings was indebted to Harrison, and he gave to the bank valuable consideration, for which it promised to pay his debt. Harrison is entitled to avail himself of this promise. It will be borne in mind that Cummings, at the time of this promise of the bank, was already indebted to Harrison, the purchase of the cattle having been made some months before, and that the bank was fully aware of the circumstances of the purchase and the existence of the debt, so that the promise of the bank is fairly to be deemed as a promise to pay that debt, the check being only the means of evidencing and accomplishing the payment. There is a difference, it is true, between the case of Anthony v. Herman, and this, but the difference is in favor of this. There, Anthony parted with nothing, and he was held entitled to avail himself of a transaction entirely between third parties. Here, Harrison parted with value, which will be entirely lost to him if the bank is permitted to break its promise. Again, the petition alleges that the bank itself promised Harrison to pay the check if he would deliver the cattle, and that upon the faith thereof he delivered the cattle. The general verdict would be equivalent to a finding that this was so. The answers to the special questions do not absolutely negative this finding. But we are not inclined to place any stress on this, for the testimony, though not properly before us for consideration, discloses the fact that no such direct promise was made.
For the reasons first given the judgment of the district court will be reversed, and the case remanded with instructions to enter judgment in favor of the plaintiff on the general verdict.
'Valentine, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Brewer, J.:
This, like the case of Baker v. Long, just decided, (ante, p. 341,) is a contested election case, coming from the same county, and contesting an election held at the same time. The parties in this case were candidates for the office of county clerk. The canvassers awarded the office to Anderson, stating the vote for him to be 584 and for Wildman 574. The contest court decided in favor of Wildman, and its decision was reversed on error in the district court. Wild-man brings the case here, and asks to have the decision of the district court reversed, and that of the contest court affirmed. The principal question arises on these facts: In November 1873, Smolan township was duly set off from ad-joining townships, by the county board. The order organizingit established the township,“with a voting precinct at the school-house of district No. 24.” In April 1874, certain sections were detached from Walnut, and added to Smolan township. July 20th 1874, the board made another order concerning Smolan township, to-wit, “that a voting precinct be and is hereby established in Smolan township, to be known as Huffman’s school-house precinct.” No other action was ever taken by the county commissioners regarding Smolan township, or election-precincts therein. As a matter of fact, the first election in Smolan township was not held at the school-house in district No. 24, but at Maltby’s school-house in district No. 6, in the eastern part of the township, that being a customary voting-place prior to the organization of the township. 'Maltby’s school-house was the only voting-place used by the electors until the election in controversy, in November 1875, when two voting-places were used, one at Maltby’s, and the other at Huffman’s school-house in district No. 24. The only objection urged to this election, and to the use of the two voting-places, is in the fact that thb county board failed to prescribe any boundaries to the election-precincts. The contestor did not claim that any persons not legal electors of the township voted at either voting-place, or that any one voted at both places, or that any voter was rejected at one place on the ground that he ought to have voted at the other, and so lost his vote altogether, or that there was anything wrong in the mere conduct of the election. ' And on the. other hand it affirmatively appeared, that the county clerk informed the township trustee prior to the election that the county board had established a new voting-place at Hultman’s school-house; that he also spoke to some of the voters of the township about it, and that the trustee went around among the people a few days before the election informing them of the fact; that he caused ballot-boxes to-be provided for each voting-place; that he assisted at the organization of the election-board at Hultman’s school-house, and himself cast the second vote at that place; that the sheriff sent to each place notices of the election to be posted up as required by law, and that a large vote was polled in the township. In addition, the contestee produced before the contest court all the parties whose names appear on the poll-books of both voting-places, and offered to prove by them that they were all legal voters of the township and had voted at that election, and that their votes were cast in- respect to the office of county clerk as returned to the canvassing board.
Upon these facts ought the votes cast at either voting-place to be rejected? We think not. It may be conceded that the order of the county board in reference to the second precinct was defective in not giving its boundaries; that it.had no binding force upon the electors of the township, and might have been ignored by them altogether. Yet it had the semblance of legal force. It was the apparent creation of a voting precinct; and having been accepted by the people, the only ones interested in the matter, and acted upon by them as though it were in all respects legal and binding, the defects in the order cannot now be made the means of disfranchising a body of lega] voters, innocent of wrong, seeking to exercise their rights of franchise, and only misled by the officers of the law. Even in organizations of a more permanent character, and exercising functions more constantly and seriously affecting the interests of the public, such for instance as townships, an acquiescence by the people may cure defects as serious as those in the order in question.
Suppose a township had been attempted to be crea£e(j foy an or¿er just as incomplete as this, and the people resident in the school-district in which was the school-house named — as here, “Hultman’s school-district”— had proceeded to set in motion the machinery of a township organization, it would not be long before acquiescence by the community in these proceedings would put beyond question the legality of the township, and the extent of its limits. It would be impossible to state beforehand the exact length of time that the acquiescence must run before the validity would be beyond dispute. Doubtless the time would vary in different cases. But still, being a defacto organization, it would soon to all intents and purposes become a de jwre organization. It could create debts which could’ be enforced against it. Its acts would be valid upon all within and without its boundaries. If this is true in reference to such permanent organizations, with such continuous duties and officers, how much more is it true in reference to these (so to speak) special organizations, which serve but a single purpose, and whose officers and duties expire in a single day? It may be conceded that time and place are matters of substance, and that to secure a valid election the appointed time and place must be regarded. It may also be conceded that a part of the electors have no right of their own volition to set up a separate voting-place, and insist that votes cast at such place be counted in the result. But this is no such case. The county board has unquestioned power to establish election-precincts. It attempted to create one. Its order was incomplete.
But, deemed sufficient by those whose duty it was to carry it into effect, and by those who were to be affected by it, and actually recognized and carried into practical effect by all affected by it, it,, had sufficient semblance of legality and completeness to make valid the subsequent action. Our statute has this wise provision, that—
“ Whenever it shall satisfactorily appear that any person has received the highest number of votes for any office, such person shall receive the certificate of election, notwithstanding the provisions of law may not have been fully complied with in noticing and conducting the election, so that the real will of the people may not be defeated by any informality of any officer.” Gen. Stat. p. 411, §29.
Does it not., satisfactorily appear that the real will of the people was in favor of the contestee? They who voted were legal electors. They claimed and sought to exercise their right to vote. They voted at the place the officers designated. They voted in the manner prescribed by law. Why should the mistakes of any officers operate to disfranchise them? We quote with approbation the clear and forcible language of Associate Justice Hanna in dissenting from the opinion of a majority of the contest court: “It is clearly proved on this trial to the satisfaction of the undersigned, that the county commissioners in establishing the Huffman's school-house precinct, and that thie county clerk, sheriff, and township trustee in giving notice to said voters of the creation of said-precinct, acted in good faith, and without any purpose.or intention of fraud or wrong; and that the voters in assembling at said Huffman's school-house on election-day, and then and there voting, acted in good faith, and as they believed and had good reason to believe in strict accordance with law. If any law was violated in the holding of said election at said place, it was a violation of which said voters had no knowledge, for which they cannot properly be held responsible, and for which they should not be punished — and which could not and did not in any manner affect the general result of the election. The recognized and admitted object of elections is to obtain expressions of the will of the people. The conceded purpose of all statute laws regulating elections, is to provide means by which a full, fair, honest and untrammeled expression of the will of the people may be obtained through the ballot-box, in the choice of officers, and for other purposes. All laws, constructions of laws, rulings or decisions, that interfere with the accomplishment of such purpose, are subversive of the foundation principles of popular government.” In this matter then we see no error in the ruling of the district court.
Another question arises on these facts: In one of the precincts some of the votes cast were upon two pieces of paper, instead of one, as the statute directs. It seems that county and township tickets were both printed, that is, some tickets with only the names of the township officers and the candidates therefor, printed on them, and others having only the candidates for the county officers printed thereon. The voter folded the township ticket inside of the county ticket, and handed that to the judges as his ballot, and it was so received and placed in the ballot-box. Did this invalidate the vote of such voter? and ought the judges to have thrown out all such votes? The good faith of all’ parties is abundantly shown. And the vote can be rejected only by reason of the fact that it was upon two pieces of paper. There was no chance for mistake, for below the title of each office was the name of the candidate therefor —no possibility of an attempt to cast two votes for the same officer. It seems to us the provision of the statute we have heretofore quoted forbids the rejection of such a vote. Sec. 22 of the election law, Gen. Stat. p. 409, which requires certain action in case two or more ballots are found so folded together as to present the appearance of a single ballot, applies where the ballots are alike, or partially so, so as to indicate that a voter has by mistake or intentionally cast two votes for the same candidate. It is a rule in the interest of the purity of the ballot-box, and to guard against illegal votes. It should not be used as a means of disfranchising one whose vote, though upon two pieces of paper, plainly indicates that he is casting but one vote upon each question and for each office.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin brought by Mary J. Wilson against J. W. McCartney. The property in controversy belonged to Mrs. Wilson, but McCartney claimed to be entitled to the possession thereof by virtue of a certain chattel mortgage executed by Mrs. Wilson to himself to secure the payment of a certain promissory.note. The mortgage stipulated among other things, that the property should remain in the possession of Mrs. Wilson until default should be made in the payment of said note, unless Mrs. Wilson should sell or offer to sell the same, or remove or offer to remove the same from Butler county, or unless the same should depreciate in value, or unless the security should in some other manner become impaired, in which case McCartney was authorized to take the property into his possession and sell the same for the purpose of paying said note. Afterward McCartney did take the property into his possession. The record states such taking, and the grounds therefor, as-follows: “He deemed the property therein described inadequate security by reason of the great depreciation in value, and therefore he took possession of the same in order to advertise and sell the same and apply the proceeds in payment of said note, and before the sale thereof this suit was brought in replevin by the plaintiff to recover possession of said property.” Now, there is nothing in the record which shows that said property had in fact depreciated in value, or that anything else had in fact transpired to give to McCart-' ney the right to the possession of the property; and for this reason alone the judgment of the court below, which gave the property to the plaintiff, should be affirmed. But .the plaintiff seems to have prosecuted her action in the court below solely upon the ground that the said mortgage was void. We shall therefore examine the case from that standpoint.
It seems that some time prior to the execution of said note and mortgage, the plaintiff was the prosecuting witness in a certain criminal proceeding, in which proceeding she was adjudged to pay the costs, and to stand committed to the county jail until the same were paid. The defendant was the officer who had her in charge, and instead of executing the judgment of the court, as he should have done, he took said note and mortgage, and in consideration thereof released his prisoner. The note was executed by Mrs. Wilson to herself, indorsed in blank, and delivered to McCartney. The mortgage was executed by Mrs. Wilson to the state of Kansas and to the defendant McCartney jointly, and delivered to McCartney. Now we think that such a mortgage is void. There is certainly no statute that authorizes the execution of such a mortgage. Mrs. Wilson might have given a bond under § 18 of the act regulating procedure before justices of the peace in misdemeanors; (Gen. Stat. 881, 882, §18.) But there is certainly no statute authorizing such a transaction as the one which brought this mortgage into existence. ■ Said mortgage was void because there was no sufficient legal consideration therefor. Mrs. Wilson was never released, or attempted to be released, from paying said costs. She was never legally released from her liability to suffer said imprisonment in the county jail, to which she was adjudged. She might legally have been arrested and committed to the county jail the very next minute after she executed said note and mortgage, and after she was released by McCartney. McCartney never paid said costs, or offered to pay them', and they never have been paid. The record in fact does not show that he ever even agreed to pay them, and we suppose he never did agree to pay them except possibly by implication he agreed to pay them as he collected the same from Mrs. Wilson on the note, or as he made the amount from the sale of said -mortgaged property. It will therefore be noticed that ■this case differs widely from the case of Converse v. Safford, recently decided by this court, (ante, p. 15.) The note and mortgage were sustained in that case upon the ground' that they were given substantially for a loan of money.
It is claimed however that Mrs. Wilson is estopped from setting up any claim that said mortgage is void; and we suppose that this claim is made upon the ground, principally, that if any wrong was done she is in pari delicto. This would probably be so if the note and mortgage had been executed, the property delivered, and Mrs. Wilson released, all at the same time, as parts and portions of one and the same transaction. But this .was not so. It does not appear that the property was ever delivered to McCartney. On the contrary, the record shows that “he took possession of the same” long after the note and mortgage were executed, long after Mrs Wilson was released, and probably against her will, for she (shortly after it was taken) replevied it. We suppose it will be remembered that all presumptions, from silence on the part of the record, must be construed against the plaintiff in error. Error is never presumed, but must be affirmatively shown. The presumptions are all in favor of the correctness of the decision of the court..
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for damages for breach of a contract. The action was commenced by Richardson against Rettman in a justice’s court, where judgment was rendered for the plaintiff for $56.30, and costs. Rettman then appealed to the district court. In the district court the case was tried before a jury. We have all the evidence in troduced on the trial; but none of the instructions given or refused have been brought to this court. The jury found a verdict in favor of the plaintiff for $34.85, for which amount, together with costs, judgment was rendered. The defendant now brings the case to this court on petition in error. There is no new question of law involved in this case. Every legal question involved therein has already been passed upon and decided by this court in other cases. And the decisions in other cases have been published in the supreme court reports, and have therefore become public. "We are also satisfied that the court below committed no error for which the judgment of such court can be reversed. It will therefore be seen that nothing could be gained by a discussion of any of the legal questions involved in this case, and therefore the judgment of the court below will be affirmed without any such discussion.
All the Justices concurring. | [
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The opinion of the court was. delivered by
Brewer, J.:
This was an action originally commenced by A. Gr. Campbell, defendant in error, to recover for wages claimed to be due him as a school teacher. The facts as developed on the trial, and as set out in the “ case-made,” are substantially as follows: In the year 1871 the J J t territory now embraced by the plaintiff in error was composed of two school districts, known respectively as School District No. 1, of Morris county, and School District No. 2, of Morris county. 'Campbell was employed to teach a school in District No. 1, for three months, beginning April 15th 1871, for the sum of $65 per month. After he had taught the school two months, and on the 14th of July 1871, the superintendent of public instruction of Morris county formed a new school district-out of said Districts No. 1 and 2, and other territory adjacent in the county, under the name of “Union School District No. 1, of Morris county.” This new district immediately elected officers, took possession of all the property and franchises of old District No. 1, and hired new teachers, and exercised all the functions of a school board under the law. Afterward certain citizens of said School District No. 1, feeling aggrieved at the action of the county-superintendent in forming said new school district, notified him that they would appeal from his decision creating said new school district to the board of county commissioners of Morris county; and they did so appeal, and the county board, on the 9th of September*1871, heard said appeal, and reversed the decision of the county superintendent, and placed said School Districts Nos. 1 and 2 in their former condition. The officers of said School District No. 1 still continued to act, and after the aforesaid proceedings were had before the board of county commissioners renewed their contract with Campbell, and by'the terms of this contract, and by mutual consent, Campbell was hired to teach the school of said District No. 1 for three months, from September 9th 1871, to November 30th 1871, at $65 per month, and Campbell performed his part of the contract. This made five months in all that Campbell taught school for said District No. 1; and afterward said district, by its duly-authorized officers, executed and delivered to Campbell as evidence of its indebtedness to him for his said services two orders on its treasurer, one for the sum of $130, being for the first two months’ teaching, and the other for the sum of $195, being for the last three months’ teaching. But the so-called Union School District No. 1, upon its creation (by the act of the superintendent, as before stated,) had possessed itself of the property and franchises'of School Districts Nos. 1 and 2, and after the aforesaid action of the county commissioners refused to surrender to School District No. 1 its property and franchises; and said so-called “Union School District” had collected the taxes of School District No. 1 for the year 1871, so that School District No. 1 was unable to pay Campbell the amount it was indebted to him. In the winter of -1871, School District No. 1 obtained a mandamus from the district court of Morris' county, commanding the said “Union School District” to restore to School District No. 1 its property, effects and franchises; but before said mandamus could be enforced, the territory comprising said School District No. 1 and School District No. 2, being the territory that had been organized into said new school district as “ Union School District No. 1,” (all of said territory comprising the city of Council Grove, it being then a city of the third class,) was by act of the legislature (chapter 101, laws of 1872,) created into a city of the second class, and said School District No. 1, and Union-School District No. 1, had no legal or- corporate existence as such districts so-called after that time, but all the territory comprising said districts was thereby merged into a new school-district governed by the Board of Education of the city of Council Grove, and said board of education became possessed of all the property, effects, and franchises of said School District No. 1, and Union School District No. 1. - Neither School District No. 1, nor Union School District No. 1, ever paid Campbell for his services, or any part thereof. He presented the aforesaid school orders to the board of education of the city of Council Grove, and said board of education paid him (June 4th 1872,) the sum of $130 in full for said order issued for the two months he taught school in the spring of 1871, a'nd $65 on the order issued to him for the three months’ teaching in the fall of 1871. Said money was not paid to him as a settlement in full, and he brought suit for $130, the balance due on the last-mentioned order, and recovered a judgment for that balance.
The alleged errors complained of by plaintiff) are, 1st, that there was no legal appeal taken from the action of the county superintendent in forming Union School District No. 1; and 2d, that old District No. 1 was superseded, and never had power to make a valid contract after the action of July 14th, merging it into the Union District. The second proposition of counsel hinges on the first; for if the action of the commissioners was valid, then the action of the superintendent was vacated, and District No. 1 possessed all the powers to contract it ever had. Was there an appeal taken, such' as the law contemplates? Section 51 of the Gen. Stat. 1868, page 926, provides that, “if in the formation or alteration of a school district, any person or persons shall feel aggrieved, such person or persons may appeal to the board of county commissioners, who shall confer with the county superintendent, and their action shall be final.” This was the law in force at the time the contract sued on was made. There was no specified time fixed for the appeal, except that mentioned in this section. Counsel contends that, as no time for taking an appeal is fixed, it must be taken at or about the time of the superintendent’s action, and that an appeal two months after such action is too late. We cannot assent to the conclusion he reaches. The record is silent as to how and when the appeal was taken. It recites that after the superintendent had taken his action, certain residents and citizens feeling aggrieved thereby notified him that they would appeal from such action to the county commissioners, and that afterward, and on the 9th of September, certain proceedings were had before the commissioners, they conferring with the county superintendent, and that such proceedings resulted in setting aside the superintendent’s order. In such proceedings before the commissioners, both the advocates and opponents of the superintendent’s action appeared, and were heard by counsel. At what time the notice was given to the superintendent, at what time the papers in the appeal were filed with the clerk of the county board, does not appear. Neither does the record show whether there was any session of the commissioners between the 14th of July and the 19th of September. The law required no meeting-between those dates. Gen. Stat. 256, §13. But beyond all this, the district court of Morris county, a court of general jurisdiction, in an inquiry between the old and the new districts (by proceedings in mandamus,) sustained the corporate existence of the former, as well as its rights to the possession of the school buildings and other property.
The court below, in the case at bar, made no special findings of fact, but only a general finding in favor of Campbell. Where the right of appeal is given, and the record shows that this right was attempted to be exercised, that the appellate tribunal took jurisdiction of the matter, that the parties interested appeared before such tribunal, that no objection was made to its jurisdiction of the appeal, and that the appellate tribunal decided the matter on such appeal, the regularity of the steps taken to perfect such appeal, will, in any collateral inquiry, be presumed.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The defendant was convicted of selling liquors in Cottonwood Falls, Chase county, contrary to the provisions of the dramshop act of 1868. The selling of the liquors was admitted, but defendant established on the trial that Cottonwood Falls was an incorporated city of the third class; that the city had an ordinance in force at the time of the commission of the acts alleged in the information, regu lating tippling-shops; that defendant had received a license from the city authorities to keep a tippling-shop within the city during the period of time within which it was admitted the defendant sold liquors, and that defendant complied with the conditions of the ordinance of the city relating to the sale of liquors. The ordinance makes no provision that the applicant for a license shall comply with the conditions of the dramshop act; neither did the defendant ever present to the city council the petition prescribed in § 1 of said act, or give the bond required by § 5 of the act.
The defendant appeals to this court to set aside the judgment of the court below; and counsel for the appellant claim “that by the passage of the ordinance as shown by the record, the city of Cottonwood Falls must be deemed to have acted under the power granted by § 50 of the third-class city-charter act, chapter 60, laws 1871, page 131;.that this section gave it ample authority to pass the ordinance; that the defendant was protected by complying with its conditions, and therefore the judgment should be reversed.” This court decided in the case of the City of Salina v. Seitz, 16 Kas. 143, that cities of the third class have the right to pass ordinances for the issuance of licenses upon certain terms and conditions to persons to sell intoxicating liquors; and hence, the first question presented, is, whether such power must be exercised in harmony with the provisions of the dramshop act, or whether cities of the third class may by ordinance, or otherwise, dispense with the conditions therein contained ? In the case of Alexander v. O’Donnell, 12 Kas. 608, it is held, under ch. 100, laws 1872, p. 206, § 47, providing “the city council shall have exclusive authority to levy and collect a license-tax on saloons, liquor-sellers,” etc., that “the dramshop act is operative within the territorial limits of cities of the second class. The charter does not in terms limit the operation of the dramshop act. Exclusive authority over the liquor question is not granted, but only exclusive authority to levy and collect licenses. The general law, in terms reaching to cities, prohibits a sale without license.” No greater power is granted to cities of the third class by § 50, ch. 60, laws of 1871, and § 48 of the same chapter, as amended by § 2 of ch. 102, laws of 1872, as to the authority to levy and collect a license-tax on saloons, liquor-sellers, etc., than was bestowed on cities of the second class by ch. 100, laws of 1872, p. 206, § 47. Nor can it be said that the provisions of the dramshop act have been repealed by the laws of 1871 or 1872 authorizing the incorporation of cities of the third class. The repeal of laws by implication is not favored by courts, and there is no repugnancy between the provisions of the dramshop act and the acts permitting cities of the third' class to be incorporated. It is urged by appellant’s counsel, however, “that cities of the third class may act under either power granted by § 50, laws 1871, page 131, or by § 48, laws 1871, page 130, as amended by §2, laws 1872, page 234, or by the sections of ch. 35, laws 1868, page 399; and that having acted under one, they avoid the necessity of acting under either of the others.” We think this argument fallacious. It is well settled, that different statutes relating to the same subject are to be construed together. If it be conceded that the dram-shop act is in force within the limits of incorporated cities of the third class, then it follows, its provisions cannot be disregarded. The various sections of the laws of 1871 and 1872, giving authority to cities of the third class to. “levy and collect a license-tax on saloons, liquor-sellers,” etc., must be construed in harmony with the provisions of the dramshop act, and persons wishing to engage in the sale of intoxicating liquors within the corporate limits of this class of cities must fully comply with, its provisions. The city of Cottonwood Falls cannot act under one of the powers granted, and disregard the others. There is no conflict between the statutes referred to, and manifestly they stand together. Indeed, this is made certain by the'proviso to § 1 of the dramshop act of 1868, to the effect “that the corporate authorities of cities of the first and second class, may by ordinance, dispense with the petition mentioned in this section.”
The final question to be considered is, whether the defend ant having obtained a license from the corporate authorities of Cottonwood Falls, without complying with the conditions of the dramshop act, is protected thereby from punishment for the offense charged in the information ? The views already expressed lead to the conclusion that he is not. In the case of Hartford Fire Ins. Co. v. The State, 9 Kas. 210, this court held that a certificate of authority by the auditor of state to a foreign insurance company to do business in the state without the previous payment of fifty dollars required by the law, was a nullity. The late chief justice in the opinion states, “when the certificate of authority was issued, one of the vital conditions upon which it could be granted had not been complied with on the part of the plaintiff in error. It was a condition that neither the auditor nor any other officer could waive or dispense with. Because of the nonpayment of this money, the certificate itself was void, and presented no defense to the action.” We are therefore clearly of the opinion, upon authority and reason, that the presentation of a petition, as required by § 1 of the dramshop act of 1868, is an essential condition precedent to the validity of a license to sell intoxicating liquors, and that the license introduced in evidence gave no protection to Young. Palmer v. Doney, 2 Johns. Cases, 346; Hauser v. The State, 18 Ind. 106; Townsend v. The State, 2 Blackf. 151; State v. Moore, 1 Jones, (N. C.) 275; House v. State, 41 Miss. 737; The State v. Fisher, 33 Wis. 154; The State, ex rel., v. Ludington, 33 Wis. 107.
Counsel for appellant dwell with considerable stress upon the decision in the case of the City of Emporia v. Volmer, 12 Kas. 622, and claim, as the ordinance of Cottonwood Falls is a duplicate of the ordinance in force in Emporia upon which Volmer was convicted, a similar ruling in the action under review would protect the defendant, who had complied with the ordinance of the city in which the offense was committed. The conclusion is not tenable. Cottonwood Falls is a city of the third class; Emporia is a city of the second class; and the dramshop act expressly provides that a city of the second class may by ordinance dispense with the petition mentioned in the first section of the act. Like authority is not granted to cities of the third class.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This petition in error was brought in this court for the purpose of reversing a judgment of the district court of Leavenworth county, which affirmed a judgment of a certain contest court of said county which held and determined that the defendant Bond was duly elected to the office of sheriff of said county. The only question presented in this court is, whether the judgment of the contest court was and is sustained by the special findings of such court. Said findings, so far as they are material in the determination of said question, are as follows:
“1st. On the'4th of November 1873, Wm. H. Bond, then a candidate for sheriff, at and while the election was proceeding, did give to one Wm. S. Dent, the sum of one dollar in money, then and there to be used in the procurement of drinks of spirituous liquors for voters generally, with the intent to facilitate his (said Bond’s) election to the office of sheriff of Leavenworth county.
“2d. While said Bond was so a candidate for sheriff, he (said Bond) did promise to one Tom Bowman five dollars in money for purpose of procuring the services of said Bowman in canvassing for and soliciting and influencing votes for the said Bond for sheriff.
“3d. Said Bond, while such candidate, did say to Tom Bowman, and to other colored people, that so far as he could control, they should have an equal representation upon the juries of this county with others, and that such promise was for the purpose of enhancing his chances of election.
“ 4th. Said Bond after such election did agree and promise to pay the sum of $9.30 to Bowman & Walker for cigars, drinks, etc., drank and used by sundry persons unknown to said Bond, at and before the time of such election.
“ 5th. Said Bond at and during such election, on the 4th of November 1873, did agree to and with one Harrison Young and one Peter Green, to pay each of them the sum of five dollars for work at the polls on the day of such election ; that is, for the canvassing for votes for the purpose of facilitating his (said Bond’s), election to the office of sheriff; and said Bond did pay to said Young and to said Green each the sum of $2.50 thereof, and promised to pay the remainder.
“ 6th. Said Bond, while canvassing for a nomination for sheriff, did have some conversation with one Lawrence Kiser, in relation to the appointment of under-sheriff, or jailor. And after said election, to-wit, after the said 4th of November 1873, said Bond, in consideration of Kiser’s assisting him in procuring surety on his official bond, did promise said Kiser the position of under-sheriff, or jailor. ■
“7th. Said Thomas Moonlight, the contestor, is and was, at the time of said election, an elector of the second ward of the city of Leavenworth, in the state of Kansas.
“8th. The court do not find that there was, in any case, a bribe or a reward given or offered to any elector, directly, for his vote.
“9th. Said Bond gave to one Lafayette Collins two dollars for canvassing for votes for him (said Bond) on the said election-day, while said Bond was so a candidate for sheriff.
“ One witness, Carter, states that Bond had given him one dollar for his vote, (but still denied that he had sold it.) This Bond denies, which makes an equilibrium; but if Bond’s interest militates against his statement, it raises reasonable doubt.
“The matter of the license of one Bowman, is entirely too indefinite to make a finding on.
“The evidence of Pemberton, McCormick and McDaniels throw no light upon the issues here, sufficiently important to elicit findings.
“Of the alleged promise of positions to Eobert Jackson, Henry Duffy, and William Yoss, there is no evidence.
“The testimony of Eichard Moore, John Nolan, David Jackson, McAuliff and George Land, and of Miller, are too indefinite to base an action of the court upon, and therefore deemed not of importance in our ultimate determination.
“To sum up the findings of the court in short, they are, that the said Bond did, at, on or before such election, give and offer to sundry electors of Leavenworth county, rewards in money, etc., for the purpose of procuring the influence, cooperation and labor of such electors in facilitating his election, and procuring his success in such election.”
It is claimed by the plaintiff Moonlight, that upon the foregoing facts, and under § 85 of the act relating to elections, the judgment of the contest court should have been in his favor, and against the defendant Bond. So much of said section as applies to this case reads as follows:
“The election of any person declared duly elected to any county office, may be contested by any elector of the county: * * * 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.” (Gen. Stat. 424, § 85.)
Now the record in this case scarcely shows that any one of said persons to whom it is claimed a “bribe or reward in money, property, or thing of value,” was “given or offered” by the “contestee,” was at any time an “elector;” and the record certainly does not show that any one of them was ever a “judge, clerk, or canvasser of the election.” Nor does the record show that any person was ever given, offered, or promised anything for his vote. Indeed, the record does not show that anything was done which could by any interpretation or construction come within the implied prohibition of said statute. Wrongs indeed may have been committed, but they were not such wrongs as come within any of the prohibitory clauses of said statute. This statute was intended to prohibit the bribing of electors, as such, and to prohibit the bribing of judges, clerks, and canvassers of elections, as such; and was not intended to prohibit the paying of money or other valuable things for legitimate purposes connected with the proceedings of a fair election. A candidate for office may certainly pay the publisher of a newspaper for announcing his name as a candidate, although the publisher may at.the same time be an elector, and although the publishing of such candidacy may be done intentionally “for the purpose of procuring his [the candidate's] election.” So the candidate may also pay for a public hall in which to hold political meetings, and may pay for handbills, and for tickets, etc., etc. He may indeed employ an elector to do anything which might properly be done by any person not an elector. Now, while we do not justify all that is shown to have been done in this case, yet we do not think it is shown that any transaction had in the case was in contravention of any of the provisions of said statute. The first transaction was with Wm. S. Dent. Now it is not shown that Dent was an elector, or that any one expected that he would offer to vote at said election. And whether he was an elector or not, still he may previously have been a friend of the contestee, and working for his election prior to said transaction. He was expected to procure “drinks of spirituous liquors for voters generally,” and not merely for those who could be influenced thereby to vote for the contestee. We might proceed with each of the other transactions mentioned in the findings of the contest court, but we do not think that it is necessary. It is not shown that any elector was paid or promised anything for doing any act as an elector, and it is not shown that any judge, clerk, or canvasser of the election was paid or promised anything for doing any act as a judge, clerk, or canvasser of the election; and therefore, although wrongs may have been committed, yet they not being such wrongs as are prohibited 'by said statute, the judgment of>the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The defendant George W. Behee was charged under § 63 of the act relating to crimes and punishments with having on the 17th of July 1876, and in the night-time of said day, committed burglary in the second degree, and was thereon convicted of burglary in the third degree under § 69 of the same act. Section 69 provides that, “Every person who shall be convicted of breaking and entering, in the day-time, any dwelling-house, or other building, or any shop, store, booth, tent, boat or vessel, under such circumstances as would have constituted the offense of burglary in the second degree if committed in the night-time, shall be deemed guilty of burglary in the third degree.” The information states “ that the defendant in the night-time, the dwelling-house of one Frederick Wellhouse, then and there feloniously and burglariously did break and enter, with the intent the goods and chattels of the said Wellhouse, in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take and carry away,” etc., and also that defendant committed larceny. The question presented is, was the defendant rightfully convicted of burglary in the third degree ? It is claimed by counsel for the state that under § 121 of the criminal code, providing that “Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree -inferior thereto, or of any attempt to commit the offense,” the defendant may be charged with the commission of certain acts constituting burglary in the second degree as defined in §63 of the act of crimes and punishments, and be thereon found guilty of the commission of certain acts constituting burglary in the third degree as defined by § 69 of the same act. If the claim of the counsel for the state is good in this case, then it necessarily follows that under an information charging the breaking into a dwelling-house under said § 63 the defendant could be convicted of breaking and entering a booth of tent or boat, under § 69. Such is not the proper construction of § 121 of the criminal code. The defendant in a criminal case has the right “to demand the nature and cause of the accusation against him; ” (§ 10 of the Bill of Rights, Const, of Kansas.) He cannot be charged in the information with one offense, and be convicted of another and a different offense. Sec. 104 of the criminal code provides, that “the indictment or information must be direct ’ and certain as it regards the party and the offense charged.” Whenever the information charges an offense in one degree, and the facts therein stated necessarily include any degree inferior thereto, the jury may find the defendant not guilty of the degree charged, and guilty of a degree therein included. For instance, to convict a person of the crime of burglary in the first degree under § 61 of the crimes act, it is necessary to establish that some human being was in the dwelling-house at the commission of the crime; but if a person commits like acts, and no human being is in the dwelling-house at the time of the wrongful breaking and entering, then the offense is burglary in the second degree under § 63. Upon a charge of burglary in the first degree,- if the evidence should fail to establish the existence of some human being in the dwelling, the defendant could be convicted under § 63 of burglary in the second degree, because the facts constituting the offense charged include all the facts necessary to convict under said § 63. In such a case, the party would not be misled or surprised by the failure of the prosecutor to prove all the facts alleged. If sufficient facts were proven on the trial to constitute the crime of burglary in the second degree, under § 63, then rightfully the jury might find the defendant not guilty of the .offense of burglary in the first degree, and guilty of burglary in the second degree. The inquiry comes under this construction of §121 of the criminal code, whether the charge of burglary in the second degree, and in the night-time of said day, under § 63, includes the facts constituting burglary committed in the day-time, in the third degree, under § 69. We think not. The information expressly states that whatever the defendant did was done in the night-time. Time, under § 63, is an indispensable ingredient in the offense. It is a material and important portion of the charge. To convict the defendant of burglary in the third degree, on such an information, authorizes the introduction of evidence to prove different facts than those stated. If such practice was permitted, then a defendant would not be informed of the “nature and cause of the accusation against him,” when tried upon an information. It is only where the lesser offense is included in the greater, that a verdict can be for the lesser under an indictment or information for the greater. Burglary in the night-time, as charged under said § 63, does not include burglary in the day-time as defined by § 69 of said crimes act. One may be guilty of the latter, and not of the former; and of the former, and not of the latter. The State v. Alexander, 56 Mo. 131; Williams v. The State of Georgia, 46 Ga. 212. In convicting the defendant of burglary in the third degree, upon the facts charged in the information, the court below committed the error of assuming that burglary in the day-time, under § 69, is included in burglary in the night-time under § 63. The judgment of the court was therefore erroneous.
The counsel for the state suggests, that if the conviction in this case is set aside, as it is often impossible to prove the exact time at which the breaking and entering is committed, offenders of this class of offenses will frequently go unpunished. We answer that we are not called upon to say what the law should be, but to interpret what it is. But under our statute the fears of the counsel for the state are groundless, as § 64 specially provides for the punishment of the crime of burglary, whether committed in the day or night-time. Under § 64, time is immaterial, and evidence could be offered under an information properly drawn, of the commission of the acts of burglary in the second degree either by day or night.
The judgment of the court below must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note. The defendant Alt set up as a defense that the note was given by him to the plaintiff Glass in consideration for intoxicating liquor sold by the plaintiff to the defendant in violation of the dramshop act. The evidence upon this subject, so far as it is necessary to state it, is as follows: The note is dated, “Kansas City, Mo., March 13th 1874,” and is made payable in thirty days “at Kansas City Savings Bank.” The plaintiff testified “that the note in suit was taken by him in full payment for a certain credit given to said defendant by him upon the purchase of a barrel of whisky on the thirteenth day of February 1874;” and “that the barrel of whisky sold by plaintiff to defendant was delivered by plaintiff to defendant in the city of Wyandotte, Kansas.” The defendant testified “that the consideration for the note sued upon was one barrel of whisky;” “that the contract for the purchase of the barrel of whisky was made at defendant’s place of business in the city of Wyandotte, Kansas, and that the note in suit' was actually signed by him at the same place.” The plaintiff offered to prove “ that he held a license from the United States government, and from the City of Kansas, state of Missouri, as a wholesale liquor-dealer in said City of Kansas,” but the court excluded the evidence. There was no claim or pretense that the plaintiff ever had any license to sell intoxicating liquors in Kansas, and there was no evidence tending to show that said barrel of whisky had ever been anywhere else except in Wyandotte, Kansas. The jury found a general verdict in favor of the defendant and against the plaintiff; and also, in answer to the following interrogatory, responded in the affirmative, to-wit:
“Was the consideration of the note sued on, a.sale made within this state of a quantity of whisky by said plaintiff to defendant previous to the giving of said note without said plaintiff first taking out and having a license as grocer, dram-shop-keeper, or tavern-keeper, as provided by the statutes of the state of Kansas in cases made and provided ? ” Answer, “Yes.”
It will be seen from the foregoing, that this case falls within the decision made in the case of Dolson v. Hope, 7 Kas. 161, and not within the decisions made in the cases of Haug v. Gillett, 14 Kas. 140; Williams v. Feiniman, 14 Kas. 288; McCarty v. Gordon, 16 Kas. 35; Gill v. Kaufman, 16 Kas. 571, and Snider v. Koehler, ante, 432. The sale in this case was clearly a Kansas sale, and the plaintiff had no license to sell intoxicating liquors in Kansas, and therefore the plaintiff cannot recover. And it can make no difference that the plaintiff sold the liquor on a month’s credit, and that the note was not given until the end of such month, and was then given on the extension of time for the payment of the debt still another month; nor can it make any difference that the note was dated “Kansas City, Mo.,” (being in fact executed in Kansas,) and made payable “at Kansas City Savings Bank.” The debt for which it was given was, according to the evidence and findings, created in violation of the laws of Kansas, and therefore the courts of Kansas cannot be invoked to aid in its collection. Such note cannot be collected under the laws of Kansas.
The judgment of the court below must be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting in this case. | [
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The only opinion filed is the following:
Valentine, J.:
This was an action for “false imprisonment.” Judgment was rendered in favor of the plaintiff below, and against the defendant below, and the defendant now brings the case to this court for review. The defendant below raises three questions in this court: First, may the defendant below, for the purpose of mitigating the damages, introduce evidence, on the trial, to show, that in committing the acts complained of, he acted in good faith, and without malice? Second, may the plaintiff below recover for injuries to his character and reputation, although he has not pleaded any special facts showing any pecuniary loss on account of such supposed injuries to his character and reputation? The third question (entry of judgment before payment of jury fee,) was substantially decided in Topeka v. Tuttle, (5 Kas. 312, 324,) and I do not choose to further consider the same.
I shall now consider the first two questions; and in order to consider them intelligibly, it will be necessary to consider to some extent the nature and character of the action of false imprisonment. wFalse imprisonment is necessarily a wrongful interference with the personal liberty of an individual. The wrong may be committed by words alone, or by acts alone, or by both, and by merely operating on the will of the individual, or by personal violence, or by both. It is not necessary that the individual be confined within a prison, or within walls; or that he be assaulted, or even touched. It is not necessary that there should be any injury done to the individual’s person, or to his character, or reputation. Nor is it necessary that the wrongful act be committed with malice, or ill-will, or even with the slightest wrongful intention. Nor is it necessary that the act be under color of any legal or judicial proceeding. /All that is necessary is, that the individual be restrained of his liberty without^any.sufficient legal cause therefor, and by words or acts which he fears to disregard.; It will therefore be seen that the wrong constituting false imprisonment differs essentially from the wrongs constituting malicious prosecution, malicious arrest, assault, and assault-and-battery, though all of these wrongs’ may sometimes be united in one comprehensive and aggregated wrong. It also differs from libel and slander, and indeed from every other wrong for which an action is given. Therefore a rule of law found to be applicable to some other class of cases may not have any application whatever to an action of false imprisonment. As we have before stated, malice and willfulness are noUessential elemente of false_ imprisonment; and in this the action of false imprisonment differs from that of libel, slander, malicious prosecution, and perhaps from some others. It is true however, that malice and willfulness may belong to any particular case of false imprisonment; but when they do so belong to such particular case, they belong to it as a portion of the special facts of that case, for which special or exemplary damages may be awarded, and do not belong to the case as a portion of the general and essential facts of the case for which general damages may be awarded. In the present case I should think that the plaintiff below did not claim that the defendant below acted willfully or maliciously, and did not claim that he the plaintiff had any right to recover enhanced damages on account of any willfulness or malice. If I am correct in this, then the court below did not err in excluding the defendant’s evidence. For all that such evidence tended to prove was, that the defendant acted honestly and in good faith in temporarily depriving the plaintiff of his liberty. Such evidence did not tend to prove that the defendant acted legally.: and it could not be introduced for the purpose of diminishing the general and actual damages which the plaintiff sustained. Now, if the plaintiff had claimed enhanced damages, or, in other words, exemplary damages, on account of any willfulness or malice on the part of the defendant, then said evidence would have.been admissible in mitigation of such damages, and the court below in that case could not rightfully have excluded the evidence. .But as the plaintiff did not claim any such damages, as we infer, nor in fact any damages except general compensatory damages, I think the court below did not err in excluding said evidence.
The next question is, whether the court below erred in instructing the jury that they might assess damages in favor of the plaintiff for injuries to his character and reputation. And this question, like the one we have just considered, also depends upon the special facts of each particular case. ! Where the false imprisonment is willful and malicious, the jury may consider injuries affecting the character and reputation of the plaintiff as a foundation for awarding exemplary damages. And if the present case had been that kind of case, then the said instruction could be sustained upon that ground. But in order to sustain the ruling of the court below in excluding the defendant’s evidence, we havednferred from the somewhat obscure record that exemplary damages were neither claimed nor allowed in this case. Hence said instruction cannot be sustained upon any theory of this kind. J Exemplary damages are never allowed in any action where the wrongful act was done innocently, in good faith, and without malice.^ If there could be a case of false imprisonment where the resulting injuries to the character and reputation of the plaintiff would produce some pecuniary loss, and this loss was not too remote from the wrongful act, and the special facts concerning such injuries and such loss were properly set forth in the plaintiff’s petition, and were then proved, the plaintiff would unquestionably be entitled to recover for such loss. But that is not this case; for no facts showing any pecuniary loss from any injuries to character or reputation have been set forth in the plaintiff’s petition in this case. Therefore, said instruction cannot be sustained upon this ground. Indeed, I think it cannot be sustained upon any ground. False imprisonment is not like libel or slander where the injuries to the character and reputation are the gist of the action, and-where malice is a necessary ingredient of the action. In these respects it is wholly unlike those actions. \ Injuries to character and reputation are not essential ingredients of false imprisonment. They do not necessarily belong to the action. Indeed, they do not belong to the action at all. It is true, they are sometimes found in particular cases of false imprisonment. But then they do not belong to such cases as necessary and essential facts thereof. It would not be necessary to allege them or prove them in order to recover the ordinary and essential damages in such cases. Indeed, wherever injuries to character or reputation exist in a case of false imprisonment, they belong to such case merely as a portion of the incidental and special facts of that particular case. Now in libel and in slander, damages may be awarded for injuries to character and reputation, not only as exemplary damages because of the malice of the defendant essentially necessary in such actions, but such damages in such cases may also be awarded as general compensatory damages necessarily and proximately resulting from the necessary and essential facts 'of the action. This cannot be so in false imprisonment, for injuries to character and reputation are not necessary and essential facts of the action. False imprisonment may be committed without the slightest injury to character or reputation. Hence, in cases of false imprisonment, where the character or reputation is injured, the facts with reference thereto should be pleaded specially, and in detail. The only manner in which they are attempted to be pleaded in the present case is as follows : The false imprisonment is first stated, which shows no injury to character or reputation, and then comes the following statement, to-wit, that the said “plaintiff was then and there injured in and about his business and circumstances, and in his credit and reputation.” This is hardly sufficient. Even in an action of libel, or slander, damages for injuries to character or reputation could hardly be recovered upon such a scanty statement of facts. As before stated, there are three questions raised in this case — three grounds upon which a reversal of the judgment below is asked; and I think the judgment should necessarily be reversed, either upon the first, or upon the second ground. If with reference to the first ground, the ruling of the court below should be sustained, (as I think it ought to be,) then with reference to the second ground the ruling should be reversed. And vice versa; if with reference to the second ground the ruling of the court below should be sustained,, (which I do not think it should,) then with reference to the first ground the ruling should be reversed. The two rulings cannot both be sustained. In principle they are conflicting. I think the first ruling should be sustained, and the second overruled; and therefore, because of the second ruling the judgment of the court below should be reversed. But my brethren to whom the case was submitted have differed with me, and therefore the judgment must be affirmed.
The present Chief Justice has taken no part in the case.
Judgment affirmed. | [
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The opinion of the court was delivered by
Brewer, J.:
We are met at the outset of our inquiry in this case, by a motion to dismiss, on the ground that no copy of a case-made, and no properly authenticated transcript of the proceedings in the district court, is attached to the petition in error. We are inclined to the opinion that technically and strictly there is little in the record before us to command our attention. The latest expression of the legislative purpose in the matter of a “case-made” is found on page 274 of the laws of 1871. That provides, that the “case-made” shall be filed with the papers, and a certified copy attached to the petition in error. There is no pretense .that anything of this kind was done. Evidently, there was an attempt to prepare a case-made; but as evidently no such case was filed in the district court, and no certified copy prepared for this court. The document that comes up here contains original papers, depositions with their- notices, envelopes, etc. Nor does it appear that the paper attached to the petition in error is the original case-made, complete and perfect. The certificate of the clerk does not state that “the foregoing is the case-made, settled and signed by the judge,” but reads, “that the above and foregoing case-made contains a full and correct transcript of the files and proceedings,” etc. But it is not the function of the clerk to certify what a case-made contains. It is for him to certify that it is the case-made; and then the document will show for itself what it contains. Now he nowhere certifies that the “foregoing” is the case-made. Because the case-made contained certain matters, non constat that it did not contain certain others. The certificate of the clerk might be strictly true, and yet half of the matters which were in the document signed by the judge be omitted from this so-called case-made. A waiver of all errors, signed by the plaintiffs in error, might have been in the document signed by the judge; and the certificate of the clerk to the document before us be strictly true, although no such waiver appears in it. In this very case-made appears what purports to be a stipulation signed by counsel, agreeding to the case-made, and the approval and allowance thereof by the judge. But on the face it is apparent that this stipulation and allowance are mere copies, and not originals. They are all, including the three signatures, in the same handwriting; and it is also established by the affidavits of plaintiffs in error, on the motion to dismiss, that they are mere copies. Again, the certificate of the clerk states that the said case “ contains all the evidence introduced on the trial before the said referee by the said plaintiff and defendants, and which was reduced to writing and made part of the report of the said referee, excepting only the impeaching testimony as to the witness N. B. Blanton,” etc. Now we search in vain the report of the referee, or the' case-made, for anything to sustain this exception in the certificate. We think therefore that we cannot consider the paper attached to the petition in 'error as in strict sense a legally-authenticated case-made, within the purview of 'the statute.
We have nevertheless examined the record, to see if any substantial wrong appears therein. We have not stopped to examine any mere technical questions, nor do we affirm that there were no errors which, if the record was fully and properly before us, would not be sufficient to compel a reversal. We think these may be stated to be the facts in the case: On May 3d 1871, I. N. Sullivan, then in possession and occupancy of a quarter-section, which he was intending to enter and purchase, executed, a bond, whereby he agreed to convey to one James M. Walker, the president of the L. L. & G. Railroad Co., as trustee for said road, forty acres of said quarter-section, provided said company furnished the entrance-money for said forty acres, and also located their-road within a half-mile of Coffeyville, and completed it within a certain time; that when the time to enter said land came round, Sullivan, without seeking any assistance from the company, entered and paid for the entire quarter-section; that within a few days thereafter, Sullivan, on application, refused to deed the forty acres in accordance with his agreement; that within three weeks however of his entering the land, he agreed, in consideration of fifty dollars, the entrance-money, and five dollars interest thereon, and a bond from two individuals not connected with the road, but interested in the town-site of Coffeyville, and in having the road located and constructed through said town, to convey to him a lot to be by him selected in such town-site, to convey said forty acres to said company; that in pursuance of said agreement he and his wife executed a deed to said company of said forty acres, and deposited the same with a neighbor to be delivered to the company on the completion of the road within a certain time to Coffey ville, and the payment of the fifty-five dollars; that the company completed the road within the time specified, and within three days after said agreement gave the fifty-five dollars to the holder of the deed, who within three days thereafter gave the same to Sullivan; that Sullivan never selected the lot in Coffey ville; that the holder of the deed, without the consent of the company, returned the same to Sullivan, who still retains both the deed and the money. Now we fail to see how any substantial wrong is done to Sullivan by a decree vesting title to the forty acres in the company. The company has done what it agreed to do. It completed the road to Coffeyville within the stipulated time, and it paid to Sullivan the fifty-five dollars, which Sullivan both received and retains. The obligation of the individuals to convey him a lot may never have been performed; but until he makes a selection, he has no ground to complain because of their non-fulfillment of their agreement. It would be monstrous if he could make his own laches an excuse for withholding the deed for which he' has received all that the company agreed to give him. Can a man keep both the land, and the money paid him for it?
We have examined none of the mere technical questions in the record presented by Sullivan, for technically we think he has no standing in this court; and equitably we think he ought to have no standing anywhere.
The judgment will be affirmed.
Valentine, J., concurring. »
Hobton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Hojkton, C. J.:
This action was brought by the plaintiff in error against the defendants in error in the court below to foreclose a mortgage on certain real estate in Johnson county, given by E. M. and M. J. Bartholow to Augusta M. Bag-well, and by her assigned to the plaintiff, on July 24th, 1875. On Jan. 1st, 1875, the said Bartholows gave a mortgage on the land in controversy, as well as on land in Douglas county, to Henry Gay for the benefit of Gilbert & Gay, which was recorded in Johnson county, January 16th, 1875, and in- Douglas county, January 26, 1875. The mortgage from the Bartholows to Mrs. Bagwell was executed November 30th, 1874, and was recorded in Johnson county, December 19th, 1874. No note or bond accompanied the latter mortgage, and it purports to have been executed to secure the payment of the sum of $2,000, due and owing to G. W. E. Griffith by M. F. G. Dyer, and for which Griffith had a lien on land conveyed by -Dyer to Bagwell, on the date of the execution of this mortgage. In the suit of the plaintiff in error to foreclose the latter mortgage, Griffith & Gay answered jointly, and among other defenses alleged the foreclosure of the mortgage of Jan. 1st, 1875, in an action commenced July 16th, 1875, in Douglas county, and thereby that A. M. and J. H. Bagwell were forever barred of all rights and equity of redemption in the premises in controversy in this case, as also the plaintiff in error, who purchased, pendente Hte. The parties waiving a jury, the case was tried by the court.
The judgment of the foreclosure action in Douglas county was sustained.
The principal question now is, whether this decree of the Douglas county suit is valid and binding as affecting the Bagwells ?
I. Counsel for the plaintiff in error contend that the pro ceedings had in that court have no binding force on Augusta M. Bagwell nor James H. Bagwell, for the alleged reason that the court never acquired jurisdiction of these persons.
The petition in the Douglas county case was entitled “William L. Gilbert and Henry Gay v. Elijah M. Bartholow, Mary J. Bartholow, Mary E. G. Dyer, Augusta M. Bagwell and James H. Bagwell.” Service was made out of the state on the Bagwells, under §1, ch.113, laws of 1871. The point is made that the affidavit of N. T. Stephens is fatally defective, because he states therein, as the predicate for service, that Augusta M. Bagswell and James H. Bagswell claim some interest in the subject-matter of the action, and that said Augusta M. Bagswell and James H. Bagswell are non-residents, etc.; and that service and proceedings based thereon are not binding against the Bagwells, as Bagswell is not Bag-well ; that the words are not idem sonans, and that they do not signify the same persons.
The objection is not well taken. There is not the same or as much difference between “Bagswell” and “Bagwell” as between “Brimford” and “Binford,” cited in Entrekin v. Chambers, 11 Kas. 368; but, aside from the rules of the orthography and orthoepy of the two names, the additional facts in this case present a very different question from that in Entrekin v. Chambers, supra. The affidavit of Stephens correctly uses the names of the Bagwells in the title of the cause, and also in the body of the same, stating who are sued. Where the names first occur, and when they occur the second and third times, the affidavit states, “and the said Augusta M. Bagswell and James H. Bagswell.” The word said clearly shows who were- meant. The summons was directed to Augusta M. Bagswell and James H. Bagswell, but it was personally served on Augusta M. Bagwell and James H. Bagwell, on July 30th, 1875, in Kansas. City, county of Jackson, and state of Missouri*, by delivering to eacli of them a copy of it and leaving the same with them. These proceedings, if irregular, are not void, and cannot be attacked collaterally.
II. It is further objected that said service is void, because no copy of the petition was served with the summons as required by section 76 of the code of 1868; that chapter 113, laws of 1876, is invalid, and said section 76 still in force. Counsel is here again at fault. Section 1, chapter 113, laws of 1871, takes the place of section 76 of General Statutes, 644, and the original section 76 is by virtue of section 16 of article 2 of the constitution repealed. Said section 16 of article 2 of the constitution of the state has been literally complied with in the passage of said section 1, chapter 113, laws 1871. The new act of 1871 contains the entire section amended and now in force, and by the concluding provision of said section 16 of the constitution, the original section no longer exists. By the amendment the old section is stricken out and the. amended section inserted, and the whole is to be treated as a. single statute. It is not necessary, as counsel argue, that the new act should repeat the words of the old section. It is sufficient if the. new act shall contain the entire section amended. Neither is it necessary that the new act should contain the words, “that the act amended be repealed.” The repeal follows by virtue of section 16 of article 2 of' the constitution. (Burgess v. M. C. & N. W. Rld. Co., 18 Kas. 53, 57; Comm’rs of Jefferson Co. v. Hudson, 20 Kas. 71, 75.) Under said chapter 113, no copy of the petition is required to be served with the summons.
III. It is also objected that the decree of foreclosure did not bar or cut off the rights of Mrs. Bagwell under the mortgage of November 30th, 1874, as it was prior to the mortgage foreclosed in Douglas county, which- was executed January 1st, 1875. The petition filed by Gilbert & Gay, averred that the interest or lien the Bagwells had in the lands sought to be foreclosed, accrued subsequently to and was inferior to that of said plaintiffs. . To this petition the Bagwells had their day in court. The judgment finds.due service of summons on Mrs. Bagwell, and bars all the defendants in that suit and all persons claiming under them, or any or either of them, since the commencement of the action, from all right in the mort gaged premises, and in each and every part and parcel thereof. This included Mrs. Bagwell, and is also effective against the plaintiff in error, who took an assignment of the mortgage of Mrs. Bagwell during the pendency of said action. This instrument was non-negotiable, and was taken by the plaintiff in error subject to all the defenses against it. He stands in Mrs. Bagwell’s shoes, and is therefore bound by the decree. (Short v. Nooner, 16 Kas. 220.) That a single lien-holder has the right to bring in as parties defendant other lien-holders, and litigate as against them the validity and extent of their alleged liens, see Bradley v. Parkhurst, 20 Kas. 462.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This is a proceeding in the nature of quo warranto, to oust from office the county commissioners, .sheriff and probate judge of Harper county. The confessed object of the institution of the action is to legally determine whether the county of Harper has a valid organization as a county. The records of the organization of August 20, 1873, would seem to be regular and valid upon their face; yet it is admitted, by all parties to the suit, that these papers were forged; that there were not twenty residents or householders in the county at the signing of the memorial or the taking of the census. The records purporting to show a valid organization, are simply “the refuge of lies and the hiding-place of falsehoods.” If this were all that is apparent in the case, then, within The State v. Ford County, 12 Kas. 441, and The State v. Sillon, ante, p. 207, we would be compelled to hold the organization of the county void, and the defendants to be wrongfully exercising the duties of their respective offices. . But the legislature has intervened since the so-called organization was had, and by its action recognized, ratified and made valid that which was fraudulent in its inception.
At its session commencing January 10th, 1874, William H. Hornor was admitted as a member of the legislature, and as a representative therein from said county of Harper, and served as such member during the entire session of 1874.
By section 28, chapter 77, laws of 1874, the board of county commissioners of Harper county was authorized and empowered to issue and sell or exchange the bonds of the county, to an amount not exceeding the sum of $15,000, or so much thereof as might be necessary, for the purpose of funding certain outstanding county warrants to pay the current expenses of the county for the year 1874. This act presupposed the existence at some prior time of a county organization and a county tribunal that transacted county business. From August 20, 1873, to September 1, 1873, there was at least a de facto organization of the county in existence. The governor then recognized the organization as valid, and had it proclaimed to be valid and complete. Within the authority of The State v. Pawnee County, 12 Kas. 426, the legislative recognition of the validity of such county organization made the same valid, although the original organization was defective and fraudulent. It is contended, however, by the counsel for the state, that if a de facto organization was instituted on the 20th of August, 1873, it was only temporary; and that as there never was any election in the county since, and as there have not been, since about September 1, 1873, up to August 5, 1878, any officers in the county, the said temporary and fraudulent organization ended in September, 1873, and the legislative recognitibn in 1874 had no effect to legalize or validate it.
The reasoning is not sound. Eor a time, though a brief one, a de facto organization actually existed. The legisla ture, having the whole control of the matter, recognized such organization, and thereby ratified it. Whatever the actual facts may be, we are bound to presume that the legislature-of 1874 had full knowledge of the situation of affairs in the-county, and passed the act of that year with a complete understanding of its consequences. The removal of the officers from the county, and the failure to elect officers, did not blot out or destroy the organization, given life by legislative recognition.
Judge Dillon says: “Municipal corporations may become inert, or dormant, or their functions may be suspended for want of officers or of inhabitants, but dissolved, when created by any act of the legislature, and once in existence, they cannot be, by reason of any default or abuse of powers conferred, either on the part of the officers or inhabitants of the incorporated place. As they can exist only by legislative sanction, so they cannot be dissolved, or cease to exist, except by legislative consent, or pursuant to legislative provision.”' (Mun. Corp., vol. 'l, §112.)
The same principle is applicable to counties, which are quasi municipal corporations, created by the sovereign power of the state, of its own sovereign will, for the purposes of civil administration.
The point made,'that there never was any de facto organization, for the reason that the persons appointed special county officers in August, 1873, were not residents and qualified electors of the county, and were never there, is not well taken, as the record of the case does not support this assertion. The answer alleges, that these officers were appointed by Governor Osborn, and afterward removed from the county, and these allegations are admitted to be true.
. Judgment will therefore be duly rendered in favor of the defendants for all costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action to recover the possession of certain goods alleged to be the property of the plaintiff, as assignee of S. P. Lindgren, under the provisions of the act regulating voluntary assignments for the benefit of creditors, approved March 3d, 1868, and alleged to have been wrongfully taken and detained by the defendant in error, J. R. Dean. The answer consisted of a general denial. On the trial the defendants introduced evidence that the goods were the property of Lindgren; that they had been seized under attachments and executions against him by Dean, as sheriff, and that the assignment to plaintiff in error was fraudulent and void. To the introduction of this evidence, the plaintiff objected, on the ground that the facts tending to prove bad faith and collusion between the parties had not been pleaded; and he now assigns the admission of this character of evidence as error. We do not think the point well taken. It is true that under the practice in many of the states a defendant cannot, under a general denial, introduce testimony that the plaintiff’s title is fraudulent and void, but under our code the action of replevin is for the wrongful detention. That is the main <luest10n In issue. Under the general denial, the defendants could show that the plaintiff was not entitled to the immediate possession of the property, and this they could do by showing that the sheriff was entitled to the exclusive possession of the property. Under their general denial, they could show that the sheriff did not wrongfully detain the property, and this they could do by showing that he rightfully detained it. If the deed of assignment was fraudulent and void, then the plaintiff had no claim or interest in the property and was not entitled to the possession thereof, as assignee. So, if this fact could be established by evidence of extrinsic circumstances, it fully disproved any wrongful detention on the part of Dean, and clearly proved that he rightfully detained the goods so held by him, on process against Lindgren. (Leroy v. McConnell, 8 Kas. 273; Wilson v. Fuller, 9 Kas. 176; Bailey v. Bayne, 20 Kas. 657; Yandle v. Crane, 13 Kas. 344.)
Another assignment of error is) that the court erred in permitting the defendants to assail the assignment as fraudulent, by offering evidence that the assignee was insolJ ° ° vent, and his character for honesty and fair dealpac|_ This evidence was admissible. While the power to select and appoint his own assignee is one which our statute of 1868 allowed to every debtor contemplating a disposition of his property, this power is not to be exercised arbitrarily and without a proper reference to the interests of the creditors. Hence, if the assignee be so deficient in business capacity or standing, in pecuniary responsibility or character for integrity, that a prudent man, honestly looking to the interest of the creditors alone, would not likely select him as a proper person for the performance of the trust, then his selection will furnish an inference, more or less strong, according to the circumstances, that the assignor in making the selection was actuated by some other motive than the desire to promote the interest of creditors; in other words, an inference of intent to hinder, delay, or defraud his creditors. If the assignment was made with this intent, the transaction was fraudulent. (Burrill on Assignments, 66; Angell v. Rosenbury, 12 Mich. 241.)
It is contended by counsel for the plaintiff that, as the assignee is required to execute a bond with securities, the doctrine above stated ought not to prevail in this state. In this case the assignment and all the proceedings had thereunder took place prior to the adoption of the supplemental act of March 1st, 1876. (Laws of 1876, ch. 101, p.202.) And the mere fact that the assignee is compelled to give a bond that he will faithfully execute the trust confined to him does not relieve the assignor from the exercise'; of prudence in making his selection. A bond is some protection, and perhaps the fact that the assignee is insolvent, if otherwise suitable and competent within our statute, might not be sufficient evidence to declare an assignment fraudulent; yet an action on a bond would be a very unsatisfactory way for a creditor to obtain his portion of a trust fund. Indeed, if a creditor knew or believed he would be compelled to resort to litigation with an assignee to recover the demands allowed him, he would be more apt to seek a compromise or assent to such a settlement as the debtor might choose to offer, than if he was assured from the responsibility and high character of the assignee that the trust would be promptly and honestly discharged. Under the supplemental act of 1876, which empowers the creditors to select an assignee and authorizes the judge of the district court to appoint a receiver to take and hold possession of the property assigned, where the assignee is not responsible for the amount of the property, the evidence so received, if not absolutely inadmissible, would have but little weight or force in proving an assignment fraudulent. Under the act prior to this amendment in 1876, the evidence was clearly competent.
Further assignment of error is alleged in the direction of the court, that persons in a solvent condition cannot make an assignment. As thus stated, the instruction was too general, and might have been misleading, had it not been limited, and explained by the court to the effect, “that if Lindgren, when the assignment, was made, was in possession of means of any kind with which or out of which he could himself at once discharge all his liabilities in full, or out of which his creditors could collect all their debts by legal process, then he was not insolvent to that degree that would warrant his making an assignment and preventing his creditors from collecting their debts by the ordinary process of law.” In other words, the jury were directed, that “a debtor cannot lawfully husband his property through the medium, of an assignment for his own benefit to the delay of his creditors.” To prevent the abuse of the right, and avoid an assignmeut being made a convenient engine of fraud, the law does not permit a debtor, who beijevjng himself fully solvent, and actually having resources sufficient, either of cash or of property, to satisfy all his creditors in full, to assign his property, and thereby withdraw it from attachments and executions of creditors, with the motive to obtain a compromise, or to procure an extension of time so as to save a larger surplus to himself. As explained and limited, the direction of the court was not sufficiently prejudicial to the plaintiff to cause'a reversal of the judgment.
As the jury returned special findings that the assignment of Lindgren to Holmberg was made with the intent to gain time, and to hinder and delay creditors; and when the assignment was made, that Lindgren had means and property, not exempt by law, sufficient to discharge all his liabilities in full, and out of which his creditors could have collected all their debts by legal process, the other instructions of the court, criticised by counsel, need not be commented upon, as they could not have injuriously affected the plaintiff.
We have examined all the other questions raised by counsel, but do not think any special comments are required thereon.
The judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer., J.:
On the 21st day of March, 1877, the defendant in error commenced a suit in the district court of Bourbon county against the plaintiffs in error, to remove an alleged cloud upon the title to eighty acres of land owned by him in that county, and to set aside certain deeds which the plaintiffs in error had to the land. The plaintiffs in error were non-residents of the state. Service was had by publication. The answer-day expired April 26th, but no answer-was ever filed. April 26th the plaintiffs in error left with the clerk of the court two papers — a petition and bond for removal of the case to the United States circuit court. June '9th, the case was tried and judgment rendered as prayed for in the petition. August 20th, the plaintiffs in error filed a motion to set aside the judgment, alleging that the court had no jurisdiction of the case at the time it was tried. They •claimed this want of jurisdiction solely on the ground that they had filed the petition and bond for removal. September '24th, the court refused to set aside the judgment.
The plaintiffs in error bring the case to this court, and •claim that the court below was ousted of its jurisdiction of the case by the filing of the petition and bond for removal. If that be the case, the judgment of the court below should be reversed. But before a reversal can be ordered in this •court, it must appear from the record that the jurisdiction of the district court had ceased. That it had once acquired jurisdiction, the record unquestionably discloses. Had that jurisdiction been terminated? It had not, most clearly, unless the United States court acquired or could acquire jurisdiction • and only of certain classes of cases can that court take jurisdiction. Citizenship and amount in controversy are important factors in determining whether any given case is one of which the United States court can take jurisdiction.
What does the record show in respect to these matters in this case? The petition filed by the plaintiff below contained no allegation of value, or of the citizenship of the parties. It alleged that plaintiff was in possession of the realty, but possession by tenant would have satisfied the requirements of the pleading. Service was made by publication, and an affidavit of non-residence of the defendants was filed, but this contained no intimation of the actual residence of either defendant. So far as the case disclosed prior to the filing of the petition and bond for removal, plaintiff and defendants might all have been citizens of the same state, and the value of the land as well as the consideration of the deeds complained of, less than five hundred dollars.
The petition for removal, which was not verified, stated that plaintiff was a citizen of Indiana, Goddard of' New Hampshire, and Corbin of New York; that defendants claimed full title to the land by reason of the deeds complained of, and that the land was of a value more than'$500, to wit, $1,000, and prayed a removal to the United States circuit court. The bond accompanying was in the penal sum of $100, was conditioned according to law, and was signed by two parties as sureties. The defendants did not sign the bond. The amount of the penalty was settled by no court or officer. There was no qualification of their solvency by the sureties. The bond was executed before no one; there was no approval of the sufficiency of the sureties by clerk or court. Indeed, there was nothing, other than the fact that two names were written on the bond, to show that such sureties resided in Kansas; that they were worth a dollar, or even that they had any existence. The papers were filed in vacation. No motion was made to the court for a removal, and, for aught that appears, the court at the date of the judgment was entirely unaware of the existence of any such papers or application. At the hearing of the motion to vacate the judgment, the affidavit of the two sureties was filed, stating that they were each residents of Bourbon county, and worth $1,000 above all debts and exemptions. But no evidence was given as to the citizenship of the parties, or the value of the land or the consideration of the deeds. We believe that embraces all the facts in the record bearing uj3on the question. Did the district court err in its rulings? The law of congress applicable thereto, is as follows:
“Sec. 2. That any suit of a civil nature at law or in equity, now pending or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and in which there shall be a controversy between citizens of different states, either party may remove said suit into the circuit court of the United States for the proper district.
“Sec. 3. That whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit mentioned in the next preceding section, shall desire to remove such suit from a state court to the circuit court of the United States, he or they may make and file a petition in such suit in .such state court before, or. at the term at which said cause could be first tried, and before the trial thereof, for the removal of such suit into the circuit court to be held in the district where such suit is pending, and shall make and file therewith a bond with good and sufficient surety for his or their entering in such circuit court on the first day. of its then next session a copy of the record in such suit and for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto, and, also, for their appearing and entering special bail in such suit, if special bail was originally requisite therein. It shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit.” (Desty’s Federal Procedure, 72, 73.)
Now the method prescribed in the last section for obtaining a removal, is by the filing of a petition and bond. This petition may be nothing more than a petition, a simple request for removal. Indeed, that is all the statute would seem to imply. It is nowhere stated that it must contain a full showing of the facts entitling the petitioner to a removal, nor is it anywhere said that any such showing is to be taken as conclusive. But the petition, the request for removal, amounts to nothing unless the case is one that can be removed. Where the amount in controversy is only one hundred dollars, the United States court cannot take jurisdiction, ■ and the filing of a petition for removal does not divest the state court of jurisdiction; and the same is true where the parties are citizens of the same state. In many actions the pleadings disclose the amount in controversy, and in some cases the citizenship of the parties appears somewhere in the proceedings. In such a case the mere filing of the request for removal may be sufficient, for there upon the face of the record it appears that the case is one of which the federal court may take jurisdiction. But where upon the face of the papers nothing of the kind appears, then the state court may properly require some showing before it refrains from- further proceedings. The mere filing of a petition, unverified, and without any showing of a state of facts which would entitle the federal court to take jurisdiction, does not ipso facto oust the state court of its jurisdiction. A mere petition, unverified, proves nothing. The record as it stands in the state court may furnish the needed proof. If it does not, the party seeking the change must make it. Suppose a suit between citizens of the same state on a note for fifty dollars: can a defendant simply by filing a petition stating the amount in controversy to be over five hundred dollars, and to be between citizens of different states, and a bond for costs, oust the state court of jurisdiction ? If he can, then every petty case before a justice of the peace can be transferred to the docket of the federal court. In the case of Taylor v. Rockefeller, lately decided by Mr. Justice Strong and reported in 7 Cent. Law Journal, pp. 349 and 350, the following appears:
“It may be admitted that when the petition, read in connection with the other parts of the record, does not show a case of which the circuit court has jurisdiction, the jurisdiction of the state court is not ousted. In such a case that court may proceed. It may therefore examine the petition and record, but its judgment upon the question whether a proper case appears for removal, is not conclusive upon the circuit court.”
But if the state court may examine in one case, to see whether the case is one which may be removed, it may in all. The question is simply one of power. Concede the right to examine, and then the question in each particular case is simply whether its judgment is correct upon the facts. In Blair v. W. R. Man. Co., reported in 5 Reporter, 600, the supreme court of Nebraska says:
“ Where a petition is filed to remove a cause on the ground that it is between citizens of different states, and the facts stated in the petition are denied by answer, may the court not hear the testimony to determine whether the allegations of the petition are true? The question to be determined is one of fact, and in no manner depends on the construction to be given any law of the United States. The court having obtained jurisdiction of the subject-matter and of the parties, no valid objection can be urged against its examining the grounds upon which it is sought to oust it of jurisdiction. It is the proper tribunal to make the examination.”
In Carswell v. Schley, reported in 5 Reporter, p. 716, the supreme court of Georgia uses thisTanguage:
“The scheme of removal ordained by act of congress is open and public. It is by petition. It contemplates a taking with leave, and not furtively, by a sort of statutory larceny. The state court is to know of the proceedings for removal, and to see that they are such as the act prescribes. When they conform to the act, the court has no right or power to retain the case; and when they fail to conform in any essential particular, it has no right or power to send the case away or order it removed. Until there is a sufficient petition, there can be ño "'transfer;' and whether or not the petition, reading it in connection with the' record, is sufficient, can and ought to be decided, in the first instance, by the court whose duty it is to accept it. The acceptance or rejection of ■ the petition involves a decision upon its sufficiency.”
In Holden v. The Putnam Fire Insurance Company, 46 N. Y. 1, we find this in the opinion:
“ It was as essential for the defendant to show, upon the application to remove the cause, that it was brought by a citizen of this state, as that it was brought against the citizen of another state. The state court had jurisdiction of .the action, and it could only be deprived of its jurisdiction by proceedings in conformity with the act of congress, and upon proof presented to the court of. the facts which, under the act, determined its jurisdiction, and entitled the defendant to have the cause transferred to the circuit court of the United States.”
In Railway Co. v. Ramsey, 22 Wall. 322, which, however, arose under a prior statute of removal, and is not, therefore, conclusive upon the present question, the chief justice says: “Such a petition must state facts sufficient to entitle him to have the transfer made. This cannot be done without showing that the circuit court would have jurisdiction of the suit when transferred. The one necessarily includes the other. If upon the hearing, it is sustained by the proof, the state court can proceed no further.” And in Amory v. Amory, 5 ■Otto, 186, the supreme' court of the United States, under a like statute, holds, “that the state court having once acquired-jurisdiction may proceed until it is judicially informed that its power over the case has been suspended.” And in the case of the D. R. Const. Co. v. The D. & St. P. R. R. Co., 46 Iowa, 406, the precise question here involved was presented, and the court holds that there must be proof as well as petition. It says:'
“The petition was not verified, and there was no evidence, by affidavit or otherwise, presented to the court tending to support the allegations in the petition, that Meyer & Deneson, or either of them, were citizens of some other state than Iowa. In the absence of any decision of the supreme court of the United States, we are unwilling to hold, that merely filing a petition and bond operates as a removal of the action, or, rather, ousts the state court of jurisdiction.”
And the court then proceeds very forcibly to point out the ills to follow from such a construction .of the statute.
Again, that some evidence should be presented by affidavit or otherwise, when the record fails to disclose a case of which the federal court can take jurisdiction, receives support from the latter part of said §3. Provision is there made for the removal of cases where citizens of the same state claim title to the land in controversy by grant from different states. Ordinarily, in real-estate actions the value does not appear on the record, and so the statute reads:
“And the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court and make affidavit, if the court require it, that he or they claim and shall rely upon a right or title to the land under a grant from a state,” etc:
The value is to be made to appear, because such value does not appear by the record; but the mere statement of the party seeking á change does not show the value. It would be strange if a right could be acquired and a court divested of jurisdiction upon the mere unsupported, unverified assertion of the party seeking such right. Rights in judicial proceedings are not thus established.
But again, the statute requires a bond with good and sufficient surety. The statute does not specify the amount of the penalty. Who authorized the defendants to limit the liability on the bond to $100? — and how could the court hold that such amount was sufficient? There was no evidence tendered to the court that the sureties were worth a dollar. Is it the duty of the state court to take a bond with any penalty the party may choose to insert, and any sureties he may see fit to obtain? And if not, is it the court’s duty to make inquiry .as to the sufficiency of the penalty or the solvency of the sureties? It would be strange if when a bond is found among the papers, the duty was cast upon the court of hunting up the sureties, ascertaining whether in fact any such parties existed, and if so, whether they were worth anything. We do not understand the statute as casting any such duty upon the court. If the party seeking the removal does not feel interested enough in the matter to furnish some evidence of the solvency of the sureties, we think the court may ignore the bond, and treat it as insufficient. At the time the judgment was rendered, no such evidence was before the district court. ' Can we say the court, erred in not accepting the bond,.and holding the sureties solvent and sufficient? In short, as the case stands, we are asked to hold that the district court erred in not surrendering its jurisdiction, and declining to proceed further in the case when there was not a scintilla of evidence before it that the case was one of which the federal court could take jurisdiction, or that the bond for removal was sufficient in amount, or the sureties on it worth a dollar. We are not prepared to so hold, and think that the judgment must be affirmed.
Valentine, J., concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
At the June term, 1878, of the district court of Atchison county, defendants in error recovered a judgment against the plaintiff in error, for the sum of $1,392.44, and plaintiff in error now seeks a reversal of that judgment.- The facts of the case are substantially as follows:
On the 9th day of August, 1875, W. W. .Marbourg was indebted in a large sum of money to C. Russell & Co., a corporation engaged in the business of manufacturing. agricultural implements, at Canton, in the state of Ohio, and on that day' executed to Russell & Co., among others, the nóte sued on, being dor the sum of $1,148.68, and due Feb. 15th, 1876. On the 2d day of January, 1878, Lloyd, Son & Co., the defendants in error, commenced suit on said note against Marbourg, alleging that before the maturity of the note C. Russell & Co. indorsed and transferred the note to them for a valuable consideration, and set forth the alleged indorsement on said note, as follows: “C. Russell & Co.— Jas. S. Touner, Treas.;” and that by reason of such indorsement and transfer, Lloyd, Son & Co. became the owners of the note. Marbourg 'answered, setting up various defenses, and among others that on the 6th day of January, 1877, he paid! said note to Russell & Co. The alleged indorsement of the note by C. Russell & Co.' was also put in issue. The evidence disclosed the fact that Marbourg did pay the amount of the note to Russell & Co., in January, 1877. but at this time he knew that the note had been sold and negotiated by Russell & Co., and took from Russell & Co. an indemnification contract to hold him harmless from the payment of the note, or any liability thereon.
The only question in the case, as now presented, worthy of any consideration at our hands, is, whether the note was assigned to the defendants in error by a valid indorsement. The plaintiff in error contends that James S. Touner, treasurer of Russell & Co., had no authority to indorse and trans fer said note, and that said pretended indorsement of “C. Russell & Co., James S. Touner, treasurer,” if ever made, was in violation of the laws of the state of Ohio. We do not think the objections of counsel tenable. Under the statutes of Ohio, introduced in evidence, the corporation had the power to accept the note in the transaction of business connected with the object of its creation, and certainly, if it needed money to carry on its business, it had the right to sell and indorse said note. Such acts are embraced within the scope of the powers conferred upon it. Again, so far as the title of the defendants in error depends upon the authority of the treasurer of the corporation to indorse the -notej it is clearly sufficient. If there was any want of proof of his authority to make the transfer in the first instance, the subsequent acts of the corporation ratified all he did. The note was indorsed and discounted for the benefit of the corporation, and the proceeds thereof were used in the business of the company. We must assume that all of this was done with full knowledge of the action of the treasurer. The conduct of the corporation after the indorsement by the treasurer, in receiving the money on the sale and transfer of the note and using it in its business, so far sanctioned and affirmed-the act of the treasurer as’conferred full title to the note in Lloyd, Son & Co., and authorized them to .collect it. As the corporation, by virtue of the act of one of its officers, has received and appropriated the fruits of the contract with the defendants in error, it would not be heard to object that such officer had not authority to act. Would the maker of the note stand in a better condition to make such an objection ? We think not. (Field on Corporations, §197, and cases .there cited in the notes.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
The above case is affirmed, on the authority of the following cases: K. P. Rly. Co. v. Kunkel, 17 Kas. 145; Missouri River, Ft. Scott & Gulf Rld. Co. v. Shirley, 20 Kas. 660; K. P. Rly. Co. v. Ball, 19 Kas. 535. | [
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The opinion of the court was delivered by
Horton, C. J.:
This is an original action in the nature of quo warranto, instituted by the attorney general against the defendants, who were appointed to the offices of county commissioners, sheriff and probate judge of Pratt county, by the governor, on the 10th day of October, 1878, to require them to show by what authority they severally hold and exercise the duties and functions of their several offices. The question to be determined is, whether the county of Pratt has a valid organization as a county. The history of this county, together with the legislative mention thereof,' is as follows: It was christened and its limits defined originally by § 24, ch. 33, laws of 1867. Its boundaries were subsequently changed, and now exist by virtue of §2, ch. 61, laws of 1875. It was originally attached to Marion county for judicial purposes (Gen. Stat., § 9, ch. 28), and was afterward annexed to Ellsworth county for like purposes (§8, ch. 36, Laws of 1869). By §2, ch.79, laws of 1873, it was provided that courts were to be established in-the counties of Hodgeman, Kingman, Harper, . . . Pratt and Stafford, as soon as the same were organized; and by § 4 of this act, Pratt county, until organized, was to be attached to the county of Reno for judicial purposes. On March 14, 1874, Governor Osborn, assuming that the census authorized to be taken in the county was correctly and truly returned, and that there were in such county at least 600 bona fide inhabitants, appointed county commissioners and a county clerk for the new county, and also selected and designated Prattville as the temporary county seat. These proceedings were had apparently in compliance with § 1, ch. 106, laws of 1872. When the legislature convened in 1875, one J. M. Moore presented himself to the house of representatives, demanding a seat and claiming to have been elected to represent Pratt county. This matter was referred to the committee on elections in the house, and the committee afterward reported that the county was not entitled to representation, and the seat was declared •vacant; (House Journal 1875, pp. 145, 280.)
By §3, ch.61, laws of 1875, this county was attached to Pawnee county for judicial purposes, but the validity of this section is very questionable, as the subject thereof is nowhere referred to in the title of the act, which purports to define the boundaries of Barton and Pratt counties. By §1, ch. 159, laws 1877, section lines were made public highways in Pratt •county. '
Erom an examination of the legislative record of this •county, it will be clearly perceived, that at no time has the legislature ever recognized the organization of that county as valid or binding, nor has it ratified or made valid the attempted effort at such organization. If the county has a valid organization as a county, it must exist under the proceedings instituted under said ch. 106, laws 1872. This leads us to the question, Were these proceedings in conformity to law? The defendants confess that the memorial was not signed by forty bona fide householders of Pratt county, and that there were not twenty inhabitants in the county before or at the time the census was taken or returned.
Erom the case, it plainly appears that the whole scheme to organize the county in 1874 was fraudulent; that the governor was deceived by a false memorial and false census return. Fraud and falsehood poison the proceedings throughout, and notwithstanding the regularity of the records, within the authority of The State v. Ford County, 12 Kas. 441, all of these proceedings, being in violation of law, are void, and the pretended organization is consequently void.
The demurrer to the answer is sustained, and a judgment of ouster, with costs, will be rendered against the defendants.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This suit was originally brought before a justice of the peace by George Davidson, in his lifetime, December 16, 1876, on affidavit for replevin, alleging value at and asking for $50. This allegation of value was never changed. During Davidson’s life, suit was tried before a justice of the peace, and once in district court, where Davidson had taken the case by appeal.
George Davidson died May 13, 1877, and the suit was revived September 18, 1877, in the name of present defendant in error, in her representative capacity.
Three errors are alleged :
I. Verdict and judgment were for sixty dollars, when the allegation of value and claim were only fifty dollars. The jury found the value to be sixty dollars, but awarded no damages for the detention. The matter was expressly called to the attention of the court on the motion for a new trial, but the court overruled the motion, and rendered judgment for the possession of the property, or sixty dollars, its value. This was error. The code of procedure before justices (Gen. Stat. 789, § 62) reads:
“The affidavit of the plaintiff as to the value of the property shall fix the jurisdiction of the justice so far as such value is concerned, but the value of the property shall not be assessed against the defendant at a greater amount than that sworn to by the plaintiff in his affidavit.”
But if this were the only error, it could be corrected by a modification, and would not require any reversal of the judgment.
A second matter complained of, is in the admission and rejection of testimony. Mrs. Davidson, the executrix and widow of George Davidson, was called to the stand as a witness in behalf of the plaintiff, and testified generally and as to statements made by the defendant in the presence of said George Davidson, but did not testify as to any communication between her said husband and herself. The defendant thereafter offered to testify as to statements made to him by the deceased in the presence of Mrs. Davidson, but the court rejected the testimony. In this is claimed the error. It does not appear that the testimony of the two parties referred to statements made at the same time and conversation, but it is probably immaterial one way or the other. This is a matter regulated by statute, and by it the question must be decided; and though in this case it may operate harshly, we may not substitute a rule of our own for the express direc iion of the legislature. And this express direction seems to us clearly to sustain the rulings of the district court. The general rule is, that no one is disqualified as a witness by reason of interest as a party to the action, or otherwise. (Gen. Stat., p. 691, §319.) "With no other provision, each party would'have been competent to testify as to all matters within their knowledge. The only limitation on the plaintiff, is to be found in §1 of cb. 165 of the laws of 1872, which provides that the following persons shall be incompetent to testify: . Third, Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint interest in the action; but in no ease shall either be permitted to testify concerning any communication made by one to the other during marriage, whether called while that relation subsisted, or afterward.” Now Mr. Davidson being dead, she was no longer testifying for or against him. The only parties now interested on the plaintiff’s side were the heirs, of whom she was one, and the creditors. In testifying, she, like any other party, testified in her own behalf; none of her testimony violated the last prohibition or pretended to touch upon any communication between herself and husband. Those communications are privileged, or rather the parties themselves may not disclose them upon the witness stand, though they are competent if they can be obtained from any other source. (State v. Buffington, 20 Kas. 599.) Her testimony was therefore properly received. She was not disqualified because she was a party, nor because she was a widow, except as to certain special matters, and upon them she did not offer to testify. His testimony, on the other hand, as to the statements of the deceased, was as properly rejected. Gen. Stat., p. 691, §322, provides that—
“No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, administrator, ... of such deceased person, where they have acquired title to the cause of action immediately from such deceased person.”
That covers this case exactly. The testimony sought to be introduced was communications had personally between a deceased person and the party. The adverse party was the executrix of such deceased person, and as such executrix she derived title to the cause of action immediately from her testator. Many words could not make this plainer. The court decided in accord with the plain commands of the statute, and therefore did not err.
We have noticed these matters, notwithstanding the fact that in the remaining question we think there appears error which compels a reversal, because their decision may assist in the future trial. That remaining question is involved in the ruling of the court upon an application for a continuance. Matters of continuance are, as has been often said, largely within the discretion of the trial court, and it must clearly appear that substantial wrong has been done a party in a ruling thereon before a reversal of a judgment will be ordered. In the case at bar, while the writer of this opinion, does not think such wrong clearly shown, yet his brethren are of the opinion that upon the showing made the defendant was entitled to a continuance, and that it was material error to refuse it.
The facts are, that the case was forced to trial on the 19th of September, .the day after the revivor. Postponement was sought, to obtain the deposition of the nephew of defendant, whose testimony would, as shown by the affidavit for postponement, have been competent and material. An effort had been made to obtain the deposition of this witness at Detroit, but the notice therefor forwarded to Detroit had been returned unopened. Whether this was before the death of Davidson, we are not advised; but probably it was, as the affidavit showed that the witness had been for some months a resident of Toledo, having removed thither from Detroit. While the action stood suspended by the death of Davidson, a second effort had been made to take the deposition at Toledo. Notice therefor was mailed on September 8th, the deposition to be taken on the 15th. No deposition arriving, a telegram was sent to Toledo, inquiring the cause, to which a reply came from the witness, stating that he had been temporarily absent from the city, and requesting a new notice. From the showing, it would seem clear that the whereabouts of the witness was known, that he-was willing to give his deposition, and that in all probability it could be obtained in a few days. Under those circumstances, the court is of the opinion that the party had used due diligence, that the testimony was competent and material, and that the party was entitled to a postponement in order to obtain it. We do not understand that a party is under obligations to take depositions while a case stands suspended by the death of the adverse party, even if depositions so taken could be considered as legally taken and properly used on the'trial. But qucere: Are such depositions legally taken ? Is there any party or attorney upon whom notice therefor can legally be served ? Is not such a deposition a purely ex parte proceeding ? He is not bound to presume that a revivor will be had, and may wait until the revivor is actually made before himself taking any steps in the case. After the revivor in the case at bar, the defendant had no time to obtain this testimony, and it does not appear that he was lacking in diligence in not obtaining the deposition before the death of the adverse party. For these reasons, the court is of the opinion that it was error to overrule the application for a postponement, and compel the defendant to go to trial without such testimony, and in the judgment of a majority of the court the error is of sufficient moment to compel a reversal.
The judgment of the district court will therefore be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring. | [
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