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The opinion of the court was delivered by
Burch, J. :
The defendant below was a fraternal beneficiary society. During the lifetime of Mary Stretton, and while she was a member in good standing of one of the defendant's subordinate branches or lodges, it issued to her a beneficiary certificate payable at her death to the plaintiff, her husband. After her decease the plaintiff brought an action for the enforcement of the certificate. The petition alleged in general terms, together with other appropriate facts, that'all conditions and requirements of the certificate and of the by-laws of the society had been complied with. The answer denied this allegation, and asserted that the decedent was not at the time of her death a member in good standing, and pleaded a forfeiture. On the trial the plaintiff proved the death of the former member, introduced his certificate, and rested. A demurrer to the evidence was interposed and overruled, and the defendant then undertook to make proof of the facts relied upon for a forfeiture. The plaintiff endeavored to meet this proof by rebutting evidence. The jury made special findings of fact upon certain questions submitted to them, and returned a general verdict for the plaintiff, upon which judgment was entered. A motion for a new trial having been overruled, the defendant prosecutes error in this court.
It is insisted that, under the provisions of the certificate and of certain by-laws of the society, the plaintiff was required to prove the good standing of the deceased in the society at the time of her death as a condition precedent to recovery ; that no presumption from the issuance of the certificate could supply such proof, and hence that the demurrer to the evidence should have been sustained. Under the language of the instruments mentioned it is doubtful if this be true. They seem to require the performance of certain stated things as conditions precedent to the vitality of the certificate and the delivery of the certificate itself appears to be evidence of a compliance with such conditions ; but the matter can how be of no practical importance whatever, since, after the demurrer to the evidence was overruled, the defendant immediately entered upon a trial of the very facts which it claimed the plaintiff had failed to prove; and having brought on a trial of the omitted facts in stead of standing upon the demurrer, and having taken the verdict of the jury upon them, the status of the proof at the close of the plaintiff's case in chief is now immaterial.
On the trial it appeared that if a payment made April 3, 1900, related to the dues and assessments of that month the deceased was in good standing; but that if it was made for the month next preceding, all rights under the beneficiary certificate were forfeited. The evidence upon this question and the matters collateral to it are quite unsatisfactory, but on the whole they are best interpreted by the findings of fact which the jury made and the general verdict which they returned, and it was not error to refuse to set them aside for want of sufficient support, as various motions by the defendant demanded.
On the trial the authority of a Mrs. Allerton'fo dis-chargé the duties usually and regularly performed by the clerk of the lodge was questioned. It appeared that during the months of January, February, and March, 1900, both in the presence and in the absence * of the clerk, Mrs. Allerton habitually received and receipted for dues and beneficiary assessments in the name of the clerk, in regular meetings of the lodge, and with its knowledge and acquiesence; that during a period of time extending from February 22 to March. 13, 1900, in the absence of the clerk, she took down and recorded the minutes of meetings, collected assessments and dues, entered payments made by members on the books of the lodge, and made reports to^the supreme clerk, all with the knowledge and acquiescence of the lodge ; and that she assisted a new clerk, who took office March 13, 1900, in making up her report and in performing her duties as such clerk.
The by-laws of the order provide that subordinate lodges, so desiring, may have an assistant clerk, and in submitting the cause the court instructed the jury that conduct of the kind .exhibited by Mrs. Allerton, with the knowledge and acquiescence of the lodge, was sufficient to constitute her an assistant clerk so that payments of dues and assessments to her by a member would bind the order, whether such payments finally reached the supreme body or not.
The by-laws contain no other definition or limitation of the duties of assistant clerk than such as may be implied by the name itself. The functions of that officer must, therefore, be confined to the field of the clerk’s duties. But such functions must also be coextensive with that field. If the assistance the clerk requires should pertain to the keeping of records, the reception of dues and assessments, the giving of proper vouchers therefor, and the making of remittances to the supreme lodge, the assistant clerk may render it. Such authority necessarily follows from the power given the subordinate lodge by the laws of the supreme body to have an assistant clerk. It is in entire consonance with the requirements of the laws of the order that assessments and dues be paid to the clerk; that records be kept by the clerk, and that reports and remittances be made by the clerk; and it does not result from any delegation of power by the clerk.
The question as to whether a subordinate lodge shall have an assistant clerk is left solely to its own desire. If it so will no one can gainsay its action. The only question, therefore, is whether or not it is necessary to go behind the conduct, custom and practice of the lodge and its members and ascertain if due formality had been observed in the treatment of a matter over which they had complete control, namely, the selection of an assistant clerk. The case is not like one in which some volunteer undertakes to perform some function for the accommodation of members in a capacity not recognized by the laws of the order, as in Lazensky v. Supreme Lodge K. of H., 3 N. Y. Supp. 52. There the interfering party was purely a supernumerary, and he and the lodge, by their conduct, virtually attempted to create the office of assistant financial reporter in opposition to the provisions of the by-laws of the order.
Here the laws provide for the office and by necessary intendment bring within its scope the conduct disclosed in this record, and without such office and a person to discharge its duties the chief business of the lodge must stop while the clerk is away, members must forfeit all rights under their certificates for want of an officer to whom they may pay their assessments and dues, and the supreme body must be deprived of the funds to which it is entitled. This case, therefore, is more nearly analogous to that of Anderson v. S. C. of O. of C. F., 135 N. Y. 107, 31 N. E. 1092, the syllabus of which is as follows :
“By defendant’s constitution it is made the duty' of the secretary of a subordinate council to receive all assessments, and the council may permit him to select an assistant for whose acts he is responsible, and there was no provision requiring assessments to be paid to him in person. It appeared that it had been the common practice for members of the council to pay dues and assessments to the secretary’s wife in his absence ; he had no office and payments to him or his wife were made at his residence ; so far as appeared no question had been raised as to the authority of the wife to receive such payments. Held, that the absence of any dissent on the part of the council or its officers justified the conclusion that the uniform practice proved was known to and approved by the council; that the secretary’s wife was virtually his assistant in receiving assessments ; and so, a finding that the assessments were paid was justified.” •
Since the lodge itself, with authority to fill the office of assistant secretary in the first instance, accepted and adopted the continued service of Mrs. Allerton in that capacity, and, together with the members, recognized her as holding the office and discharging the duties of an assistant secretary, it would be unconscionable to permit the defendent now to question the regularity of her designation in order to enforce a forfeiture of its contract to pay. Therefore, the instruction to the jury was correct.
In view of the foregoing it is not necessary to discuss the requests for instructions which were refused or the giving of other instructions to which there were objections.
The misconduct of a juror, consisting in the expression of opinion in the progress of the trial, is alleged as .a reason for the reversal of the judgment of the district court. The remark made by the juror related to the identity of signatures in dispute and is quite analogous to that referred to in The State v. Dickson, 6 Kan. 209. The trial court, after a hearing upon the question, has determined that no prejudice resulted from the conduct of the juror. It was not of such a • flagrant character that prejudice will be presumed, and from the record this court is unable to declare that the verdict was affected by it; hence, the refusal to grant' a new trial on this ground will not be disturbed.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, 0. J. :
On February IB, 1901, after an acquaintance of five years and a courtship of one year, Jacob W. Nevins was married to Ella D. Har- gis. At that time he was about twenty-one years old and her age was about eighteen. Although they appeared to be strongly attached to each other, and the marriage gave promise of happiness,» a separation occurred on April 2, 1901. Very soon after the marriage his parents manifested marked hostility toward Ella, and she charges that her husband became estranged from her by the active and persistent efforts of William C. Nevins, her father-in-law. She brought an action against him, alleging that he wrongfully, maliciously, and for the purpose of separating her from her husband, enticed and procured him to become alienated in feeling and affection for her by representing to his son, commonly known as Will Nev-ins, that she was unfit to be his wife ; that she was trifling and good for nothing, incapable of loving him, and quarrelsome, vicious, and unwomanly; that she was untruthful and deceptive ; that he should abandon her, and that if he persisted in living with her he would disinherit and disown him ; that by means of these and other like misrepresentations and inducements the defendant alienated the affections of her husband and compelled him to take her to the home of her parents against her consent; that by reason thereof she has been driven from her home and has not been permitted to return. The answer of the defendant was a denial of the averments of the petition and ain allegation that the separation was due to, the fault of Ella and the members of her family.. Upon the issues joined a trial was had, which resulted in a judgment in favor of the plaintiff below for $2500.
One of the errors assigned is based upon an order permitting the plaintiff to amend her petition before entering upon the trial. The amendment consisted in the interlineation of words which, it was averred, the defendant had stated to his son with a view of alienating his affection, to wit: “That the plaintiff was and had been before her marriage unchaste in her conduct with other men.” An objection was made to the amendment, but when it was allowed no application for a continuance or postponement was made or suggested by the defendant. It was enough for the plaintiff to plead the ultimate facts as to the alienation of her husband’s affections by the defendant, and the acts done and artifices used to accomplish the alienation are not required to be pleaded ; indeed, these are largely matters of evidence by which the ultimate facts are to be proved. That being true, the additional averment of another method by which the defendant accomplished his wrongful purpose cannot be regarded as prejudicial. (Nichols v. Nichols, 134 Mo. 187, 35 S. W. 577; French v. Deane, 19 Colo. 504, 36 Pac. 609, 24 L. R. A. 387; Williams v. Williams, 20 id. 51, 37 Pac. 614; Lockwood v. Lockwood, 67 Minn. 476, 70 N. W. 784; Brown v. Kingsley, 38 Iowa, 220; Hodges v. Bales, 102 Ind. 494, 1 N. E. 692.) It was an advantage to the defendant to have a recital of the evidence by which the facts might be proved or from which they might be inferred, and it would not seem that he regarded the additional averment as a disadvantage, as no postponement of the trial was asked for by him because of being unprepared to meet the new phase of the case. Aside from these considerations, the matter of amending pleadings is committed largely to the discretion of the court, and since there appears to have been no abuse of discretion we cannot, in any view, treat the amendment as error.
Complaint is made of rulings on the admission of testimony. It was alleged, and there was testimony tending to show, that the defendant, with a view of effecting a separation, had stated that Ella sent her sister to Doctor Collins and from him obtained medicine to prevent conception. It was shown that defendant had made statements of this kind to the young husband in the presence of Ella, and when she made a denial the defendant, with much profanity and vile language, declared repeatedly that the statements, were true. She testified that they were without foundation and introduced Doctor Collins, who testified that she had not obtained such medicine from him. The testimony tended to show the animus of the defendant, and to that extent was competent. The doctor lived and practiced in the neighborhood and from him the defendant could have learned the truth. Ella told him that the charge was unfounded, but instead of inquiring as to the fact from the doctor, who could have given him correct information, he recklessly persisted in spreading poison by repeating the falsehood to his son and to others in the neighborhood.
There was objection also to the testimony of the witness Doyle, who had undertaken to effect a reconciliation between the young people. He gave the' statements made by Will and Ella when he interceded, and there is objection that these statements were made in the absence of the defendant. The declarations of the young husband, although not a party to the suit, were admissible to show the effect that his father’s wrongful interference and misrepresentations had upon his mind. It was competent not only to show the active and persistent efforts of the defendant to alienate his son from Ella, but it was'also both proper and necessary to show the effect of such efforts upon the son. For this purpose the testimony was competent. (Williams v. Williams, supra.)
There is complaint that statements made by Will to the same witness, showing the state of his feelings and a disposition to try to live with his wife again, were excluded. It appears that the statements were made some time after the action was brought, and may have been made in preparation for the trial which was soon to occur. The state of his feelings after the separation and after the bringing of the action was not valuable testimony on any issue in the case, and its exclusion was not an error. Immediately following the ruling, however, the court admitted testimony showing that the same statement was made by Will to his wife and the conversation then had between Will and Ella was detailed at considerable length, so that if the declarations had been admissible the ruling would have been without prejudice.
Testimony as to the statements of the defendant to his son were properly excluded within the rule of Eagon v. Eagon, 60 Kan. 697, 57 Pac. 942. None of the other objections to the testimony is deemed to be prejudicial or material.
The charge of the court, although attacked, fairly presented the case to the jury. Complaint is made of the refusal of several instructions, stating that even though they found the defendant had committed acts tending to alienate the plaintiff’s husband from her, yet she would not be entitled to recover if her own acts contributed to such alienation of affection. It was not a fit occasion and place for introducing the •doctrine of contributory negligence. Of course, no recovery could be had unless the alienation and separation were caused by the acts done and influences exerted by the defendant. If his efforts were the controlling cause, however, and without which no separation would have been had, she might still recover, although other causes may have contributed in some degree to the result. (Rath v. Rath, 2 Neb. [unoffi cial] 600, 89 N. W. 612.) The court, however, did not overlook these requests, and in its charge directed the jury that, before the plaintiff could recover, it must •be found that the defendant caused the separation; that it was done intentionally and knowingly, by some of the causes alleged in the petition, and that, even .if he did cause a separation, it would not be sufficient to warrant a recovery unless there was a further finding that he did so maliciously. The jury were also instructed that the law recognizes the right of the father to advise his son as to his domestic affairs, and that he might so advise his son without incurring liability for alienation, if the advice was given in good faith and from worthy motives ; that there would be no-liability in such case, even if his advice influenced a separation, and that in such case the motive of the defendant is presumed to be good until the contrary is made to appear from the evidence in the case. We find no reason to criticize the instructions given with reference to an attempted reconciliation between the young people, nor as to the measure of damages.
It is said that the court erred in telling the jury that, in assessing the damages, they might take into consideration the mental anguish, mortification, and injury to her feelings. It is contended that these are special damages which cannot be recovered under a general averment. In cases of this character, as in seduction, the mental anguish, disgrace and injury to feelings are natural and necessary consequences of the alienation and separation. They maybe inferred from the malicious injury inflicted' by the defendant, and a recovery had therefor under the general allegation of damage sustained. A special averment of damages arising from such injuries is not required. (Rice v. Rice, 104 Mich. 371, 62 N. W. 833; 19 Encyc. Pl. & Pr. 411.)
The court also instructed the jury as to exemplary damages. No complaint is made of the rule laid down, if such damages may be given in cases of this kind ; but it is contended that such damages are not recoverable, because malice, which furnishes the foundation for such damages, is a necessary ingredient of the principal cause of action, without which no recovery for compensatory damages can be had, and that to allow both compensatory and punitive damages, based on malice, would in effect be double ■damages for a single cause. There is no duplication of damages or any double allowance for the same cause. The fact that the wrong for which the action was brought is essentially malicious does not change the rule. A party is entitled to full compensation for actual losses resulting from a wilful and malicious wrong, but exemplary damages are allowed upon a wholly different principle. They rest upon the right to punish a wrong-doer, and not on the right of an individual to compensation for wrongs done to him.
“They are not given upon any theory that the plaintiff has any just right to recover them, but are given only upon the theory that the defendant deserves punishment for his wrongful acts, and that it is proper for the public to impose them upon the defendant as punishment for such wrongful acts in the private action brought by the plaintiff for the recovery of the real and actual damages suffered by him.” (Schippel v. Norton, 38 Kan. 567, 572, 16 Pac. 804.)
In this case, taking the testimony which was accepted by the jury, there was more than malice involved in the action of the defendant. His conduct was wanton, high-handed, and oppressive, and it is well established by a long line of decisions in this state that wherever the elements of fraud, malice, gross negligence or oppression mingle in the contro versy the law allows exemplary damages. (Cady v. Case, 45 Kan. 738, 26 Pac. 448, and eases cited.)
To sustain the verdict, it is unnecessary to attempt a detailed statement of the acts of the defendant. It is sufficiently shown that he had and exercised a dominating influence over his son, and that he had determined to effect a separation of the young people, with or without justification. The son hesitated in believing the imputations made by his father against the conduct and character of his wife, sometimes protesting and sometimes crying, but he appeared to lack the manliness and courage to resent them or to protect her. He weakly yielded to the aggressive conduct of his father, who compelled him to put his young wife in a wagon and take her to her parents, and to be sure that there was no change of purpose or turning back he accompanied them, ordered her out of the wagon at her mother’s home, and in a cruel and abusive manner charged that she had been guilty of gross wrongs and offenses. It is but fair to the defendant to say that he denied many of the things attributed to him, but the testimony of the plaintiff below was accepted by the jury and is sufficient to support the verdict. Prom the testimony, Ella appeared to be very much attached to her husband, and there was no attempt to prove her guilty of any of the things with which her father-in-law had charged her. Nothing in the affidavits presented for th,e purpose of obtaining a new trial warrant the setting aside of the verdict, nor do we find any error which would justify a reversal.
The judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
In his petition the guardian of Sarah M. Figley presented to the district court a mortgage on the real estate in controversy, executed by him in pursuance of an authority conferred by the probate court having general jurisdiction of the estate of his ward, and prayed that it be declared to be a void thing, creating no rights and no liabilities and binding upon no person and no property whatsoever. This judgment was asked against the privies in estate of the mortgagee. In the case of Johnson v. Figley, the mortgagee presented the identical instrument, together with the probate proceedings upon which it was based, to the same tribunal, and asked to have it declared a valid thing, creating just obligations in his favor, rightfully enforceable against Sarah M. Figley and Samuel Huston, as her guardian, who were parties to the cause, and asked to have it declared a first lien upon the .very land involved in the present suit.
In this case the ground of relief is that Sarah M. Figley had a special interest in the land which prevented the mortgage from becoming effectual for any purpose. In the former suit the ground of relief was that Sarah M. Figley had no interest in the land which prevented the mortgage from becoming effectual as security for the mortgage debt. The court, the parties, the land, the mortgage and the issues of law and of fact are identical in both suits. A decision has been rendered in each one. What difference of power in the court to pronounce its judgment is disclosed by the two cases ?
By the act of bringing suit, the guardian necessarily affirmed that the district court had jurisdiction to decide upon the validity of the mortgage as a lien upon his ward’s land. If it had no such authority, no reason existed for invoking its action. In order to obtain a decision in his favor, however, he was obliged to importune the court to repudiate the jurisdiction it had lately entertained of the identical matter in a suit brought against him by the predecessor in interest of his present antagonist. In the latter case the guardian is plaintiff and succeeds. In the other he was defendant and was defeated. What increment of authority did the court possess in the last case over that which it enjoyed before? If in the first case the court-had declared the mortgage to be void and had refused to order a sale of the land, would its judgment have been a nullity because of want of jurisdiction? If not, and if the court had power to make a decision, with what paralysis was it smitten when the decision commenced to fall upon the other side? These questions the guardian does not attempt to answer.
It is frankly conceded that the district court has jurisdiction to foreclose mortgages, but it is said that a court cannot give effective judgment upon a cause or subject-matter not brought within the scope of its judicial power, and the case of Gille v. Emmons, 58 Kan. 118, 48 Pac. 569, 62 Am. St. Rep. 609, is cited, in which it was held that a matter not presented by the pleadings was coram non judice. The proposition is true and the case was well decided; but in this case an express allegation of the- petition challenged the guardian and his ward to defend any interest they might claim in opposition to the validity of the mortgage, made the question of an alienation of a homestead without the joint consent of husband and wife an issue, brought it directly to the attention of the court and within its judicial power, and invoked a decision upon the subject so submitted.
It is said that the record shows upon its face that the land was outside the scope of the district court's authority, within the purview of certain statements made in Rogers v. Clemmans, 26 Kan. 522. The proceedings reviewed in that case were instituted under the law authorizing the appropriation of the land of intestates to the payment of their debts. An administrator had paid the preemption price of certain real estate- entered by the decedent, and thereby had acquired a title which, under the laws of the United States, passed to his heirs, and a patent to that effect had been duly issued. The heirs were not notified of the proceeding to sell the land, and the court said:
“No notice to the persons interested in the estate-was given or published, and as notice, so far as the heirs are concerned, is jurisdictional, the order of sale and.the proceedings based thereon, being without notice, are void. (Mickel v. Hicks, 19 Kan. 578, 21 Am. Rep. 161.)”
This is the substantial basis of the decision. Mr. .Justice Brewer regarded the remainder of-the opinion as dictum and refused to subscribe to it. Such matter, however, without any examination of its logical ground, was made the basis of a commissioners’ decision in the case of Coulson v. Wing, 42 Kan. 507, 22 Pac. 570, 16 Am. St. Rep. 503, and in its defense it may be said that the land of the heirs was no more subject to the payment of the decedent’s debts than the land of a stranger to the family would have been. It required no investigation of facts and the solution of no problem of law to determine to whom the land belonged. The land department of the United States had.forestalled any controversy over that matter. So much being settled incontestably, the question of the liability of the land for the debts of one whose estate never included it was not even debatable. The court could not follow the law and sell that land any more than it could subject the land of the intestate to the payment of debts other than his own. The face of the proceeding disclosed this state of affairs.
In the case at bar there is nothing in the record of the first suit to show that the property was a homestead at the time the mortgage was executed. True, the court finds that the land was a homestead at the date of the judgment, but that is not sufficient. No retrospective inference is deducible from that finding. The residence of the parties might have changed many times between the date of the mortgage and the date of the judgment (see authorities cited in Topeka v. Chesney, 66 Kan. 480, 71 Pac. 843), and instead of the proceedings disclosing, at their inception, as an undisputed fact, that the subject-matter of the controversy was beyond the grasp of the court at all, they presented an issue with respect to a matter the court was compelled to investigate and decide — not as preliminary to jurisdiction, but as of the essence of the cause. Therefore, the case of Rogers v. Clemmans, supra, cannot apply.
It is said that the district court had no power to order a sale of the land in the foreclosure suit because its jurisdiction in that respect is fixed by the. constitution as rigidly as it is by statute with respect to the punishment which may be imposed upon persons convicted of crime, and reference is made to the cases of Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872, and Hans Nielsen, Petitioner, 131 U. S. 176, 9 Sup. Ct. 672, 33 L. Ed. 118. The doctrine of those cases was approved and followed in the case of In re McNeil, ante, page 366, 74 Pac. 1110, decided January 9, 1904, in which a prisoner sentenced to a fine and imprisoment under a statute allowing only a fine or imprisonment was discharged by habeas corpus. But these authorities throw no light upon this casé. In pronouncing sentence the court has the statute before it, and is bound by the unquestioned and unquestionable letter of its provisions. It has no investigation to make or independent conclusion to form, and any transgression of the language of the law is inoperative and void. In this case it was necessary to ascertain the fact of homestead as any other uncertain question depending upon disputable evidence, and to determine as'a serious and unsettled matter of- law what facts are essential to joint consent. Neither constitution nor statute could dispense with an investigation of the facts, and neither constitution nor statute could furnish the conclusion which the district court should derive when the facts were found. It was compelled to act without guide, upon its own judgment and responsibility.
In the case of Bigelow v. Forrest, 9 Wall. 339, 19 L. Ed. 696, a court having jurisdiction of a life-estate only undertook to dispose of the fee, as if a justice of the peace with jurisdiction of causes involving no' more than $300 should undertake to render a judgment for $1000. The cases of Elliott et al. v. Frakes, 71 Ind. 412, and Hutchinson v. Lemcke et al., 107 id. 121, 8 N. E. 71, are disposed of by the discussion of the case of Rogers v. Clemmans, supra. In the case of Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 78 Am. St. Rep. 334, the court had no authority to proceed at all. Other decisions cited on behalf of the guardian are as readily distinguishable as those just referred to, and still others afford no aid because they are couched in those generalities which are always the refuge of vague thought.
It adds nothing to the argument in favor of the guardian’s position to descant upon the mandatory, peremptory, inexorable and inescapable character of the constitutional provision. The petition in the first action presented for the ultimate determination of the district court the questions : Did it have before it a mortgage given by the joint consent of husband and wife ? Did that mortgage cover premises occupied as a residence by the family of the owner ? Upon a trial, it so determined the facts that the interdiction of the constitution could not fall upon its advancing to a sale and conveyance of the land. Therefore, the first judgment was not open to attack in- the second suit.
The guardian’s case is presented, however, as if the findings of the court in the first case,.when fairly construed, disclose the fact that the land was a homestead at the date of the mortgage, as well as at the date of the judgment; that the language of the finding that a portion of the land <£is” a homestead,'was not intended to betoken a nice discrimination of time, but that it referred broadly to the entire transaction under investigation, and that a decision upon any other interpretation of the record must rest upon a quiddity.
If this view of the record be adopted, the questions propounded at the beginning of this discussion again' arise. The court was under the legal necessity of investigating the truth of the facts alleged in the mortgagee’s petition. At the close of’the investigation, it was under the legal necessity of making a decision as to whether the mortgage was valid or not. The question was, Did the facts found disclose joint consent of husband and wife, within the meaning of the law; was such consent personal or could the guardian express it ? The guardian and the mortgagee were each ■demanding judgment. This court by mandamus could have compelled a decision to be made. Was the decision for the plaintiff without jurisdiction, and void, while a decision for the defendants would have been with jurisdiction and valid? Such a conclusion would be utterly illogical under any rational theory of jurisdiction, and all attempts to justify it would necessarily confuse and befog the law. It could not be drawn, except through an undiscriminative and misconceived use of the modern doctrine that jurisdiction is limited to power to render the particular judgment in the particular case. Such a misinterpretation of that doctrine was censured by this court in the case of Watkins v. Mullen, 62 Kan. 1, 5, 61 Pac. 385, 386, 84 Am. St. Rep. 372, in the following language :
“In the opinion of the court of appeals a quotation is made from one of the notes in 12 A. & E. Encycl. of L. (1st ed.) 247, as follows : ‘There is a tendency in the later decisions in the United States to hold that jurisdiction is not only the power to hear and determine, but also the power to enter the particular judg ment in the particular case.’ If by this is meant that when a court invested with general jurisdiction over a particular subject-matter wrongly applies the law to a proved or admitted state of facts its judgment is outside its jurisdiction and subject to collateral review, we unhesitatingly say that no such tendency is to be obsei’ved in the later decisions, because such a tendency, instead of modifying the general rule or introducing an exception to it, would go to its absolute subversion.”
The principle involved in the case at bar is precisely analogous to that upon which the case of Randolph v. Simon, 29 Kan. 406, 411, was determined. A debtor had been committed under an execution against the person. He was entitled to a discharge, upon terms, ■in case of his inability to perform the act or to endure the imprisonment. Under an application made upon notice to the execution creditor, he was given leave to go to Illinois on account of the sickness of his wife. In a suit brought upon the debtor’s bond for a breach of prison bounds in going to Illinois, the question was, What is the legal meaning of the term “inability,” as applied to the facts? In finally deciding the case, Mr. Justice Brewer said :
“Now it is claimed that this order was void; that the inability referred to in the statute is a personal and physical inability ; that no such inability was alleged ; and that therefore the court had no power to act. We cannot assent,to this. Power is given by the statute to the court to grant a discharge on account of inability. Application was made under this statute. Notice of the application was given to the adverse party. Both parties were present, a showing was made, and the court acted. There was therefore a hearing before a competent tribunal, with jurisdiction of both parties ; and the order made after such hearing cannot be adjudged void. Whether the court erred in its ruling upon the facts, whether the order was or was not erroneously made, can only be determined by proceedings in error. As long as there was enough to challenge judicial action, the order cannot be declared void in a collateral proceeding. (Burke v. Wheat, 22 Kan. 722; Bryan v. Bauder, 23 id. 95 ; Hodgin v. Barton, 23 id. 740.)”
In the case of Burke v. Wheat, referred to, the syllabus reads :
“Where a court has jurisdiction over the subject-matter of an action, and over the persons in the case, no-error in its exercise can make the judgment void.
“Mere irregularities or errors in judicial proceedings afford no ground for an injunction to restrain the collection of a judgment; nor can such irregularities or errors be revised or corrected in such an action.”
And in the case of Bryan v. Bander, supra, Chief Justice Horton said :
“The filing of a petition and giving notice to the heirs are jurisdictional acts. The action of the court is upon the petition. All parties interested, after due notice, are required to come in and oppose the application. The statute contemplates a hearing of parties, and an adjudication upon the subject of the petition. Whether the petition is in proper form, or sets forth sufficient facts, are matters for the determination of the court in the exercise of its jurisdiction. ' Of course, if a mere blank paper is filed as a petition, jurisdiction would not attach, because there would be nothing for the court to act upon; but when a petition contains sufficient' matters to challenge the attention of the court as to its merits, and such a case is thereby presented as authorizes the court' to deliberate and act, although defective in its allegations, the cause is properly before the court, and jurisdiction is not wanting. This principle underlies all judicial proceedings.”
In the foreclosure suit it was by no means obvious that joint consent of husband and wife did not appear. It required an interpretation of the constitution to ascertain if it permits a guardian to join his ward in a conveyance of her homestead. The law was in dispute, and the very end and aim in view in the establishing of the district court was that it should determine the law between litigants. Hence, the decision of this court in the case of Wolfley v. McPherson, 61 Kan. 492, 496, 59 Pac. 1054, 1055, is precisely pertinent:
“In this case a judgment was rendered against a party upon a claim which she did make. In stating to the probate court the character of her claim she appropriated in her behalf the provisions of the law assigning it to the second class. The jurisdiction of the probate court was thus invoked, not only as to the existence of the claim, but as to the priorities of classification to which it was entitled. The statute regulating the matter of classification is not plain. It required construction to ascertain its meaning, and this court, subsequently to the original order of classification made by the probate court, was called upon to construe it. (Cawood v. Wolfley, 56 Kan. 281, 43 Pac. 236, 31 L. R. A. 538.) The mistake which the probate court made in construing it was an error only. Every question of law as well as fact was within its jurisdiction to determine. Its determina-tion, though erroneous, was not void.”
Many other cases enforce the same principle : Hodgin v. Barton, 23 Kan. 740; Walkenhorst v. Lewis, 24 id. 420, 425; Prohibitory-amendment Cases, 24 id. 700, 725 ; Ames v. Brinsden, 25 id. 746 ; Meixell v. Kirkpatrick, 28 id. 315; Rowe v. Palmer, 29 id. 337, 340; Bank of Santa Fe v. Haskell County Bank, 51 id. 50, 32 Pac. 627; National Bank v. Town Co., 51 id. 215, 32 Pac. 902.
It is immaterial to the question of jurisdiction that the property was a homestead.'
“Where the mortgagor, being sued for a foreclosure, pleaded his homestead exemption, and there was a judgment of foreclosure, ordering the property to be sold, upon which the property was sold, in a suit by the purchaser to recover the property, it was held that the defendant, the mortgagor, was concluded, by the judgment of foreclosure, from again pleading his homestead exemption.
“There is no better settled principle, than that the judgment or decree of a court of competent jurisdiction, directly upon the point, or necessarily involving the decision of the question, is conclusive between the parties and their privies, upon the same matters coming directly in question in a collateral action, in the same or another court of concurrent jurisdiction. There is nothing in the nature of the right of homestead, to exempt it from the operation of the general principle.” (Tadlock v. Eccles, 20 Tex. 782, 73 Am. Dec. 218.)
“Judgments of courts of competent jurisdiction cannot be attacked collaterally. In court wherein judgment was rendered, question of paramountcy of defendant’s homestead having been raised and decided adversely, same cannot be raised a second time in another suit brought to ascertain priorities of liens on defendant’s realty.” (Spotts and al. v. The Commonwealth and als., 85 Va. 531, 8 S. E. 375.)
“The circuit court has jurisdiction of the subject-matter of partition, and, where the parties are before the court, its judgment directing a sale of the homestead of the widow and children cannot be collaterally attacked.” (Rolf v. Timmermeister, 15 Mo. App. 249.)
“In this case the wife united in the mortgage, and was a party to the suit to enforce it, and the question whether it was a valid waiver was directly involved, and the court, in rendering the judgment, decided that the mortgage was valid and was a waiver of the exemption, and thereby concluded that question. Such being the case, the court had no power, on the motion to revive, to go behind the judgment to in quire into the validity of the mortgage, or to adjudge the appellees entitled to a homestead, but should have revived the judgment to sell the mortgaged property without terms or restrictions.” (Harpending’s Ex’rs v. Wylie, etc., 76 Ky. 158, 163.)
Neither does it make a difference that the decision the court was required to make involved an interpretation of the constitution. The power and duty of the court to hear and decide was precisely the same as if the question had been one of statutory or common law. No doubt cases of conviction and incarceration under unconstitutio'nal statutes now form a distinct class. But, as remarked by Mr. Justice Mason, in the case of In re Jarvis, 66 Kan. 329, 71 Pac. 576, the view that such judgments are subject to collateral attack on habeas corpus “results more from a jealous regard for the personal liberty of the citizen than from the force of the reasoning employed as applied to other subjects of litigation.” And some irregularity in the development of the law of jurisdiction in civil cases has been occasioned,;, by indiscriminate applications of the doctrine that an unconstitutional law is no law. But the question here involved is of a different character. If- the foreclosure judgment was invalid, it was so because rendered upon a mortgage void as an attempt to impose a lien upon a homestead without the joint consent of husband and wife,1 contrary to the provisions of the constitution. Therefore, it lies within the field covered by those decisions, which are to the effect that a judgment is not subject to collateral attack because rendered upon an indebtedness or cause of action created against the terms of the constitution or other paramount law.
“ In an action by the old State Bank of Illinois, upon a promissory note given in satisfaction of' two judg ments recovered upon promissory notes executed to said bank in consideration of bills of said bank, which had been declared by the supreme court to be bills of credit emitted by the state, in contravention of the constitution of the United States, the defendants offered to show the consideration of the judgments in bar of the action. Held, that the evidence was inadmissible, and that the validity of the judgments could not be impeached in such action.” (Mitchell et al. v. State Bank of Illinois, 2 Ill. 526.)
“Where, upon a mortgage made to the old State Bank of Illinois, a judgment had been rendered in favor of the bank, upon a proceeding, by scire facias, to foreclose the mortgage, and the mortgaged premises had been sold by virtue of the judgment, and an execution issued thereon, to a third person, and subsequently the supreme court had declared the act creating the bank unconstitutional: Held, that the judgment was valid till reversed, and that the title of the purchaser, under such judgment, could not be impeached, in an action of ejectment, upon the ground that the bank was unconstitutional.” (Buckmaster et al. v. Carlin, 4 Ill. 104.)
In the case of Cassel v. Scott, 17 Ind. 514, a judgment had been rendered upon certain bonds which were void because the law providing for them was unconstitutional. In affirming amorder denying an injunction against an enforcement of the judgment, the court said :
“For a reversal, it is argued that the act of 1853, referred to in the complaint,.is in conflict with the constitution, and that the judgment on the bonds, having no foundation, save in that act, is a nullity. The first branch of the argument is correct. We have decided the act in question to be unconstitutional. (Mershmeir v. The State, 11 Ind. 482.) It does not, however, follow that the judgment is a nullity. It was founded upon the bonds and not on the act, and. of the suit upon them the circuit court had full juris diction. The act being void, the bonds are simply unsupported by any valid consideration, and this being the case, the judgment rendered upon these bonds, though it may be deemed erroneous, is not void, and must be held operative until, in accordance with the ordinary rules of procedure, it is reversed by a court of error.”
In the case of Joseph Webster v. Hugh T. Reid, Morris (Iowa), 467, 479, the supreme court of Iowa said :
“Similar in character are the objections that have been raised on the ground of the unconstitutionality of the acts of the legislature, through which the indebtedness accrued and the judgments were obtained. (16 Pick. 87, 26 Am. Dec. 631.) Judgments rendered under an unconstitutional law are not nullities.”
In the casé of M’Neil v. Bright & al., 4 Mass. 282, 303, 304, a judgment confiscating land had been rendered under an absentee law of Massachusetts. In an action to recover seizure of the land, it was claimed that the judgment was in violation of the constitution of the state, and in violation of a treaty of the United States with Great Britain. The court said : -
“If it be true that the provisional treaty is to be considered as a national contract, binding independent of the definitive treaty; that it operated a repeal of acts of confiscation ; and that the judgment against Archibald M’Neil was, in truth, rendered after the date of that treaty, the demandant should have brought his writ of error, established the fact, and the judgment must have been reversed ; but I know of ho rule of law by which, on a trial of his right to the land he can do what is tantamount to a reversal of the judgment, which, admitting its validity, is conclusive against him.
“There is one more objection made, which is, that the acts of confiscation were virtually repealed by the adoption of the constitution. And to prove this, the twenty-fourth article of the declaration of rights was cited in the argument, and, with great force and eloquence, pressed upon the consideration of thé court.
“If it be admitted that the constitution virtually repeals the law in question, it certainly follows that the judgment against Archibald M’Neil is erroneous, and that it might be reversed, but it does not prove that it is therefore a mere nullity, which can be taken advantage of in this way. This would be inconsistent with all the ideas I have entertained of the solemnity and efficacy of judgments rendered by courts of competent jurisdiction.”
In the case of Northampton County v. Herman, 119 Pa. St. 373, 13 Atl. 277, a sheriff settled his accounts for fees, under a statute governing the subject, with & county tribunal whose act had the force of an adjudication. Subsequently the act relating to fees was declared to be unconstitutional, and the sheriff sued the county for a sum of money claimed to be due, but the settlement was held to be conclusive.
In the case of Arnold v. Booth, 14 Wis. 180, a judgment was rendered in the United States district court under the fugitive-slave law, and chattels were sold upon execution to satisfy it. In an action of replevin for the chattels, it was claimed that the judgment was void because the fugitive-slave law was unconstitutional. The court decided that the question went to the existence of the cause of action, and not to the jurisdiction of the federal court, and that its decision was binding. In the opinion it was said :
“Obviously the cause of action in the suit of Garland against Booth was a penalty given by the fugitive-slave law for a violation of its provisions. But whether there was any law in existence giving this right of action, and, if so, whether the law was valid and binding, were legitimate matters of consideration for the district court, as was the question of its violation. • The court might have held that there was no cause of action because the law was void. It had jurisdiction of the case thus to decide. This it seems to me is incontestable.”
An analogous principle was applied in the case of Hartman v. Ogborn, 54 Pa. St. 120, 98 Am. Dec. 679, which was in its inception an action of ejectment brought to recover land that had been sold under a judgment foreclosing a mortgage. The court said :
“Mrs. Hartman executed a bond and mortgage in her maiden name of Maiy Ann Coleman, five days • after her marriage to H'artman, and that these instruments were void is not to be questioned. The disability of a married woman to encumber -her separate, estate for the debt of another has been declared in many cases, and was repeated in respect of this very bond in Keen v. Coleman, 3 Wright, 299.
“But the question upon the record has respect to the judgment upon the mortgage, rather than to the mortgage itself. . . . Neither the judgment nor the proceedings under it have been questioned by a writ of error, a motion to open or set them aside, or in any other manner whatever, and the only question upon the trial of this causé was whether they could be impeached- collaterally.
“And this transfer, be it observed, is made< by the judgment and the sale thereon, not by virtue of the mortgage. What avails the objection, then, that the mortgage was null and void, or for any reason was inadequate as an instrument of transfer? The inadequacy of the mortgage might well have been urged against the suit by scire-facias, but after that has been permitted to ripen into an unquestioned judgment, the mortgage is merged in it, and is no longer open to attack.”
There is no substantial dispute in the law that if the question of homestead had not been raised at all the judgment foreclosing the mortgage could not have been avoided in any subsequent proceeding other than by way of error or appeal because of that fact.
“A husband, against whom a decree of foreclosure of a mortgage on real estate has been dúly obtained, cannot, in an action of forcible entry and detainer to recover possession after the period of redemption, set up the defense that his wife, who was not a party to the former suit, has a homestead interest in the mortgaged premises ; such fact, if a defense at all, being available in the former suit, must be deemed to have been adjudicated or waived.” (Dodd v. Scott, 81 Iowa, 319, 46 N. W. 1057, 10 L. R. A. 260, 25 Am. St. Rep. 492.)
“It is not denied — indeed, it is a fact — that the appellant, as between him and the appellees, Lancaster, &c., as his creditors, was entitled to a homestead in said real estate ; but' his entire interest in this real estate having been sought to be sold to satisfy the demand of these creditors, and lie having appeared and defended upon the merits, and having failed to set up his homestead right, which would have been a complete bar to the appellee’s action, if the real estate was not worth more than one thousand dollars, and if more than one thousand 'dollars, then a bar to the extent of a thousand dollars’ worth of the land, his effort to set up his right to his homestead came too late. To allow a defendant to split his defenses, relying upon one until judgment is rendered upon it against him, and at the next term open the judgment and plead another defense, and so on, would be a mockery of legal justice. Therefore, it is a universal rule that the final judgment of a court of competent jurisdiction is not only conclusive of all issues actually decided, but of all that might and should have been decided by it. And there is no good reason why the assertion of a homestead right should be made an exception to this salutary rule.” (Hill, &c., v. Lancaster, &c., Lancaster, &c. v. White, 88 Ky. 338, 343, 11 S. W. 74, 75.)
“Where after a recovery in ejectment by a widow of her dower in land occupied jointly by the holder of the record title and a brother, who were joined as defendants, the widow secures a partition of the land through a suit instituted for that purpose, in which the brother and sister are made defendants, the brother cannot defend in a second action of ejectment, brought by the widow to recover the land set off to her as her dower in the partition proceedings, on the ground that he had homestead rights in the land, and that his wife was not joined as a defendant in the first ejectment suit.” (Bemis v. Conley, 95 Mich. 617, 55 N. W. 387.)
“Parties who have an interest in' land as a homestead, and are made parties to a proceeding in the probate court to sell the land in aid of assets, and fail to set up their claim of homestead therein, cannot afterwards maintain an action for said land against the purchaser at such sale.” (Haddon v. Lenhardt, 54 S. C. 88, 31 S. E. 883.)
“Where a judgment has been fairly rendered against a husband and wife, with an order for the sale of land, upon which the creditor claimed a lien for the payment of his debt, the wife cannot, by subsequent suit, have such order revoked, upon the ground that it subjects the homestead to sale.” (Baxter v. Dear, 24 Tex. 17, 76 Am. Dec. 89.)
“Where a party sued to foreclose a mortgage founded on a vendor’s lien, and recovered judgment, and purchased the property at sheriff’s sale, and then.suedin ejectment to recover possession, it was too late for the defendant to plead that the property was his homestead at the time the judgment of foreclosure was rendered.” (Chilson v. Reeves, 29 Tex. 275.)
“Where a purchaser of land sold under attachment sued in equity the attachment debtor and his wife, praying for possession of the premises, that he be adjudged the owner thereof, and that certain deeds under which the wife claimed title be declared fraudulent and void, a decree granting the relief sought, although neither it uor the pleadings made reference to respondents’ homestead rights, is a bar to an action to have said decree declared void, and to restrain the execution of a writ of possession, brought on the ground that the land constituted their homestead.’' (Graham v. Culver, 3 Wyo. 639, 29 Pac. 270, 30 Pac. 957, 31 Am. St. Rep. 105.)
In some of these cases it-is apparently assumed that the doctrine of collateral attack may be expressed in terms of res judicata. The confusion, however, is one of name and not of principle. But if any one of them be well determined, there was no reason for reinvesti-gating the homestead controversy in the case at bar when an issue upon the precise question had been tendered and a judgment had been rendered respecting it in the foreclosure suit.
Finally, it is- to be noted that it makes no difference in deciding the legal questions arising upon this record that the party interested in maintaining the land to be a homestead free of encumbrance is insane. Any human tribunal, to whose attention the circumstance is called, must be saddened that a high-thoughted human life should meet with obscuration, and that blind years should merely lead this widow’s unlamped feet from night to night. But for all her business affairs the law provides her a guardian, quickens his conscience with an oath, and protects her property with his bond. He must sue and defend for his ward. His conduct of litigation in her behalf is authoritative and must be binding. (Gen. Stat. 19.01, ch. 60.) Neither is the liberality with which all laws relating to the homestead are construed forgotten. A high public policy looking to the welfare and good order of society requires that ' quarrels once composed by the judgment of a court should not again be fomented. Aside from the public disturbance and annoyance which the toleration of continued disputation over decided causes would entail, it would open fruitful fields to thrifty fraud, expose the weak to the limitless oppression of the strong, and enable the rich to wreak unchecked ruin upon the poor. The prevailing policy has been approved by the sense of order and justice in men for centuries. In the Justinian code it is said :
“Again if an action, real or personal, has been brought against you, the obligation still subsists and in strict law, an action might still be brought against you for the same object, but you are protected by the exception rei judicatse.” (Inst., Lib. IV, Tit. XIII, 5.)
“If you have been sued either upon a real or personal action, the obligation nevertheless remains; and, therefore, in strict law, you may again be sued upon the same account; but you may plead the former trial in bar, and be aided by the exception rei judicatse.” (Cooper's Justinian,' 367.)
In the time of Charles II of England,
“An English ship was taken at sea by a French vessel after the peace made between us and the Dutch, wherein France was left out, and the. ship was carried into France, and condemned there as a Dutch ship, and afterwards the ship came into England; and in an action of trover brought by the owner of the ship against the vendee it was adjudged, that by the sentence in the court of France, though it were an unjust sentence, the property was altered; and the vendee had judgment.” (2 Lord Raymond, 936.)
‘ ‘ This is a principle of general j urisprudence founded on public convenience and sanctioned by the usage and courtesy of nations.” (2 Kent Com. 120.)
In this case, after the time for a review of the judgment enforcing the guardian’s mortgage had elapsed, that judgment stood as the authoritative evidence of the ascertained rights of the individuals who were parties to it. If erroneous, it was not a nullity, and it should have made an end of the controversy. Since the validity and the conclusive character of the first judgment appeared upon the face of the pleadings in the second suit, the motion for judgment against the plaintiff upon the pleadings should have been sustained.
Therefore, the judgment of the district court is reversed, and the cause is remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
MasoN, J.:
Martha Waller brought an action against Aaron Julius to quiet title to real estate. He having died, the present defendants, his heirs, have been substituted for him. The facts as disclosed by the petition, so far as they are here important, are substantially as follows : The property originally belonged to Nat. Minard and Daphne Minard, his wife.1' They made an oral agreement with plaintiff that she should occupy the property jointly with them and take care of them during the remainder of their lives, in consideration of which the property was to become hers if she survived them. She carried out the agreement on her part, and in reliance upon it made permanent imrovements on the property of the value of about $100. Nat. Minard died intestate July 28,1900. September 4, 1900, Daphne Minard executed a warranty deed for the property to Julius. The deed was without consideration and the grantor, at the time of making it, was of -unsound mind and incapable of transacting any business whatever, and did not know what she was doing, which facts were known to the grantee. Daphne Minard died March 1, 1901, since which time plaintiff has been in the exclusive possession of the property. The prayer was for the cancel-ation of the deed to Julius, which had been recorded,- and for other relief. The trial court sustained a demurrer to the petition and plaintiff brings this proceeding to review such ruling.
It ’is argued in support of the judgment that plaintiff's contract with the Minards was within the statute of frauds, but the fact that she made permanent improvements on the property upon the strength of it is a sufficient answer to this contention.
It is further urged that plaintiff was herself without title and that the case is controlled by the principle that a subsequent grantee cannot attack a prior deed of his grantor for fraud or want of consideration. It is not necessary at this time to consider what rights plaintiff acquired under her agreement. While she does claim to have acquired title to the property upon the death of Daphne Minard, a,nd not sooner, her services had been rendered, and improvements made, in reliance upon her agreement with the Minards, before execution of the deed. But apart from this consideration the rule invoked does not reach, this case. The action is not an attack upon a deed voidable for fraud and want of consideration, but an effort to clear the record of an apparent deed that is in fact no deed at all, because made by an insane grantor to a grantee who knew of her incapacity and who gave nothing for it. True, it is said that as a general rule a deed made by a person of unsound mind who has not been judicially declared insane is not wholly void. (9 A. & E. Encycl. of L., 2d ed., 119, 120.) But this rule grows out of practical considerations and is for the benefit of innocent grantees for value. One who takes a deed, paying nothing for it, and knowing the grantor to be insane, is not within its reason and is not protected by it. The caution with which this court has held that the deed of an insane person can ever be treated otherwise than as absolutely void confirms this. (See Gribben, Guardian, v. Maxwell, 34 Kan. 8, 7 Pac. 584, 55 Am. Rep. 233, and cased there cited.) Whatever other basis of title plaintiff may have or may lack, she is in possession under a claim of ownership. This in itself constitutes title in a low degree. (Christy v. Richolson, 48 Kan. 177, 29 Pac. 398.) It is sufficient to give plaintiff standing to bring an action against defendants, who have no title at all. (Giltenan v. Lemert, 13 Kan. 476.)
The judgment is reversed, with direction to overrule the demurrer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunning-ham, J. :
We find we have no jurisdiction to pass upon the merits of this case. Appellant’s motion for a new trial was overruled at the February term,'1903, “and was given until May 4, 1903, within ■ which to prepare and have settled a bill of exceptions.” On May 4 an order was made by the judge, extending this time for ten days, and on May 13 the bill of exceptions was settled. The time originally given, being until May 4, expired with the expiration of May 3 ; consequently on May 4, when the additional time was given,, the court had lost jurisdiction to make such extension. This is strietly within the case of Croco v. Hille, 66 Kan. 512, 72 Pac. 208, which case receives our approbation.
It is contended, however, on behalf of the appellant, that a different principle has been announced in The State v. Bradbury, 67 Kan. 808, 74 Pac. 231. An examination of these two cases will disclose no discrepancy between them. The Croco case announces the rule, that “where time is given beyond the term for filing a bill of exceptions until a day named, the filing of the bill on such a day is not within the time limited.”
This rule, however, is subject to the exception that where it is the manifest intention of the parties to include the last day, such intention will be given effect. In the Bradbury case time was given until the 5th day of the regular June, 1902, term of the court; so in that case this specification was held to be a day certain upon which the bill of exceptions was to be settled and thus brought within the exception noted in the Croco case. It was as though the date named had been, for example, until Christmas or until the next .market day, in either of which cases the intention would clearly be to. include the day named.
The appeal will be dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
In September, 1896, the Dale & Nessly Milling Company, of Wichita, shipped a car-load of flour to Atlanta, Ga., and consigned the shipment to itself. At the same time the milling company drew a draft with bill of lading attached on the Southern Flour and Grain Company, of Atlanta, through the Fourth National Bank of Wichita, for $360.82. The bank forwarded the draft and bill of lading to its correspondent in Atlanta, with instructions to deliver them to the flour company upon payment of the draft. The Southern Flour and Grain Company paid the draft and took up the bill of lading, and the amount was remitted to the Wichita bank. The flour company verbally notified an agent of plaintiff in error ( the railway company on whose line the flour was carried into Atlanta) that it was the owner of the flour, and requested that it be unloaded and placed in the warerooms of the railway company, which was done. The flour remained in the freight-depot of plaintiff in error for several' weeks, which fact came to the knowledge of defendants in error, Dale & Nessly and the Fourth National Bank. They thereupon instructed the railway company to deliver the flour to the Atlanta Brokerage Company, well knowing that the Southern Flour and Grain Company owned it. The railway company, having no record of the verbal notice from the Southern Flour and Grain Company, and believing that Dale & Nessly and the Fourth National Bank were the only parties interested in the flour, and relying on the orders from them, delivered the flour to the Atlanta Brokerage Company.
On December 6, 1896, after the delivery of the flour to the Atlanta Brokerage Company, the Southern Flour and Grain Company presented to the railway company the bill of lading indorsed in blank, and demanded the flour, with which demand the company was unable to comply. The flour company then made a demand on the railway company for the value of the car-load of flour, and endeavored to induce the latter to pay the claim, which it refused to do. Thereafter,, in March, 1899, the flour company brought an action, against plaintiff in error for the sum of $360.82 which it had paid the defendants in error for the flour, with interest. Afterward, on July 9, 1900, while the suit was pending, the railway company, on the advice of its counsel, settled with the flour company and paid the claim. Following this, the railway company made demand on Dale & Nessly and the Fourth National Bank for the said sum of money which it had paid to the flour company. The demand being, rejected, this action was brought by the railway company against them in the court below on February 24,. 1902. The above facts were set out in the petition.. A general demurrer was sustained thereto, and the railway company has come here by proceedings in error.
The only question necessary to be considered is. whether the action was barred by the statute of limitations. It appears from the petition that the flour-was received at Atlanta between September, 1896, and December 6 of the same year. The railway company, at the request of the Southern Flour and Grain Company, which we will call the consignee, after the latter had paid for the property, stored it in a warehouse, where it remained for several weeks. The plaintiff' in error was a bailee of, and responsible to, the owner (the flour company) therefor. (Security Trust Co. v. Wells, Fargo & Co., 81 Hun, App. Div. 426, 80 N. Y. Supp. 880.) The railway company had such property rights in the flour that it might have recovered, possession of it in an action of replevin.
Before December 6, 1896, the Dale .& Nessly Milling Company and the Fourth National Bank, by an order on plaintiff in error, which the latter honored. through inadvertence, forgetting that the flour was held by it for the true owner, induced' .the railway company to disregard the property .rights of the flour company and its own obligation as bailee and caused it to deliver the flour to the brokerage company.
If a cause of action accrued to the railway company against defendants in error at that time, then this action,begun in February, 1902, was barred bythestatute of limitations. Counsel for plaintiff in error contend that the statute began to run from the time the railway company, in recognition of its liability, paid the flour company for the property, in July, 1900. We do not think so. It is a general rule that in cases of tort arising quasi ex contractu the statute commences to run from the date of the tort and not from the occurrence of the actual damage. (Wood, Lim. 404.)
In this case the railway company, being a bailee of the property and having its possessory rights thereto invaded by the wrongful act of defendants in error, could then have brought an action against Dale and Nessly and the bank and recovered from them the value of the flour. (3 A. & E. Encycl. of L., 2d ed., 761. [3.]) It chose, however, to wait until the owner of the property .(the flour company) had sued it, and, after payment to such owner, brought this action to recover from defendants in error the amount so paid. The liability of the railway company to the flour company when it delivered the latter’s goods to ■another ought to have been as well known to it as it was later, when on the advice of counsel it compromised the suit brought by the flour company against it and paid to the rightful owner the value of the property. The liability of the defendants in error to the railway company for their tortious act was subject to no condition, but was absolute when the wrong was committed.
In Pennsylvania Co. v. Chi. Mil. & St. P. Ry. Co., 144 Ill. 197, 33 N. E. 415, the latter company diverted a shipment of oil which was delivered to it by the Pennsylvania company, by reason of which the oil was damaged and lost. The owner of the property recovered its value from the Pennsylvania company, and the latter then sued the St. Paul company for the amount it was compelled .to pay, occasioned by the latter’s neglect and wrongful act. It was held that the statute’ of limitations began to run from the time that the St. Paul company diverted and lost the shipment, and not from the time the Pennsylvania company paid to the consignee the value thereof.
In Morton v. City of Nevada, 41 Fed. (C.C.) 582, bonds of a city were issued in violation of constitutional requirements which rendered them void. In an action by a purchaser of the bonds to recover the amount he had paid the city therefor, it was decided that the statute of limitations began to run when the money was paid, and not from the time when the bonds were adjudged to be void. The question is ably discussed in an opinion by Phillips, J. The case was affirmed by the circuit court of appeals in Morton v. City of Nevada, 52 Fed. 350, 3 C. C. A. 109. (See 19 A. & E. Encycl. of L., 2d ed., 194 [2] ; Jones v. School District, 26 Kan. 490.)
In all justice and equity, defendants in error should pay to the railway company the amount sued for. There is the strongest moral obligation on them to do so. We are confronted, however, with the insuperable obstacle of the statute of limitations invoked by them, which cuts out all consideration of the equitable features of the case.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Per Curiam:
Appellant sued for collision damages to his automobile under an insurance policy which had been issued for a term of one year from June 12, 1968, to June 12, 1969. The policy contained no provision for renewal. The premium was payable (and paid) in two installments.
The loss occurred on October 5,1969, four months after the policy expiration date. At the time of the loss no renewal premium had been paid or tendered.
The premium for the policy term was paid one-half in June, 1968, when the policy was issued, and the other half in December. The defendant notified the plaintiff that the December installment was due and billed him for it prior to payment.
Reduced to its fundamentals (though he speaks in his petition in terms of cancellation) the appellant’s claim is that he is entitled to have the policy considered as renewed because there was a custom, on which he relied, that the insurer would give notice that the policy was expiring and that it would be renewed for a stated premium, failing in which the insurer was estopped from denying liability beyond the term.
The appellant describes his position in terms of estoppel arising from the alleged custom and complains that the trial court, in granting summary judgment for the defendant did not give him an opportunity to prove an existing custom and his right to rely on it.
We hold that where a policy of this kind was written for a definite term without any reference to a right of renewal the policy expired at the end of that term — in this case on June 12, 1969. Only by the tender of premium for an additional term and its acceptance by the insurer could the policy be continued in force beyond the initial term.
Accordingly, if the insurer followed a practice (as seems to be the case) of notifying its policyholders that their policies were about to expire and calling attention to the premium for a new policy, it must be considered as an act of courtesy to the insured and an estoppel cannot be based on that fact alone, as appellant contends.
The record shows no course of conduct between the parties which could support a claim of estoppel, and it is apparent that none could be shown.
Evidence of custom in an industry or profession is relevant only as an aid to construction of a contract otherwise in doubt, or as a basis for reading into the contract an implied provision beyond the expressed terms. There is no claim in this case that there was such a prevailing custom which could write into a definitely expiring policy an implied agreement for automatic renewal. Nor was there any applicable statute which could have had such effect. (Laws 1972, ch. 176, imposing certain limitations on the insurers right to refuse renewal, was not in effect at the time this loss occurred. We express no opinion as to the result if it had been applicable.)
The rule of necessity of notice applicable to ordinary life insurance policies providing for a continuing annual premium does not apply. Cases from other jurisdictions which may seem to apply the doctrine of estoppel, arising merely from a practice of notification, to a fixed term liability policy are rejected as precedent.
We might add that even if there were otherwise grounds for invoking an estoppel theory, the appellant could hardly carry it so far as to give him immunity from the payment of a renewal premium for as long a period as four months. He was charged with knowledge of the expiration date of the policy he held and the necessity of tendering a premium for renewal, at least within a reasonable time, whether he had notice or not.
This decision is in keeping with what we deem to be the weight of authority and the better rule. See, Peterson v. State Automobile Ins. Assn., 160 Neb. 420, 70 N. W. 2d 489; Munro v. Boston Insur ance Co., 370 Mich. 604, 122 N. W. 2d 654; Redeman v. Preferred Accident Ins. Co., 215 Wis. 321, 254 N. W. 515; 9 Couch on Insurance 2d, § 39:214. It is also consistent with our decision in Loades v. Woodmen Accident Co., 134 Kan. 337, 5 P. 2d 798.
The judgment of the lower court is affirmed.
Prager, J., not participating. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an action for a declaratory judgment to construe the terms of a shopping center “Build and Lease Agreement.” The lease provides for payment of rents based on a percentage of gross sales of the lessee’s supermarket if the percentage amounts to a sum greater than the minimum fixed cash rent agreed upon.
Defendant’s sublessee operates a bakery on the premises. The question in the case is whether the portion of the baked goods sold or transferred to affiliated stores of the sublessee are to be included in the term “gross sale” as defined in the lease.
Plaintiff-lessor appeals from a summary judgment rendered for defendant-lessee.
Both parties filed motions for summary judgment, at which time the trial court had before it the pleadings, affidavits and exhibits from which the facts are gleaned.
The build and lease agreement was executed on September 20, 1960. It declared that:
“. . . [T]he lessor desires to construct a building and surrounding area as a part of the fairlawn plaza shopping center, said building to be located as approved by the parties thereto . . . and the lessee desires to lease said building and surrounding area for the operation of a retail food supermarket.”
Section 2 of the lease agreement reads:
“The lessor agrees to cause construction of a building containing approximately 18,561 square feet, together with a parking area and a service area (said building, parking area and service area herein together called the premises), all to be carried on in accordance with the attached plans and specifications.
“This lease shall not become effective until both parties have approved the plans and specifications and have initialed and attached hereto a copy thereof. The lessor agrees that at the option of the lessee this lease shall become null and void if construction of the premises is not begun on or before December 1, 1960, and if thereafter construction is not completed with all reasonable diligence.” (Emphasis supplied.)
The agreement further provides for a lease term of fifteen years with an option granted to lessee to extend the lease for three additional periods of five years.
Provisions concerning the amount of rent and the payment thereof appear in Section 5 of the lease agreement. In substance it was agreed that lessee should pay an annual rent of $26,727.84 in monthly payments of $2,227.32, or one and one-quarter percent of all gross sales, as defined, in any one calendar month, whichever is greater. This section of the lease was amended by a supplement to the lease executed on July 12, 1965. The supplement provides for an annual fixed rent of $15,000.00, instead of $26,727.84, until lessor had completed construction of an additional 80,000 square feet of building area in the shopping center. After completion of the additional construction the rent provisions originally agreed upon were to become effective.
The portion of the lease agreement which gives rise to the dispute between the parties is the definition of “gross sales” which appears in Section 5 as follows:
“The term ‘gross sales’ as used herein shall include all sales of merchandise from, through, or out of the leased premises, including performance of any service for any customer or patron for compensation by the lessee, or by any salesman, saleswoman, or employee, and shall include all sales by every portion and department thereof, and sale by any sublessee, concessionaire, or licensee in said premises for cash or on a charge basis, paid or unpaid, collected or uncollected, and including all business in which orders come by mail, telephone or telegraph, and all business where goods are delivered directly by the supplier to the purchaser (whether or not actually handled by the lessee), less credit for returned merchandise, merchandise trade-ins, and credits of a similar nature; and ‘gross sales’ shall not include sales tax. Transfers of merchandise between stores of sub-lessees are not Gross Sales.” (Emphasis supplied.)
The remainder of the lease agreement deals with insurance responsibility, additions, alterations, damage to the premises, and other matters not pertinent to the dispute in litigation.
Plaintiff-lessor, as agreed, proceeded to construct the building according to plans and specifications attached. The building encompassed a total of 18,561 square feet of which 2,214 square feet was devoted to a bakery operation.
Three days after the execution of the “Build and Lease Agreement,” on September 23, 1960, the defendant subleased the premises to Ernest R. Dibble; Paul L. Dibble, and John W. Dibble. On April 3, 1968, the original sublessees assigned all of their interests as sublessees to Dibble Fairlawn, Inc. John W. Dibble is the sole owner of all of the outstanding capital stock of Dibble’s Fairlawn, Inc. Since the commencement of the terms of the lease between plaintiff and defendant, the sublessee has operated a retail grocery supermarket on the premises and during such time there were three other Dibble stores which were at all times, following the commencement of the lease term, affiliates and operated in conjunction with the store operated by the sublessee.
Since the commencement of the lease term the sublessee has operated a bakery on the premises in question, and part of the products of the bakery has been delivered to the three affiliated stores and sold at retail therein.
After the lease agreement had been in effect for about six years, plaintiff says it discovered that defendant had not included in gross sales the bakery products delivered to the three affiliated stores. Defendant took the position that the furnishing of bakery goods from the Dibble’s Fairlawn Plaza store to the other Dibble stores did not fall within “gross sales” as used and defined in the “Build and Lease Agreement.” Whereupon plaintiff filed this declaratory judgment action praying:
“. . . that the Court interpret and construe the Build and Lease Agreement and the Supplement thereto. . . .”
The trial court held that the bakery operation was excluded under the lease provisions defining “gross sales” because it is a transfer of merchandise between the stores of the sublessee.
On appeal both parties take the position that there are no ambiguities in the lease if the language used therein is given its ordinary meaning. Nevertheless, both parties supply us with citations of the various rules of construction which would be applicable if we were to find ambiguity in our examination of the lease on appeal.
Testing the lease provisions in question, by giving the language used its ordinary meaning, we do not believe the words used can genuinely be understood to have two different meanings. Thus, under familiar applicable rules, ambiguity does not exist. (Stewart v. Preferred Fire Ins. Co., 206 Kan. 247, 477 P. 2d 966; Wood v. Hatcher, 199 Kan. 238, 428 P. 2d 799; and Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P. 2d 139.) It follows that the meaning of the provisions in question must be determined by the contents of the lease agreement alone, and words cannot be written into it which import an intent wholly unexpressed when it was executed. (Williams v. Safeway Stores, Inc., 198 Kan. 331, 424 P. 2d 541; and Wood v. Hatcher, supra.)
In its first and principal point of error on appeal, plaintiff contends the summary judgment of the trial court was erroneous because the bakery goods produced and processed in the leased facility and sold to other Dibble stores constituted wholesale sales subject to the rental based on percentage of gross sales and were not transfers of merchandise. Plaintiff argues that the furnishing of bakery products to the other Dibble stores constituted a sale of merchandise from or out of the leased premises or the performance of a service for compensation.
Defendant, lessee, on the other hand, argues that an examination of the language used in Section 5 reveals that the parties contemplated that gross sales were to include sales for profit to customers or patrons, or sales arranged by the retailer for its profit and delivered directly by a supplier to an ultimate purchaser. Defendant contends that a sale or transfer to an affiliate store cannot be considered a sale for profit to a customer, patron, or purchaser within the context or the term “gross sales” as defined, and, further, that the last sentence of Section 5, “Transfers of merchandise between stores of sub-lessees are not Gross Sales,” clinches this interpretation of Section 5.
We are constrained to agree with the interpretation adopted by defendant and the trial court. We believe the parties, by the language used, contemplated sales to customers or patrons as distinguished from sales or transfers to affiliate stores, and it is of no moment whether the transfer of the baked goods in question be considered a sale or a transfer to the affiliate.
In support of its motion for summary judgment, plaintiff attached the affidavit of Chas. A. Bennett, president and managing officer of plaintiff. In his affidavit Mr. Bennett states:
“. . . [H]e has been informed and therefore believes that the sale of ‘bakery goods’ processed by Dibble’s Fairlawn, Inc., and sold to other ‘Dibble’ retail supermarkets were sold to such other outlets at the retail price less twenty-five (25%) percent.”
When a motion for summary judgment is submitted to the court for consideration, the movant’s adversary is entitled to the benefit of all reasonable inferences that may be drawn from the facts under consideration. (Rothwell v. Transmeier, 206 Kan. 199, 477 P. 2d 960.) So, because of Mr. Bennett’s affidavit, we shall treat the bakery transaction between the sublessee and affiliate stores as a sale, which, we assume, was the treatment given by the trial court.
For purposes of summary judgment, defendant concedes the Bennett statement stands admitted and that the transaction must be considered a sale, but contends this makes no difference because “transfer of merchandise” includes “sale of merchandise.”
Despite an unchallenged statement of the trial court that the parties agreed, when the motions for summary judgment were submitted, that there was no factual dispute, plaintiff now argues that since Mr. Bennett termed the transaction between stores of sub-lessee a “sale” rather than a “transfer,” a dispute of fact exists. We cannot agree. In common usage of the term “sale” is included in the broader term “transfer.” A pertinent statement, in this regard, appears in 77 C. J. S., Sales, § 2, p. 583:
“While in its broadest sense, the term 'sale’ comprehends any transfer of personal property from one person to another for a valuable consideration, the words ‘sale’ and ‘transfer’ are not synonymous. The word ‘transfer’ is more comprehensive than the word ‘sale,’ and may involve a mode of disposing and parting with property other than by sale. . .
In Volume 3 Words & Phrases (Fourth Series), Sales, p. 429 this appears:
“A sale’ is ordinarily understood to mean a transfer of property for money. Mifflin v. Shiki, 293 P. 1, 3, 77 Utah. 190.”
In Webster’s Third New International Dictionary (unabridged), at page 2003, sale is defined:
“. . . the act of selling : a contract transferring the absolute or general ownership of property from one person or corporate body to another for a price. . . .”
While transfer is defined:
“. . . the conveyance of right, title, or interest in either real or personal property from one person to another by sale, gift, or other process. . . .” (p. 2427.)
The broad denotation of the word “transfer” is noted both by case law and statute in this state. The meaning of the words “assignment” and “transfer” were considered in Elwood v. Soldiers’ Compensation Board, 117 Kan. 753, 232 Pac. 1049, wherein the word assignment was said to have a comprehensive meaning — the opinion continues:
“. . . The word ‘transfer’ has a still wider meaning. It includes all translations [transactions] whereby property of one person becomes the property of another, whether by descent or purchase, and a will is the common assurance of a transfer which becomes effective at the death of the testator. . . .” (p. 754.)
We find no general statutory definition of the word “transfer.” However, with respect to taxation of legacies, successions and estates, K. S. A. 79-1528 ( 2) reads:
“The word, ‘transfer’ shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, succession, bequest, grant, deed, bargain, sale, gift or appointment in the manner herein prescribed.”
Obviously, in common usage the word “transfer” includes “sale”— while transfer includes conveyance of property other than by sale, there is no circumstance wherein a sale would not be a transfer. It appears the broad terms “transfer” and “merchandise” were used to express the intent of the parties to exclude from gross sales any transfer of any merchandise between stores whether it be by trade, exchange, sale or however. An express covenant in a lease on a given subject matter excludes the possibility of an implied covenant of a different or conflicting nature. (Williams v. Safeway Stores, Inc., supra.) If the parties intended to give the word “transfer” other than its ordinary meaning it would have been a simple matter to do so in the lease agreement. We cannot make an agreement for the parties which they did not make for themselves. (Borgen v. Wiglesworth, 189 Kan. 261, 369 P. 2d 360; and Smith v. Holmes, 181 Kan. 438, 312 P. 2d 228.) When language used is clear and unambiguous, the intention of the parties and the meaning of a contract are to be deduced from the content of the instrument alone. (Williams v. Safeway Stores, Inc., supra.)
Plaintiff argues that, under the trial court s interpretation of the lease, the defendant and its sublessee could change the entire operation from one of a retail supermarket to a wholesale bakery for its other stores and thus escape the percentage rents based on gross sales from the premises. Plaintiff is fully protected from any such happening. The instrument in question here is more than just a lease. It is a build and lease agreement for the declared purpose of constructing a building for use as a retail food supermarket in accordance with attached plans and specifications, which included 2,214 square feet of bakery space. Any attempt by a lessee or sub-lessee to convert the premises for a use other than a retail food supermarket, or to enlarge the bakery operation beyond that contemplated by the plans and specifications, would present a far different question than the one before us. Obviously, the parties contemplated the operation of a retail food supermarket with a bakery operation included. The lessor is adequately protected against any significant alteration of use from that contemplated in the agreement and attached plans and specifications.
From the language used by the parties here, we see no reason to distinguish baked goods from any other merchandise which might bq packaged or processed, or otherwise changed from its original state, into a different form and then transferred or sold to other stores of the lessee or of its sublessee.
We believe what has been said effectively disposes of this appeal; nevertheless, we shall briefly consider other matters suggested by plaintiff in its brief on appeal.
Following the rendition of summary judgment on January 21, 1971, plaintiff, on January 29, 1971, filed its motion to set aside or amend the judgment. In its motion plaintiff alleged that by reason of the affidavit of Chas. R. Bennett, the court had determined a factual issue and thus erroneously rendered summary judgment for defendant. We have heretofore disposed of this contention. Plaintiff’s motion was not heard until October 15, 1971. In the meantime, on September 10, 1971, more than seven months after it filed its motion to set aside the judgment, plaintiff filed a motion for leave to take a deposition and submit documentary exhibits in support of its motion to set aside or amend judgment.
The trial court overruled both motions and in its letter of decision, dated October 21,1971, wrote:
“The parties, in the hearing before this Court of December 21, 1970, agreed on submission of this matter, and that there was no factual dispute and that the question surrounded the interpretation of the lease agreement, which was attached to plaintiff’s petition and more particularly paragraph five (5) thereof and the definition of gross sales therein. This Court made its ruling on that matter. . . .”
Plaintiff now contends the trial court erroneously overruled its motion for leave to submit documentary evidence and to take the deposition of John W. Dibble. Plaintiff claims this evidence would show that as of April 1968 each of the Dibble stores were separately incorporated and that Dibble’s Fairlawn, Inc., is the only sublessee of the premises involved; and that the other stores being separate corporations cannot be considered affiliate or other stores of the sublessee. Even though not admitted on plaintiff’s posttrial motion by the court below, plaintiff has submitted purported certificates of incorporation in the record on appeal. Plaintiff’s position in this regard falls for several reasons.
First, as we have noted, the tidal court pointed out that both parties agreed in open court, on submission of the case, that there was no factual dispute and that the question was solely an interpretation of the lease agreement. The statement of the trial court in this regard is not challenged or denied. Plaintiff is bound by the admission. (In re Estate of Carrell, 183 Kan. 491, 327 P. 2d 883.)
Second, the trial court refused to admit the evidence when offered with plaintiff's motion. No error in this regard was specified in plaintiff's statement of points on appeal. No issue, other than one going to the jurisdiction of the court over the subject matter of the litigation, will be considered on appeal unless included in the statement of points on appeal, in accordance with Supreme Court Rule No. 6 (cl) (205 Kan. xxix.) relating to appellate practice. (Erdman v. Sowle, 207 Kan. 488, 485 P. 2d 1392; and Shinkle v. State Highway Commission, 202 Kan. 448, P. 2d 12.)
Third, plaintiff does not specify the statute relied upon for post judgment relief; however, from the tenor of the arguments advanced it appears that plaintiff was relying on K. S. A. 60-260 (b); Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. The certificates of incorporation were of public record in the office of the Secretary of State. Plaintiff made no attempt to inject the matter of the separate corporations into the case until seven months after judgment was rendered by the trial court. Plaintiff offered no explanation at the time, or now on appeal, for its failure to produce the certificates, if they were indeed important, prior to submission of the case on the cross-motions for summary judgment. Our statute K. S. A. 60-260 (b) is patterned after Rule 60 (b) of the Federal Rules of Civil Procedure. (Neagle v. Brooks, 203 Kan. 323, 454 P. 2d 544; and Lackey v. Medora Township, 194 Kan. 794, 401 P. 2d 911.) In the cases mentioned, federal decisions dealing with 60 (b) are discussed and the point is made that a movant seeking relief from a judgment under the rule has the burden of showing how he was justified in failing to avoid mistake, inadvertence or to produce the claimed newly discovered evidence in the first instance.
In Neagle v. Brooks, supra, we held:
“A motion for relief from a final judgment under K. S. A. 60-260 (b) is addressed to the sound discretion of the trial court, and upon appeal its action is reviewable only for abuse of discretion.” (Syl. f 3.)
Under the showing here there is no basis established upon which we could find abuse of discretion by the trial court in denying plaintiff relief under 60-260 (b).
With respect to plaintiff's complaint, in this regard, we further note that in his affidavit in support of defendant’s motion for summary judgment, John W. Dibble states that he is now the sole owner of the other three Dibble supermarkets, and that at all times since the commencement of the lease agreement the other stores have been affiliates of and operated with the sublessee. In other words, even though the stores may be separately incorporated, John W. Dibble is now the sole owner and the stores are affiliates of each other.
We conclude the trial court correctly interpreted the plain language of the provision of the lease agreement in question and did not abuse its discretion in denying post judgment relief to plaintiff.
The judgment is affirmed. | [
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|
The opinion o£ the court was delivered by
Owsley, J.:
The plaintiff filed this replevin action against the sheriff of Allen County, hereinafter referred to as sheriff, to recover five slot machines and some coins contained therein. The State of Kansas, ex rel., Vern Miller, Attorney General, hereinafter referred to as the state, filed a motion to intervene in the action and the trial court refused to permit the intervention. The state appeals.
The slot machines and the coins were seized from the plaintiff at lola, Kansas, on the 18th day of June, 1971, by agents of the Kansas fiureau of Investigation. In connection with criminal proceedings commenced in Allen County against the club manager and two patrons of the plaintiff, an order was issued by the trial court directing the K. R. I. to deliver the property seized to the sheriff of Allen County so the defendants in the criminal proceedings could inspect the property in preparation of their defense. At the conclusion of the trial, the court directed the property to be held by the sheriff until further order of the court. Shortly after the conclusion of the criminal proceedings the plaintiffs in this action filed a motion for return of the property. The trial court stated that it did not have jurisdiction over the property and that it was a matter between the sheriff and the alleged property owner. Thereupon, plaintiff filed its petition in replevin seeking to recover from the sheriff the slot machines and the coins, and at the same time filed its affidavit of ownership, request for immediate return, and a bond. An order for delivery of the property was then issued by the court and the slot machines and the coins were delivered to the plaintiff. Upon receiving information to this effect the office of the attorney general contacted the county attorney of Allen County and the office was informed that the county attorney was representing the sheriff and the sheriff’s position was that of an innocent stakeholder. Thereupon, the state filed its motion to intervene. Subsequently, the sheriff filed an answer disclaiming any right or ownership in the property. After hearing, the trial court entered its order denying the motion to intervene. The basis of the state’s motion is K. S. A. 1971 Supp. 60-224 {a), which reads:
“(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant s interest is adequately represented by existing parties.”
The only basis on which plaintiff maintains the state does not fall within the provisions of this statute is that the state’s “interest is adequately represented by existing parties”; that is, the sheriff.
Briefly stated, plaintiffs argument is that the sheriff had lawful possession of the property and that his possession was necessarily on behalf of the state by virtue of the court order. The state as an abstract entity cannot hold possession of any property. The sheriff as an agent of the state has a superior right to possession. It takes two parties with conflicting interests to raise an issue. Here, there is only one party — a public official who is an agent of the state. The issue, regardless of who is the nominal defendant, is between the plaintiff and the state. Plaintiff concludes that since there is no issue between the sheriff and the state no intervention is warranted.
The state contends its interest is not adequately represented by the sheriff since the sheriff by his answer takes the position of an innocent stakeholder. The state adds that unless the sheriff claims rights under K. S. A. 1971 Supp. 22-2512 ( 2) and (4), the interest of the state is not protected.
K. S. A. 1971 Supp. 22-2512 (2) and (4) reads as follows:
“(2) Money shall be restored to the owner unless it was contained in a slot machine or otherwise used in unlawful gambling or lotteries, in which case it shall be forfeited, and shall be paid into the county school fund.
“(4) Articles of contraband shall be destroyed, except that any such articles which may be capable of innocent use may in the discretion of the court be sold and the proceeds disposed of as provided in subsection (2)."
The state then argues the coins should be forfeited because they were contained in a slot machine as provided by the statute. The state also argues that slot machines are contraband because they are gambling devices per se. (State, ex rel., v. Myers, 152 Kan. 52, 102 P. 2d 1028.)
The state cites several cases from the federal courts in support of its right to intervention, pointing out that Rule 24 (a) of the Federal Rules of Civil Procedure is nearly identical to K. S. A. 1971 Supp. 60-224 (a). The state relies on Nuesse v. Camp, 385 F. 2d 694 (D. C. Cir. 1967) as supporting a rule that intervention under Rule 24 (a) should have liberal application in favor of intervention. In Nuesse it was said:
“. . . We know from the recent amendments to the civil rules that in the intervention area the ‘interest’ test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. . . .
. . [T]he opportunity to raise the same issue in another forum was no bar to intervention as of right, . . .
“The Commissioner’s right to intervene as a party depends also on whether his interest is adequately represented by existing parties. (Citation.) The prior text of Rule 24 spoke in terms of whether representation by existing parties ‘is or may be inadequate’. The present rule provides for intervention ‘unless the applicant’s interest is adequately represented by existing parties.’
“While the change in wording does not relate to any change in standard as such, it underscores both the burden on those opposing intervention to show the adequacy of the existing representation and the need for a liberal application in favor of permitting intervention.
“. . . [T]he mere fact that there is a slight difference in interests between the applicant and the supposed representative does not necessarily show inadequacy, if they both seek the same outcome. . . . However, interests need not be wholly ‘adverse’ before there is a basis for concluding that existing representation of a ‘different’ interest may be inadequate.” (pp. 700, 702, 703.)
We agree that the liberal application afforded Rule 24 (a) by the federal courts should be applied to K. S. A. 1971 Supp. 60-224 (a). We do not believe, however, that an application of the rule of liberal construction is necessary to support our conclusion in this case. The interests of the State of Kansas in the subject matter of this action are clearly shown by the provisions of K. S. A. 1971 Supp. 22-2512 ( 2) and (4). It is the duty of the attorney general to protect these interests. State, ex rel., v. Board of Education of the City of Beloit, 177 Kan. 540, 280 P. 2d 929. It would be anomalous to conclude that the state loses its right to an interest in property granted by statute because a county sheriff refuses to assert that interest. We are not concerned with who is the proper agent of the state to hold possession of this property. Our concern is with the right of the state to assert before courts of this state its interest in the property. While the ultimate decision of what disposition is made of the subject matter of this action lies with the courts, we cannot deny the right of the state to present to the court its claim to the property. The disposition of the property is not at issue in this appeal and we would extend appellate jurisdiction beyond its limits to consider that issue.
Plaintiff contends the state does not have a right of appeal under K. S. A. 60-2102 (a) (4) because an order denying intervention is not an appealable order. The right to appeal in these circumstances was determined in Ousley v. Osage City; 95 Kan. 254, 147 Pac. 1110. G. S. 1915, ch. 93, art. 22, § 7470, then in effect, referred to a “final order” and K. S. A. 60-2102 (a) (4) refers to a “final decision.” We see no distinction in the applicable statutes and conclude Ousley v. Osage City, supra; is controlling.
Plaintiff further contends this is an interlocutory appeal and the state has not complied with the provisions of K. S. A. 60-2102 (b). An appeal from a “final decision” under K. S. A. 60-2102 (a) (4) does not require compliance with K. S. A. 60-2102 (b), relative to interlocutory appeals.
Reversed with directions to allow intervention. | [
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|
The opinion of the court was delivered by
Fontron, J.:
The defendant, Bobby N. Roberson, was convicted of murder in the second degree. He was sentenced to be confined in the Kansas State Penitentiary for a term of not less than ten years. He has appealed from that judgment.
The setting for the tragedy was the 200 block on East Ninth Street in Junction City, Kansas, an area where it was a common practice, so we are told, for people to assemble on Saturday for social purposes, especially when Saturday came at the last of tihe month. The date of the homicide was August 30, 1969; the time, shortly before 3:30 p. m.
Earlier that day the defendant and his wife had liberally partaken of alcoholic drink, winding up about noon at the Satalite Cafe where they purchased an additional fifth of scotch whiskey which they and some of their friends consumed, interspersed with portions of beer. Sometime after 2:30 Mrs. Roberson felt the urge of nature and finding the toilet facilities in use at the Satalite she proceeded, in the company of her husband, to the nearby business establishment of Tillie Polite, a place known to its patrons as the Polite Cafe.
As Mrs. Roberson threaded her way to the bathroom, she passed near a white man who, seated at the counter, was conversing with a colored acquaintance across the bar. This white worthy made a derogatory remark about Mrs. Roberson which was overheard and resented by her husband. A loud verbal encounter thereupon ensued, which appears to have been accompanied by certain physical manifestations such as pushing and the knocking off of hats.
At this point the proprietress took umbrage at the altercation and, belying the quality suggested by her surname, is reported to have pulled a pistol, at the point of which, after some show of profanity on both sides, she escorted Mr. Roberson and his wife to the door and precipitated their departure.
Repairing to his car, which was parked outside, the defendant told his wife to go down the street — that it seemed there was going to be trouble — and got his shotgun from the trunk of his car. He testified that he could see the decedent’s shadow standing behind the door and did not know whether she was going to shoot or not; that when he stepped inside the door she fired, and he fired. Roberson’s shot struck Tillie Polite in the neck and upper chest, knocking her to the floor and resulting in her premature demise.
After this exchange of gun fire the defendant departed the scene, first taldng his wife to a friend’s house and then driving around for a short time until stopped and taken into custody by a member of the highway patrol. The defendant claimed at first that he was Jimmie Roberson, Bobby’s brother — which proved to be an ineffective artifice of short duration. Upon being given the Miranda warning, Mr. Roberson responded he did not wish to talk, and his wishes in this regard were respected. However, shortly after other officers arrived on the scene Roberson approached one of them and said “I’m going to level with you, I’m Bobby Roberson.” He also said that Tillie had a Luger and was going to shoot him; that he might be going to jail for a long time but was not going to the graveyard; and that “you’ve got to protect yourself.”
A number of trial errors are asserted in the defendant’s statement of points. The first claim of error relates to the refusal of the trial court to instruct the jury on first-degree manslaughter as a lesser included offense of murder, despite the defendant’s request for an instruction of this nature.
First-degree manslaughter is defined in K. S. A. 21-407 (which has since been repealed), as follows:
“The killing of a human being without a design to effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration or attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in cases when such killing would be murder at the common law, shall be deemed manslaughter in the first degree.”
Long ago this court determined that the misdemeanor which the statute contemplates may be an offense which is directed against the deceased victim himself, and that the term “misdemeanor” includes the offense of simple assault and battery. (State v. Spendlove, 47 Kan. 160, 28 Pac. 994; State v. Bassnett, 80 Kan. 392, 102 Pac. 461; State v. Singleton, 67 Kan. 803, 74 Pac. 243; State v. Merriweather, 136 Kan. 337, 15 P. 2d 425; State v. Booker, 200 Kan. 166, 434 P. 2d 801.)
It is also a rule of respectable lineage in this jurisdiction that where, in a criminal prosecution, the evidence is such as to support a finding of guilty of an offense lesser than but included within the more serious offense on which the accused is being tried, the trial court should instruct the jury as to the lesser included charge. As the rule relates to homicides, this court said in State v. Fouts, 169 Kan. 686, 221 P. 2d 841:
“In prosecutions for homicide it is the duty of the trial court to instruct the jury, not only of the offense charged but as to all lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced, even though such instructions have not been requested or have been objected to.” (Syl. ¶ 3.)
In the Merriweather case, the accused was charged with first-degree murder and the trial court, in its charge to the jury, included an instruction on first-degree manslaughter as a lesser included offense. The defendant was convicted of manslaughter, and on appeal he assailed the giving of the instruction as error. In rejecting the contention, this court said:
“. . . Defendant complains because manslaughter in the first degree was thus submitted to the jury. The evidence was susceptible of an interpretation warranting the instruction. It was not necessary that the ‘crime or misdemeanor not amounting to a felony’ should be independent of and separate from the homicide, and defendant would have had good ground to complain if the instruction had not been given. . . .” (p. 338.)
This language was quoted with approval in our more recent case of State v. Booker, supra.
In expounding the same principle in a somewhat earlier era the court, in State v. McAnarney, 70 Kan. 679, 79 Pac. 137, had this to say:
“. . . So it has been repeatedly held that if there is slight evidence of a lower degree of an offense, although it may appear to the court to be weak and unsatisfactory, the question should be submitted to the jury, and a court is only justified in refusing to charge the jury on the lower degree of homicide when the testimony shows beyond question that the defendant is guilty of the higher offense. (Citing cases.)” (p. 686.)
Although the evidence as it might relate to first-degree manslaughter is far from overwhelming in this case, we consider it sufficient to have required the court to instruct upon the issue. The accused had been imbibing heavily during the day and there was evidence from which the jury might well infer that by 3:30 in the afternoon he was in a confused and maudlin state of mind. No prior animus toward Tillie Polite may be deduced from the record. On the contrary, it would appear the defendant had assisted the deceased in carrying some groceries that very morning and that the two of them had previously gone on fishing expeditions together.
There is testimony in the record that the deceased, with gun firmly in hand, had followed the defendant and his wife all the way to the door of the restaurant; that she opened the door and was standing on the step with her gun in hand; that as the defendant took his gun from the car — which required some three seconds — he could see her shadow standing behind the door and he didn’t know whether she was going to shoot or not, but he knew she had the gun. There is evidence that two shots were fired, one being from Tillie’s gun, and that the first shot fired was Tillie’s.
We think the evidence is such that the jury might have concluded that the defendant in his maudlin condition did not intend to make a felonious assault upon the deceased, and did not mean to discharge his weapon until after he was fired upon, but that he intended no greater show of force than that inherent in an unlawful assault. It is our opinion that an instruction on first-degree manslaughter should have been given in this case, and that the court’s refusal to include such an instruction in its charge to the jury constituted error.
The defendant next attacks the sufficiency of the information on the ground that it does not allege the killing to have been committed maliciously. K. S. A. 21-402, the statute which was in effect when the instant homicide occurred, provides as follows:
“Every murder which shall be committed purposely and maliciously, but without deliberation and premeditation, shall be deemed murder in the second degree.”
The information filed by the state fails to follow the plain and explicit language of the statute; it alleges only that Mr. Roberson unlawfully, feloniously and willfully killed Tillie Polite by shooting her with a gun. Consequently, the defendant argues, the information is deficient in that it fails to allege one of the essential ingredients of murder, to wit, malice.
A similar contention is made with respect to the court’s instruction purporting to define second-degree murder. In general, the instruction follows the language contained in the information, and it charges the jury in essence that if Bobby N. Roberson “on purpose and willfully” shot and killed Tillie Polite and was not justified in using the force which he used, then the jury must find him guilty of murder in the second degree. Again, the element of malice is missing.
However, the state responds that the term “willfully” imports “malice”; that use of such term is sufficient to supply the element of malice and to cure whatever defect might inhere both in the information and in the instruction. Although language may be found in a good many cases which equates the terms “willful” and “malicious”, this court is of the opinion that the word “willfully”, as it relates to the crime of murder, is not the legal equivalent of “maliciously.”
At common law the distinguishing characteristic of murder was the presence of malice, express or implied. This is made clear by all the ancient authorities as well as by more modem pronouncements, including many of our own. In the early case of Craft v. State, 3 Kan. * 450 [2d Ed. 447], the court stated that:
. . The law makes malice a necessary ingredient in both degrees of murder, and it is the same thing whether shown to exist by one set of circumstances or another. Its existence, as a fact, must be proved on every charge of murder. The law never presumes its existence. . . (p. 486.)
The rule is again set forth in State v. Smith, 78 Kan. 179, 96 Pac. 39, in the following language:
“Malice is a material and important element in the crime of murder, and every defendant charged with that offense has the right to have the question of whether or not the act was actuated by malice submitted to the jury whenever there is evidence from which its absence can be inferred.” (Syl. f 1.)
See, also, State v. Jensen, 197 Kan. 427, 417 P. 2d 273, and the many authorities which are cited therein.
The eminent English jurist and authority on the common law, Sir William Blackstone, said of malice aforethought: “This is the grand criterion which now distinguishes murder from other killing: and this malice prepense, malitia prsecogitate, is not so properly spite or malevolence to the deceased in particular, as any evil design in general; the dictate of a wicked, depraved, and malignant heart . . . and it may be either express or implied in law.” (4 Bl. Comm. 198.) Expressions of similar import are to be found among our own decisions. (State v. Yarborough, 39 Kan. 581, 18 Pac. 474; State v. Murray, 83 Kan. 148, 160, 110 Pac. 103; State v. Thomas, 157 Kan. 526, 142 P. 2d 692.)
That willfulness is not to be equated with maliciousness in a case of this character is indicated in PIK 56.04, where the terms are defined as follows:
“(a) Maliciously
Maliciously means wilfully doing a wrongful act without just cause or excuse.
“(c) Wilfully
Wilfully means conduct that is purposeful and intentional and not accidental.”1
The latter definition is drawn from our statute, K. S. A. 1971 Supp. 21-3201 (2).
Cases from other jurisdictions have also recognized a distinction. In Bundy v. State, 114 Neb. 121, 206 N. W. 21, the Supreme Court of that state has said:
“. . . Wilfully is not a synonym of unlawfully or maliciously or fraudulently. Bouvier in his Law Dictionary defines wilfully as ‘distinguished from maliciously in not implying an evil intent. ... It implies that the act is done knowingly and of stubborn purpose, but not with malice.’ . . .” (p. 123.)
The New York Court of Appeals in Anderson v. How, 116 N. Y. 336, 22 N. E. 695, in comparing the two terms, distinguished them in this fashion:
. . Willfulness is implied in maliciousness, but maliciousness is not implied in willfulness. . . .” (p.342.)
To like effect the Supreme Court of New Mexico observed in Rascoe v. Town of Farmington, 62 N. M. 51, 304 P. 2d 575:
“. . . ‘Willfully’ is not necessarily employed as a synonym of ‘unlawfully’ or maliciously’ or ‘fraudulently,’ since, ordinarily, it does not embrace an evil intent. . . .” (p. 55.)
See, also, Brown v. Brown, 124 N. C. 19, 32 S. E. 320; Parker v. Parker, 102 Iowa 500, 71 N. W. 421.
One further complaint made by the defendant requires consideration. It relates to the trial court’s instruction defining manslaughter in the third degree. K. S. A. 21-413, under which we assume the instruction was given, reads as follows:
“The killing of another in the heat of passion, without design to effect death, by a dangerous weapon, in any case except wherein the killing of another was justifiable or excusable, shall be deemed manslaughter in the third degree.”
In the court’s instruction setting out the elements of third-degree manslaughter no reference is found to the phrase “heat of passion.” This element of the offense is entirely missing from the instruction. We believe the court was in error in omitting a constituent element of the offense which was explicitly set forth in the statute. The omission seems puzzling in view of the fact that a definition of the phrase is contained in a preceding instruction.
Other claims of error are urged, but we regard them as requiring no discussion in view of our disposition of the appeal.
The judgment of the court below is reversed with directions to grant the defendant a new trial in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Owsley, J.:
This action involves a family plan life insurance policy. Plaintiff prevailed in the trial court and defendant appeals. A determination of the issues on appeal depends on the effect of defendant’s delay in acting on plaintiff’s application for the policy.
Mr. Euwer, a collecting and soliciting agent for the defendant, and Mr. Graham, district manager for the defendant, met plaintiff at his mother-in-law’s home and while there Graham filled out an application for insurance. After the application was completed by Graham, Euwer made the statement that he was glad to have him (the plaintiff) with the company. The application was for a family plan type of insurance covering plaintiff, plaintiff’s wife, and their four minor children. Plaintiff read the application but was primarily interested in answers he had given Graham to see that they were correct. Plaintiff, at the time the application was made, did not have the money to pay the insurance premium, which was necessary before the application would be sent to the home office. Neither Euwer nor Graham discussed their authority or lack of authority with plaintiff at any time. On February 7, 1969, Euwer came to plaintiff’s home to collect the premium payment. Plaintiff paid the initial premium of $15.36 and received a receipt. At this time, Euwer stated to the plaintiff that upon the payment of the premium he was insured. The insurance application, along with the premium, was kept by the defendant company for approximately four months. The company did not contact the plaintiff during this period of time even though he had never changed his address and his mother-in-law had been in contact with defendant’s agent, Euwer, on several occasions. On June 1, 1969, the plaintiff, upon arriving home from the funeral of his minor daughter, was met by Euwer who tendered him $15.36 and requested a return of the receipt. Plaintiff declined to accept the refund.
The application, as far as pertinent to this appeal, reads as follows:
“. . . (2) The Company shall have sixty (60) days from the date of receipt of the application at its Home Office in Webster Groves, Missouri (which is agreed to be a reasonable period) to determine the insurability of Proposed Insured on the basis on which application is made or on another basis. If the policy is not received by the undersigned(s) within that period the application will be deemed to have been declined by the Company. . . .”
The receipt given plaintiff for the initial premium stated in part:
“. . . The insurance under the policy for which application is made shall be effeotive on date of this receipt or the date of completion of the medical examination (if, and when required by the Company), whichever is the later date, if in the opinion of the authorized Officers of the Company at its Home Office in Webster Groves, Missouri, the Proposed Insured is insurable and acceptable for insurance under the rules and practices on the plan of insurance. . . .
“Company shall have 60 days from date of application to consider and act upon the application. Failure of the Company to offer a policy within such 60 days shall be deemed a declination.”
The trial court, acting without a jury, concluded that the defendant was estopped to deny insurance coverage and entered judgment for plaintiff for $1,000 and costs, including an allowance of $300 for attorney fees.
Defendant first argues the trial court erred in finding defendant was estopped for the reason that estoppel was not an issue under the pleadings. It is true that plaintiff did not allege facts which would form a basis for the trial court’s finding; however, the record discloses that both parties introduced evidence, without objection, on the circumstances surrounding the application, issuance of receipt, and payment of premium.
K. S. A. 1971 Supp. 60-215 (b) reads as follows:
“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made at any time, even after judgment; but failure so1 to1 amend does not effect [affect] the result of the trial of these issues. . . .”
In the absence of a pretrial order defining and limiting the issues, and in the absence of objection by a party, this statute permits variance between pleading and proof in order to further the purposes “of the Code of Civil Procedure to provide a simplified procedure for the prompt determination of legal disputes according to matters of substance rather than matters of form.” (Schreppel v. Campbell Sixty-six Express, Inc., 201 Kan. 448, 441 P. 2d 881, pp. 451, 452.) We can find no merit in defendant’s argument in view of the obvious purpose of the statute and its construction in Schreppel.
Defendant cites Agee v. Kansas Highway Commission, 198 Kan. 173, 422 P. 2d 949, in support of its position. Although Syllabus ¶ 4 of that case appears in accord with defendant’s contention, a careful reading of the opinion discloses the existence or nonexistence of fault or liability was not an issue and could not be considered in determining whether the owner of a motor vehicle was required to comply with the security provisions of the Motor Vehicle Safety Responsibility Act. Clearly, the issue was not entirely a pleading question.
Defendant further contends the court erred in finding defendant was estopped to deny insurance coverage and erred in finding there was no competent evidence to support such a conclusion.
The trial court found in favor of the plaintiff and stated in the journal entry of judgment that defendant was estopped to deny coverage. We are not concerned with whether or not the trial court in finding in favor of plaintiff based its decision on the correct reason. We are concerned with whether or not the trial court’s decision was correct for any legal reason. (Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P. 2d 858.)
On February 7, 1969, the initial premium for the family policy was paid and a receipt issued. The application for the policy was in the hands of the insurance company at that time. The insured heard nothing from the company until June 1, 1969, on his return from his daughter’s funeral, when the company tendered to the insured the initial premium and requested the return of the receipt. These facts raise the question as to the effect of an insurance company accepting an application and the initial premium for a family life insurance policy; then failing to communicate with the applicant for three months and twenty-one days, at a time following the death of one of the insured’s children.
In Waldner v. Metropolitan Life Ins. Co., 149 Kan. 287, 87 P. 2d 515, a policy of life insurance had lapsed and an application for reinstatement, accompanied by check for the premium, was made. The company retained the check, but failed to act on the application until after the insured’s death two months after the date of the application. Judgment was entered for the plaintiff and on appeal we stated:
“Of course, the defendant, having received the application for reinstatement and the premium money, had a reasonable time within which to act. (Annotation, 105 A.. L. R. 484.) Ordinarily the question of what constitutes a reasonable time is a question of fact for the jury under the circumstances of each particular case, although occasionally a particular case may present facts from which the court may find as a matter of law that the delay was reasonable or unreasonable. (Annotation, 105 A. L. R. 486-489.) In the instant case the trial court was not in a position to pass upon that question as a matter of law, as the jury was required to pass upon the question of whether a demand had in fact been made for a medical examination. The jury reconciled that disputed issue in favor of the plaintiffs. The defendant could not indefinitely hold the application for reinstatement without disapproving it, retain the money of the insured until long after her death, and thereafter escape liability on the ground the insured had not provided satisfactory proof of insurability. . . .” (p. 292.)
In Harvey v. United Ins. Co., 173 Kan. 227, 245 P. 2d 1185, plaintiff’s father (insured) on April 6, 1949, made application for insurance on his life and paid to defendant the first month’s premium. The insurance company held the application and took no action until after the insured died on June 23, 1949. We held that under these facts a cause of action was stated, and cited Waldner in support of our conclusion, pointing out that the company “had a reasonable time and no more than a reasonable time in which to act.”
Defendant refers to the language of the application which provides that if the policy is not received by the applicant within sixty days the application will be deemed to have been declined by the company. Defendant also refers to the language of the receipt which provides if the company does not offer a policy within sixty days the application shall be considered declined. Based on these provisions defendant contends plaintiff was bound to know his application had been rejected after sixty days had passed, and any further delay in issuing the policy could not have misled him. Defendant also argues that, notwithstanding the failure to return the initial premium, no contract of insurance ever came into being when like provisions were in the application and the receipt, citing Maldonado v. First National Life Insurance Co., 79 N. M. 354, 443 P. 2d 744.
The provision concerning automatic declination after sixty days was not present in Waldner and Harvey. We have, however, considered this provision in Service v. Pyramid Life Ins. Co., 201 Kan. 196, 440 P. 2d 944. In this case we held the insurance company liable to the applicant on the theory that the payment of the initial premium and the issuance of a receipt constituted a contract of temporary insurance. We said:
“Many cases in the courts indicate a trend to construe the conditions liberally, and to treat receipts similar in wording to the one before us as binding during the interim regardless of the ultimate action of the insurance carrier on the application. These decisions are based upon the assurance that if the receipt meant anything, no other result could have been intended by the parties, for unless the insured was to be protected against death during the interim period there would be no advantage to him in paying his premium in advance. If the company did not intend that there should be insurance effective pending the date of the application, or medical, as in this case, and the date of the approval of the risk and the issuance of the policy, then the company would be charging and obtaining the full amount of the premium for one year, while the period of actual insurance would be as many days less than one year as there were days intervening between the date of the application and the approval. In other words, the insured would be paying for something which he did not receive. . . .” (p. 214.)
The defendant distinguishes Service from the facts in the instant case for the reason that in Service a regional manager of the de fendant company had the same power as a general agent and that his statement to the applicant, that the applicant was covered on receipt of the initial premium, was binding on the company. We do not have a general agent in this case. However, the import of the reasoning in Service, as far as temporary insurance was concerned, was not based on the status of the agent who made the statement binding the coverage.
We recognize that the death of the applicant in the Service case occurred during the sixty-day period. The insured’s child in the instant case died forty-five days after the sixty days had passed. The reasoning in Service, supporting the theory of temporary insurance, is consistent with an extension of the doctrine of temporary insurance until the company acts upon the application.
This is also in accord with the rule of law established in Waldner and Harvey, that the company, having received the premium, had a reasonable time and no more than a reasonable time in which to act. It should be pointed out that in the application made by the plaintiff for insurance it was provided that the company would have sixty days from the date of the receipt of the application to determine the insurability of the applicant, and the application further provided that sixty days was deemed to be a reasonable period. In view of this it would logically follow that the insurance company should have returned the premium at the end of the sixty-day period since they had agreed in writing that this was the extent of the time they needed to determine the insurability of the applicant. Any delay in returning the premium thereafter falls directly under the rule established in Waldner and Harvey.
The only reason for failure to return the premium at the end of the sixty days would be that the company was still contemplating issuing the policy. We cannot support a rule which would permit an insurance company to make a decision on an application after the insured’s death. We conclude under the facts disclosed in this record that when an application for life insurance is made and the company receives the initial premium and issues a receipt therefor, a policy of temporary insurance is created and said policy of temporary insurance continues in effect until the insurance company declines the application, notifies the insured, and returns the premium, notwithstanding the provisions of the application and the receipt to the contrary.
The defendant argues that attorney fees should not be allowed in this case for the reason that the defendant had in good faith a reasonable basis for refusing to pay the plaintiff’s claim. We have stated in many instances that the allowance of attorney fees depends upon the facts and circumstances of each particular case and only when the insurer refuses without just cause or excuse to pay in accordance with the terms of the policy can an allowance be made to the insured for reasonable attorney fees. (Parker v. Continental Casualty Co., 191 Kan. 674, 383 P. 2d 937.)
In view of the necessity of construing the language of the application and the receipt for the first time as applied to the facts disclosed by this record we feel the defendant had just cause and excuse to refuse payment; therefore, no attorney fees should be allowed. Costs are assessed against the defendant.
The judgment is affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action from a conviction of felony theft (K. S. A. 1971 Supp. 21-3701). The appellant was found guilty by a jury in the district court of Cowley County, Kansas, and was thereafter sentenced to a term of confinement of not less than one nor more than ten years.
Bird’s drug store located in Winfield, Kansas, was broken into sometime during the late night hours of August 30, 1971, or the early morning hours of August 31, 1971. Testimony established that at least nine Timex watches, 20 to 30 cartons of cigarettes, and a large quantity of commercial drugs were taken from the store.
Entry to the building was gained by breaking out a second floor window. The first floor was entered from the second floor by cutting a hole in the ceiling. No evidence was found at the scene which could be used to identify the persons breaking and entering the building.
On September 7, 1971, New Mexico State Police Trooper Mike Fishburn stopped a 1966 Ford automobile in which he observed three persons. The three occupants of the vehicle were Don Ulriksen (defendant-appellant), his brother, Noel Ulriksen and the owner of the vehicle, Gene Brown. When the officer stopped the vehicle the appellant was driving and Brown was sitting on the passenger side of the front seat. The appellant’s brother was lying down asleep in the back seat.
The officer testified he stopped the car to investigate whether it had been stolen. He was alerted because the lock cylinder was knocked out of the trunk. This commonly indicates the method used by a thief to make entry into a vehicle which he has stolen. Upon stopping the vehicle the officer approached the appellant and requested to see his drivers license and registration papers. The appellant presented his driver’s license and Mr. Brown presented the vehicle registration. The officer also asked the appellant if he had any guns, liquor, knives, or narcotics in the car. The appellant responded no to the question, although the officer could see a bottle of liquor at the feet of Mr. Brown. He thereupon asked the appellant for permission to search the car which the appellant granted. The officer then asked the appellant if he would “please get out of the car and open up the trunk”. The appellant complied with the request. The officer observed a gray suitcase in the trunk and asked the appellant who the owner was. The appellant answered, “It’s mine.” When the officer requested the appellant to open the suitcase, the appellant denied ownership of it. The officer then walked around the vehicle and asked Mr. Brown if he could search the car and anything in it to which Brown replied, 'Tes, you can.” The officer then walked back to the rear of the car and opened the suitcase in which there was a brown bag. He opened the bag and discovered that it contained bottles filled with pills. The officer thereupon arrested the three occupants of the vehicle, read to them their constitutional rights, handcuffed them, and continued his search of the suitcase and trunk area.
The officer discovered three Timex watches, fifteen cartons of cigarettes and various bottles of pills and drugs. The officer testified that at least one bottle said “Bird’s Rexall Drugs” on the label.
The appellant contends the trial court erred in overruling his pretrial motion to suppress evidence because it was obtained through an unlawful search and seizure. The appellant contends the search was conducted without a warrant, prior to a valid arrest, without probable cause, without advising the appellant of his rights and without valid consent.
The state does not contend the search was made with a warrant nor incident to a valid arrest. The state does contend the search was made with the valid consent of both the driver of the vehicle and the owner of the vehicle. It is a settled rule of law in both the federal and state courts that the constitutional immunity from unreasonable searches and seizures may be waived by a consent to a search or seizure. (State v. Boyle, 207 Kan. 833, 486 P. 2d 849 and cases cited therein.)
The appellant argues the consent to the search was invalid and was not freely given because the officer’s assertion of his lawful authority was coercive. The appellant relies upon Bumper v. North Carolina, 391 U. S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788, to support this point.
In Bumper, the United States Supreme Court reversed a North Carolina decision in which the defendant was convicted of rape and two counts of felonious assault. The admission into evidence of a rifle seized during a search of the defendant’s home, which was owned by his grandmother, was held to be constitutional error where the defendant’s grandmother consented to the search only after one of the police officers conducting the search had announced to her that he possessed a warrant for the search. There consent to the search was obviously given in acquiescence to the police officer who stated under color of his lawful authority that he possessed a search warrant. This was said to be implied coercion.
In the case at bar there was no such implied coercion. Here the officer did not assert he possessed a search warrant, nor did he threaten the appellant if he were not allowed to search the vehicle. It is clear from the record the officer merely requested permission to search the vehicle and the permission was given promptly, freely, unequivocally and without objection. It should be noted the only testimony at trial pertaining to the search and seizure in question was given by Officer Fishburn, as the appellant chose not to testify.
The appellant next contends the search and seizure were made without advising him of the rights guaranteed to each citizen by the 4th, 5th, 6th, and 14th Amendments to the Constitution of the United States. To be more specific, he complains that he was not given the Miranda warning before permission was requested to search the automobile he was driving.
This court has consistently adhered to the rule that the validity of a consent to the search of private premises does not depend on the owner’s having first been given the warning delineated in Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. (State v. Stein, 203 Kan. 638, 456 P. 2d 1 and cases cited therein.)
The trial court properly overruled the appellant’s motion to suppress the evidence obtained in the search.
The appellant contends he was not advised of his right to counsel nor was he afforded counsel at his appearance before a judge in New Mexico where he waived extradition proceedings.
Roth New Mexico and Kansas have enacted the Uniform Criminal Extradition Act. K. S. A. 1971 Supp. 22-2710, with reference to extradition provides in pertinent part,
“No person arrested upon such warrant shall be delivered over to the agent . . . unless he shall first be taken forthwith before a judge . . . who shall inform him . . . that he has the right to demand and procure legal counsel. . . .”
A review of the record indicates all procedural aspects of the appellant’s extradition proceedings in the probate court of Torrance County, New Mexico, were in compliance with the pertinent statutory provisions, with the exception of the provision that the accused shall be informed of his right to demand and procure legal counsel. It cannot be determined from the record whether the appellant was informed of his right to counsel because the record is entirely silent on the subject.
Assuming, without deciding, the appellant was not informed of Ids right to counsel, this fact does not entitle the appellant to relief. Here the appellant does not claim he was denied due process of law. The appellant says in his brief:
“. . . It seems to be settled that failure to provide counsel at extradition proceedings is not a denial of due process of law. . . .”
There is a more basic reason why the appellant must be denied relief. It is established that the jurisdiction of a district court in Kansas to try a person for a criminal offense does not depend on how he came to be in the state. (State v. Wellman, 102 Kan. 503, 170 Pac. 1052; Stebens v. Hand, 182 Kan. 304, 320 P. 2d 790; Converse v. Hand, 185 Kan. 112, 340 P. 2d 874; Smith v. State, 196 Kan. 438, 411 P. 2d 663; Thompson v. State, 197 Kan. 630, 419 P. 2d 891; State v. Eaton, 199 Kan. 610, 433 P. 2d 347; Yurk & Brady v. Brunk, 202 Kan. 755, 451 P. 2d 230; and Bruffett v. State, 205 Kan. 863, 472 P. 2d 206.)
The appellant contends the trial court erred in overruling his motion to dismiss the charges against him because he was not afforded a preliminary hearing within ten days of his arrest as required by K. S. A. 1971 Supp. 22-2902.
The record discloses the appellant first appeared before the city court of Winfield, Kansas, on September 13, 1971, at which time the case was continued to September 20, 1971. This continuance was at the appellants request to enable him to obtain counsel of his own choosing. On September 14, 1971, the appellant appeared before the court again, this time with retained counsel. He appeared again on September 20, 1971, in person and by counsel. At this appearance, the preliminary hearing was set for September 28, 1971, by agreement. On that day the state for good cause shown requested a continuance in order to locate an unavailable witness. Over objection the continuance was granted, and the preliminary hearing was not conducted until October 5,1971.
In State v. Winter, 203 Kan. 458, 454 P. 2d 491, this court dealt with a contention similar to that now advanced by the appellant:
“The district court specifically found that the continuance to February 28, was granted at the request of Mr. Parmiter on behalf of the appellant and for his sole and exclusive benefit. There was no allegation the delay was unreasonable or unnecessary, or resulted in the denial of a fair trial, hence, the claim is without merit.” (p. 460.)
It should be noted that the provisions of K. S. A. 1971 Supp. 22-2902 are similar to those dealt with in State v. Winter, supra. Here the appellant first requested a seven day continuance to retain coun sel and, after the expiration of that seven day continuance, he appeared with counsel and agreed to a preliminary hearing date eight days hence. He cannot be heard to complain of this delay under 22-2902, supra. Further continuance was granted for good cause shown. It follows the trial court did not err in overruling the appellant’s motion to dismiss because the preliminary hearing was not held within the ten day period mentioned in the statute.
The appellant contends the trial court erred in admitting into evidence goods which were not proven to have been taken from the owner claiming loss. He also contends there was no evidence sufficient to establish that the appellant was in possession of goods recently stolen of a value of more than $50.
An employee of Bird’s drug store, Lee Hankins, testified a list of the drugs stolen from the store “fairly well complied” with a list of drugs found in the appellant’s suitcase. He estimated the value of these drugs to be $400. Mr. Hankins further testified that a portion of the drugs found in the appellant’s suitcase, having a value of $25 to $30 had definitely come from Bird’s drug store.
Another witness, Norman Shanks, testified the three Timex watches found in the trunk of the car were “of a type that we had in the case, . . .”
Although the cartons of cigarettes were never admitted into evidence, an employee of the Goad Candy Company, which services Bird’s drug store, testified the cartons of cigarettes found in the trunk of the vehicle all bore tax stamps which showed they were from Coad’s Cowley County trade area.
A. V. Froemming, chief of police in Winfield, Kansas, testified the appellant admitted having been in Winfield on August 29th, 30th and on the morning of August 31st.
The appellant’s assertions of error on this point go to the weight of the evidence, not its admissibility. On the record here presented there was sufficient evidence presented at the trial from which the jury could find the appellant committed the crime of felony theft.
In a criminal action the function of this court on appeal is not to decide whether guilt is shown by the evidence beyond a reasonable doubt, but to ascertain whether there was, in evidence, a basis for a reasonable inference of guilt. (State v. Kliewer, 210 Kan. 820, 504 P. 2d 58 and cases cited therein.)
Finally, the appellant contends the verdict was contrary to law in that the only evidence against him was possession of goods alleged to have been recently stolen. He argues there is no evidence he was in the exclusive possession, or in the joint possession of the goods with one in complicity in the crime.
The appellant acknowledges the well established rule in this jurisdiction that exclusive possession of recently stolen goods, when unexplained may be sufficient to uphold a conviction; even in the absence of corroboration. (State v. Oswald, 197 Kan. 251, 254, 417 P. 2d 261.) But he argues the stolen goods were not in his exclusive possession because the suitcase was in the trunk of Gene Brown’s automobile.
This court stated in State v. Sharp, 174 Kan. 672, 675, 258 P. 2d 306,
“. . . the words recent’ and ’exclusive’ are relative terms, and the contention for a literal application of their definitions cannot be sustained. . . .”
Sharp, was recented quoted with approval on this identical point in State v. Ogden, 210 Kan. 510, 502 P. 2d 654.
In the instant case the stolen goods were discovered only seven days after the theft occurred and in a suitcase the appellant admitted was his. On the record here presented we cannot say the verdict was contrary to the law.
No reversible error having been shown, the judgment of the lower court is affirmed. | [
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Per Curiam:
The jury evidently did not believe that part of the testimony of the engineer and fireman which indicated that the fire was already burning when the train passed. Having seen the witnesses and observed their conduct upon the witness-stand, and having heard all the evidence in the case, the jury may have been justified in its disbelief. From other portions of the testimony of these witnesses, and from the testimony of other witnesses, the jury had the right to conclude that engine No. 289 set the fire. (Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876.)
There is abundant and unquestioned evidence to support all the statements of the twelfth finding of fact except that the train was started too fast, and there is substantial evidence from which an inference of starting too fast fairly may be derived. Something of an appearance of haste at the switch is disclosed; the fireman seems to have been quite busy in rousing the energy of the fire, and with a full load, on a slight up grade, a speed of from twelve to fourteen miles per hour was soon attained.
It is true, as plaintiff in error asserts, that findings Nos. 13 and 14, asked by the defendant itself, were outside the issues and have no effect upon the verdict —the plaintiff’s amended petition charging no negligence except in management and operation, and the instructions to the jury making no reference whatever to defective machinery.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
The important question arising upon the admitted facts is, Was the refusal of the Taylor Grain Company to accept the car of corn tendered June 19 and to pay the draft on that day such a violation of the contract as to relieve the Bennett Commission Company from further obligations under it?
Parties may put such legal conditions into a contract as they can agree upon. In the contract under consideration it was agreed that when the commission company should deliver a car of corn on the tracks in North Topeka, and secure a certificate of weights and grade, and present to the grain company a bill of lading therefor, with certificate of weights and grade, together with draft for the value, according to the terms of the contract, the grain company would receive the car and pay therefor upon demand. The commission company in this complied literally with the terms of the contract, and the grain company failed in the performance of their part. One of the contentions of the plaintiff in error is that the court erred in the following instruction to the jury:
“In this case one of the questions for you to determine will be whether or not the defendant has been relieved from liability on this contract or contracts. If in the performance of this contract the defendant presented the necessary bill of lading, certified weights and grade, and draft, and the plaintiffs refused to pay the draft, then the defendant would have a right to refuse to perform the contract further, because when it had taken the necessary steps, when it had furnished the bill of lading and the certificate showing that the corn was up to grade, and the plaintiffs failed and refused to pay it, then it would not have to perform the contract further, and would not have to make a second tender of some part of the corn. But in this connection I further instruct you that if the defendant in this case, in attempting to perform this contract on its part, had a car-load of corn, and had a bill of lading and the necessary inspection certificate or ticket, and drew a draft on the plaintiffs and left it in the Merchants’ National Bank on the 19th, about noon, to be presented for payment, and the collector or agent of that bank went to the plaintiffs’ place of business in North Topeka, but did not find any person there to present the draft to, and left a note to the effect that there was a draft drawn upon the plaintiffs and for collection in the Merchants’ National Bank, and that thereafter, and on that same afternoon, the young lady who testified here was the cashier of the plaintiffs, and she returned to the office and found the note calling attention to the fact that a draft had been drawn upon the plaintiffs, and that she then immediately, or shortly thereafter, came over to this side and procured a certified check payable to the Merchants’ National Bank, and procured that certified check within a reasonable time, and took it to the bank, and when she got there found that the draft had been taken up by the defendant and that the bank had then closed, and that on the next day she procured a certified check payable to the defendant in this case and took it up and presented it to the defendant, and requested that it turn over the papers to her, and that it refused to do so, then I instruct you that that would not constitute a forfeiture of the contract; in other words, that the defendant would still be liable under the contract sued upon in this case.”
The court told the jury in the latter portion of this instruction that if upon the day after the draft had become dishonored the buyers secured a certified check for the value of the corn and presented it to the Bennett Commission Company, and requested that it turn over the bill of lading, draft and certificate of weight and grade to the buyers, and the commission company refused to do so, this would be a compliance by the Taylor Grain Company with the conditions of the contract. This was error. By this instruction the court extended the time for payment beyond that expressly agreed upon by the parties. It is beyond the power of a court to put conditions, limitations or extensions on the explicit terms of a contract. If the terms of the contract are definite and certain, the court must leave the parties where they have placed themselves by their agreement. If the Taylor Grain Company -wished time after delivery to make payments, they should have caused such condition to be made a part of their agreement. Having admitted, as they did in their reply, that the agreement was that they should make such payment on demand, the court could not extend the time, or insert other conditions in the agreement. If it could extend the time within which the buyers might pay for the corn beyond the time expressed in the agreement, it could, by the same rule, extend the time within which the seller might make final delivery, and instead of this time expiring on June 21, as agreed, it could be made to expire on June 22.
By the agreement of the parties the draft was payable on presentation, provided it was accompanied with the bill of lading and certificate of weight and grade. If the draft was not paid on that day it became dishonored, and would be charged back, either to the account of the drawer or transmitter. In this case, after dishonor, the drawer was requested to take up the draft, which it did, and the bill of lading, which was the title to the corn, was returned to it. Thereafter it was not required to hold the corn subject to any subsequent order of the Taylor Grain Company, but might immediately dispose of it. The Taylor Grain Company, having failed to meet their obligation under the contract, forfeited all right to insist upon a delivery of the corn, or to recover damages for a nondelivery thereof.
Many other questions are argued by plaintiff in error which by reason of the views here expressed become immaterial. For the error in giving the instruction the judgment is reversed and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
On the 7th day of October, 1903, Mrs. E. I. Knerr, being the owner of a general stock of merchandise contained in a building situated in Manchester, Kan., procured a policy of insurance in the Shawnee Fire-insurance Company, of Topeka, Kan., on the stock in the sum of $2000. On the night of February 2, or the morning of February 3, 1904, the stock was totally destroyed by fire. The company paid the plaintiff $1500 by way of settlement. This action was brought to recover the remaining $500 of the policy, on the ground that the settlement was obtained by duress. Of the many questions argued by the plaintiff in error, the one.that is decisive of the case in this court arises under the following condition of the policy:
“The assured under this policy hereby covenants and agrees to keep a set of books showing a complete record of business transacted, including all purchases and sales, both for cash and credit, together with the last inventory of said business; and further covenants and agrees to keep such books and inventory securely locked in a fire-proof safe at night, and at all times when the store mentioned in the within policy is not actually opened for business, or .in some secure place not exposed to a fire which would destroy the house where such business is carried on; and, in case of loss, the assured agrees and covenants to produce such books and inventory, and in the event of a failure to produce the same this policy shall be deemed null and void, and no suit or action at law shall be maintained thereon for any such loss.”
The insured neglected to keep a safe. She permitted the books used in conducting the business to remain in the store where the insured stock was kept at night, where they could not escape destruction if the stock and building burned. The building and stock were destroyed by fire on February 2 or 3, 1904. The ledger, the cash-book, the day-book of credit sales, the bank-book, the invoices — in fact, all of the books pertaining to the business, except a book called a “ledgerette,” which is said to have contained the credit accounts — were in a desk in the building and were destroyed.
The company contends that by the failure of the insured to comply with this condition of the contract of insurance she forfeited her right to recover anything under the policy. This provision was inserted in the policy so that if a fire should occur the company would have some data from which it might approximate the actual value of the stock destroyed. It is not an unreasonable precaution; it is one with which the insured might very easily have complied. In any event, the parties making the contract agreed that it should be performed by the insured, and since it is a part of the contract it cannot be ignored or arbitrarily set aside. It is generally held that neglect on the part of the insured substantially to comply with a clause in an insurance policy to keep the books used in conducting the insured’s business in an iron safe, or in some place where they will not be destroyed in case the place in which the insured stock is kept is consumed by fire, will avoid the policy. (Hanover Fire Ins. Co. v. Crawford, 121 Ala. 258, 25 South. 912, 77 Am. St. Rep. 55; Shoe Co. et al. v. Insurance Co., 8 Tex. Civ. App. 227, 28 S. W. 1027; Standard Fire Ins. Co. v. Willock, 29 S. W. [Tex. Civ. App.] 218; Goldman et al. v. Insurance Co., 48 La. Ann. 223, 19 South. 132; Keet-Rountree Drygoods Co. v. Ins. Co., 100 Mo. App. 504, 74 S. W. 469.) We see no good reason for not adhering to this rule in the present case.
The binding force of this clause and the consequent effect on the plaintiff’s right to recover in case of noncompliance therewith are not strongly denied. The insured contends that the company, by the conduct of its agents and adjuster, waived the performance of this condition. The fire occurred in the night of February 2, or early in the morning of February 3, 1904. Notice was given the company, and its adjuster appeared in response thereto on the morning of February 8. After the most common preliminary talk about the fire and the loss, and .a disclosure that the books were destroyed, the adjuster refused to enter into a general investigation looking to an adjustment until the insured would sign a non-waiver agreement. Knerr, who was acting for his wife, hesitated to sign such an agreement until he had consulted a lawyer; and after having consulted his lawyer and his wife, the plaintiff, he returned and both parties signed the following agreement:
“NON-WAIVER AGREEMENT.
“It is hereby mutually understood and agreed by and between E. I. Knerr, of the first part, and the Shawnee Fire-insurance Company, of Topeka, Kan., and other companies signing this agreement, part— of the second part, that any action taken by said party of the second part in investigating the cause of fire or investigating and ascertaining the amount of loss and damage to the property of the party of the first part caused by fire alleged to have occurred on February 3, 1904, shall not waive or invalidate any of the conditions of the policy of the party of the second part, held by the party of the first part, and shall not waive or invalidate any right whatever of either of the parties to this agreement. %
“The intent of this agreement is to preserve the rights of all parties hereto, and provide for an investigation of the fire and the determination of the amount of the loss or damage without regard to the liability of the part— of the second part.
“Signed in duplicate, this 8th day of February, 1904.”
By the terms of this agreement the insured said to the company: “Your acts while investigating the cause of the fire and the amount of damage or loss sustained shall not be construed into a waiver on your part of the performance by me of any of the conditions of the policy — either those which should have been performed in the past or those which it may become my duty to perform in the future.” The acts of the company while investigating these two questions must be construed with reference to this agreement. Thus construed, there is no evidence of a waivei by the company of conditions which should have been performed by the insured previous to the fire.
It is also contended that the company’s local agent, who insured the property, was perfectly familiar with the store and the stock carried by the insured, and knew when he issued the policy that the insured had no iron safe and did not keep one in the store and could not comply with the condition, and, therefore, that the acceptance of the risk with this knowledge es-topped the company to plead the non-performance of this condition of the policy. The clause referred to required the insured to keep the books in a fire-proof safe in the building at night and at all times when the store was not open for business, • or in some secure place not exposed to a fire that would destroy the house where such business was conducted. Conceding that the agent issuing the policy was familiar with the insured store building and stock, and knew that the insured did not keep an iron safe, and that he issued the policy knowing the existence of these conditions, that could not be construed into a waiver of the obligation of the insured to keep the books at night, and when the store was not open for business, in some secure place not exposed to a fire that would destroy the building in which the insured property was kept.
(83 Pac. 613.)
From ány view that may be taken, we are unable to sustain the judgment of the court below. It is therefore reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Per Curiam:
The petition alleged that, in the preliminary conversation which led up to the making of a written contract of lease of lands for oil-and-gas purposes, the agent of the lessee, for the purpose of inducing the lessors to make the contract, represented that the company (lessee) had a drill loaded on the cars at Chanute for the purpose of bringing the drill to the field where leases were then being taken by the company, and that the drill would be put in operation in the field inside of thirty days from the 31st day of October, 1902. The petition further alleged that said statements and promises were false, but were believed and relied upon by the lessors as true, and that, relying thereon, they did, on the same day, enter into a contract in writing which, among other things, provided as follows:
“In case no oil- or gas-well be drilled on said premises within six months of date hereof, all rights and obligations secured under this contract shall cease, upon notice in writing by the parties of the first part, unless the second party shall elect thereafter from year to year to continue this lease in force as to all or any portion of said premises by paying at the expiration of each year an annual rental of fifty cents per acre for all said premises, or such portion as it may designate until well is drilled upon said premises.”
This suit was brought to set aside the lease on account of fraud, and this was the only fraud alleged or proved. There is no claim of mistake or misunderstanding as to the terms of the written contract, or that the same does not fairly express the final agreement of the parties.
The failure to do a thing at the time it is promised to be done, which time is subsequent to the promise, does not relate back and make the promise fraudulent, especially when the parties, after the verbal promise, enter into a written contract which provides another and later time for the performance of the thing promised. Nor is it a material misrepresentation, even if false, that the company had a drill loaded on the cars at Chanute for the purpose of bringing the drill to the field when the written contract, into which the oral negotiations merged, allowed the company six months at least to do such drilling.
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Per Curiam:
This is an original proceeding in discipline. The respondent, Albert O. Kiesow, has been a member of the bar practicing in Wyandotte County since 1949. This proceeding arose from two complaints received by the State Board of Law Examiners concerning the professional conduct of the respondent. After investigation and hearing the state board filed its report which contained its findings and recommendation of indefinite suspension. Respondent filed exceptions to the report of the state board and the matter is now before this court for determination.-
The first two charges of alleged misconduct involve solicitation of business and the misuse of a client’s funds, arising from an attorney-client relationship between Mr. Kiesow and Mr. and Mrs. Carl Sheppard during 1970. The factual circumstances are not really in dispute and are basically as follows: On December 10, 1969, Donald Sheppard, the 22-year-old son of Mr. and Mrs. Carl A. Sheppard was fatally injured by electricity. In August of 1970 the respondent, Kiesow, was in La Cygne, Kansas, on real estate business. The client, who was a neighbor of Mr. and Mrs. Sheppard, discussed with respondent the accidental death of Donald Sheppard. The client suggested that respondent should go to see Mr. Sheppard about it. The respondent approached the Sheppards and suggested to them the possibility of a lawsuit against the Kansas City Power and Light Company, whose electrical lines caused the electrocution death of their son. Mr. and Mrs. Sheppard had given no previous consideration to a possible claim. They did not know the respondent and did not request that he call upon them. Respondent advised the Sheppards that there was some possible liability on the part of the power company and they agreed to employ him to proceed with the claim against the power company on a 50% contingent fee contract. These circumstances gave rise to the charge of solicitation of business.
The second charge involves misuse of a client’s funds in the course of respondent’s representation of the Sheppards in processing their claim against the power company. The respondent negotiated a settlement of the Sheppards’ claim with the Kansas City Power and Light Company for the sum of $3,000. The settlement draft was drawn to the order of both respondent and the Sheppards. Respondent obtained the endorsement of the Sheppards on the settlement draft with the understanding that respondent would send his personal check for their portion of the settlement which would be $1500. Respondent testified that he told the Sheppards that it would take about 10 days for the draft to clear. He deposited the draft in his account at Rosedale State Bank which respondent characterized as a “clients’ account.” The settlement draft was paid by the bank on August 18, 1970. On the same date respondent transmitted to the Sheppards by letter his check in the amount of $1500 drawn on the Rosedale State Bank. Sheppard presented respondent’s check for payment to the Rosedale State Bank but it was not paid because of insufficient funds. The Sheppards made several unsuccessful attempts to reach the respondent. Some time after Labor Day respondent advised the Sheppards, “There’s not a thing I can do now. I’ve got some money coming in in a few days.” Finally on October 8, 1970, a complaint was filed with the Kansas Bar Association by Mr. and Mrs. Sheppard. On November 3, 1970, after answering the complaint the respondent sent the Sheppards a certified check for the amount due. It is undisputed that respondent used the Rosedale State Bank account for his own use under the assumption that “there should have been some profit in the account.” While respondent maintained that he deposited the full $3,000 in the account, the bank record clearly indicated that only $2300 was deposited. The evidence established that respondent had no means of identifying the various accounts on deposit, as he maintained no service account ledger that would separate client’s funds and office funds. His personal funds and the client’s funds were not separated.
On the basis of this evidence the State Board of Law Examiners found that the first two charges involving solicitation and misuse of a client’s funds had been proved. More specifically as to the solicitation charge the state board found that the client did not seek the services of the respondent attorney and that the best that can be said is that respondent called at the suggestion of a neighbor who had no motive for personal gain. We agree with the state board that the situation is governed by Supreme Court Rule No. 501 DR 2-104 (A), 205 Kan. lxxxi, which reads as follows:
“A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, . .
It is clear that respondent was guilty of professional misconduct in violation of this provision. This court has long recognized that improper solicitation by an attorney warrants disciplinary action. (In re Gorsuch, 113 Kan. 380, 214 Pac. 794.)
As to the charge of misuse of a client’s funds the state board found that respondent had wrongfully used the funds of his clients for his own purposes when he knew or should have known that he was doing so and further that he commingled the clients’ funds with his personal or business funds.
This court in the case of State v. Barrett, 207 Kan. 178, 483 P. 2d 1106, defines commingling as follows:
“Commingling is committed when a client’s money is intermingled with that of his attorney and its separate identity lost so that it may be used for the attorney’s personal or business expenses or subjected to claims of his creditors.” (p. 182.)
The respondent admitted to procrastination but denied any intent to defraud on his part. The state board found that there was no intent to defraud on the part of respondent. The state board specifically concluded that the respondent should not escape responsibility for his trust account obligation by his failure to keep records or data as required to enable him to discharge his duties to his clients. The practice of commingling clients’ funds with the personal and business funds of the attorney so that the separate identity of the clients’ money is lost is a violation of the canons of professional ethics. (Supreme Court Rule No. 501 DR 9-102, 205 Kan. xcii.) Likewise, the failure of respondent promptly to pay to his clients the settlement funds to which they were entitled is also a violation of the same rule. It should also be noted that the respondent did not pay to the Sheppards their share of the settlement until after a complaint had been filed with the Kansas Ear Association by the Sheppards. The undisputed evidence makes it clear that respondent was guilty of professional misconduct in the misuse of his clients’ funds.
The third complaint concerns a check in the amount of $2,603.10 paid as a condemnation award in a highway condemnation case. Briefly stated, the State Highway Commission condemned a portion of real estate belonging to the estate of one Robert T. Smith and Corene Smith, a widow. Robert T. Smith died on July 11, 1963. The $2,603.10 was paid into the office of the clerk of the district court of Wyandotte County on February 3, 1965, which money was not withdrawn. In September 1966, the respondent Albert O. Kiesow bought the remaining Smith real estate at a tax foreclosure sale. The sale was confirmed and a sheriff’s deed was issued to Mr. Kiesow. Somehow Kiesow discovered that the Smiths had failed to draw down the condemnation award and that the' $2,603.10 remained in the hands of the clerk of the court. It is clear from the evidence that the land which respondent purchased at the tax sale did not include the land previously condemned. Respondent, in order to obtain the award money, solicited the approval of Judge William J. Burns of the district court and the approval of J. W. Mahoney, attorney for the State Highway Commission, to obtain an order of distribution. The order allowed respondent to draw down the $2,603.10 for his own use. No formal hearing was had on respondent’s motion to withdraw the money nor did respondent attempt to give notice to the heirs of Robert T. Smith or to Corene Smith. The whole matter was handled by Judge Bums on the understanding that he was signing an agreed journal entry and that all interested parties had consented thereto. It further does not appear that respondent fully explained to Judge Bums or J. W. Mahoney how respondent came to be the owner of the land. The action of the respondent in obtaining the condemnation money was discovered by the United States Attorney when he attempted to have the balance due on a first mortgage held by the United States paid out of the monies which had been deposited with the clerk. Subsequently, Corene Smith and the United States filed motions to require Mr. Kiesow to reimburse the clerk of the district court for the money he had wrongfully withdrawn. The motions were sustained and respondent was ordered to reimburse the clerk; thereafter respondent restored the funds to the clerk with interest. The respondent’s explanation as to why he was entitled to the money was that he had a sheriff’s deed to the remaining land and he concluded that no one else had any right to the money. The State Board of Law Examiners found that the respondent, knowingly or with ignorance inexcusable in a competent lawyer, sought personal gain at the expense of litigants not actively represented by counsel at a hearing affecting their substantial rights. It further found that the respondent did not make a full disclosure to the court and counsel in obtaining entry of the order of disbursement and took advantage of their confidence in him and their inattention to the true nature of the order sought. The state board further found that respondent, with dishonest intent, sought to and did exploit his status as a lawyer to obtain funds for his personal use to which he had no right. The state board concluded that respondent did not conduct himself with the honesty, candor and fairness commanded by Canon 11, Canons of Professional Ethics, as then in force and by Supreme Court Rule Nos. 501 DR 7-102 (A), DR 7-106 and DR 1-102 (A) (4) and (6), 205 Kan. Ixxxvii-lxxxviii-Ixxvii.
It is clear to this court and we find that respondent was guilty of professional misconduct in the manner in which he obtained withdrawal of the highway condemnation funds heretofore discussed.
The hearing panel recommended to the State Board of Law Examiners that the respondent be disciplined by indefinite suspension. The same recommendation was made by the state board to this court. We accept that recommendation.
On the basis of the record before us we have concluded that respondent has been guilty of a disregard of his duties of honesty, fidelity, candor and fairness which he owed to his clients and to the courts. From the record before us we note that respondent has suffered extremely poor health and consequent financial reverses during the past few years. This was probably an important contributing factor to the unfortunate circumstances involved in this present proceeding. We find at this time that respondent is an unfit person to manage the legal business of others which justifies the imposition of indefinite suspension.
It is therefore the judgment and order of this court that the respondent Albert O. Kiesow be indefinitely suspended from the practice of law from the date of this opinion and that he pay the costs of this proceeding.
IT IS SO ORDERED.
Owsley, J., not participating. | [
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The opinion of the court was delivered by
Kaul, J.:
This case originated in the juvenile court of Shawnee County in proceedings in which (three children) Nicholas Johnson, Robert Johnson, Jr., and Rhonda Johnson were found to be dependent and neglected children. The mother of the three children, Joann Schafer Johnson, was killed in an automobile-train accident on September 22, 1971. Their father, Robert Johnson, Sr., who had previously been divorced by Joann and subsequently abandoned the children, had his parental rights severed in the juvenile court proceedings. When the proceedings were initiated the approximate ages of the three children were Nicholas five; Robert, Jr., three and one-half, and Rhonda two.'
The orders of the juvenile court decreeing the children to be dependent and neglected were entered on October 29, 1971. On December 8, 1971, Nicholas and Robert were committed to the care of Carol Mesigh, Probation Counselor for the juvenile court for adoption. Rhonda was committed to the care of the Kansas State Department of Social Welfare. Louise Schafer, the natural grandmother of the three children appealed to the district court which affirmed the orders of disposition of the juvenile court. Mrs. Schafer then perfected this appeal.
The appellant’s arguments on appeal center around her claim that the decision on disposition of the district court was against the best interests of the children in the light of the existing bond of love and affection between the children and herself as their grandmother.
When an appeal such as that in this case has been perfected to the district court the pertinent statute K. S. A. 1971 Supp. 38-834 (c) governs the proceedings. It provides:
“. . . The case shall be heard and disposed of in accordance with the provisions of this act and in the exercise of all the powers and discretion herein given to the juvenile court.”
In other words, the district court has the same jurisdiction as the juvenile court and must treat the case de novo subject to all the limitations as to jurisdiction and issues which apply to a juvenile court. (In re Templeton, 202 Kan. 89, 447 P. 2d 158.)
In order to acquire the jurisdiction over the custody of a child the juvenile court must first decide that the child is dependent and neglected. (Murrow v. Powell, 167 Kan. 283, 205 P. 2d 1193.) In this case the juvenile court did find the three children to be dependent and neglected and this finding is undisputed. The only matter appealed from to the district court and then to this court is the question of disposition of the children.
When a juvenile court makes an order severing the parental rights of the only surviving parent, as was done in this case, the court may, pursuant to the provisions of K. S. A. 1971 Supp. 38-824 (c), commit the child to one of the following:
“(1) To the care of some reputable citizen of good moral character;
“(2) to the care of some suitable public or private institution used as a home or place of detention or correction;
“(3) to the care of some association willing to receive it, embracing in its objects the purpose of caring for or obtaining homes for dependent and neglected children;
“(4) to the state department of social welfare.”
The commitment orders of the juvenile court, which we have recited, were in compliance with the provisions of the statute.
When this appeal was perfected to the district court Thomas A. Valentine was appointed guardian ad litem for the three minor children and has appeared in that capacity in all subsequent proceedings in the district court and in the appeal to this court. The guardian ad litem takes the position that the appellant’s appeal should be overruled on all points raised and that the disposition be sustained in its present form. The state joins with the guardian ad litem in the position taken by him.
The appellant first argues that a grandparent, when next of kin, is a natural guardian under common law and thus entitled to a preference. The common law rule to the effect that guardianship vested in father, mother, and next of kin in that order was first modified by Article 15, Section 6 of the Constitution of the State of Kansas, wherein women were given equal rights with respect to the possession of children. The common law rule was further modified by K. S. A. 59-3014 and its successor K. S. A. 1971 Supp. 59-3014 which provides with respect to priority of a guardian that priority shall be given in the following order:
“(1) To the nominee of a minor over the age of fourteen (14) years who is not himself an incapacitated person.
“(2) To the nominee of a natural guardian. . .
Neither condition prevails in this case. The term “natural guardian” is defined in K. S. A. 1971 Supp. 59-3002 ( 3) as follows:
“(3) The term ‘natural guardian’ shall mean both the father and mother of a legitimate minor or the mother of an illegitimate minor, provided that both such parents or parent shall not have been found to be an incapacitated person or had their parental rights severed by a court of competent jurisdiction. If either parent of a legitimate minor dies, or has been found to be an incapacitated person or has had his parental rights severed by a court of competent jurisdiction the other shall be the ‘natural guardian.’ ”
Even though grandparents do not fall within the statutory definition of natural guardian, appellant claims that as next of kin she is entitled to preference under the common law rule which should be applied in the instant case. Appellant cites K. S. A. 77-109 and the case of Paronto v. Armstrong, 161 Kan. 720, 171 P. 2d 299, in support of her position. While 77-109 provides that common law, as modified, “shall remain in force in aid of the General Statutes of this state;” it further provides:
“. . . but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object.”
The purpose which underlies our Juvenile Code and the beneficent objectives which it seeks to attain are expressed in K. S. A. 38-801 which reads:
“This act shall be liberally construed, to the end that each child coming within its provisions shall receive such care, custody, guidance, control and discipline, preferably in his own home, as will best serve the child’s welfare and the best interests of the state. In no case shall any order, judgment or decree of the juvenile court, in any proceedings under the provisions of this act, be deemed or held to import a criminal act on the part of any child; but all proceedings, orders, judgments and decrees shall be deemed to have been taken and done «in the exercise of the parental power of the state. This section shall not apply to proceedings under section 30 [38-830] of this act.”
The mandate of 38-801 directing liberal construction of the code .so as to “best serve the child’s welfare and the best interests of the state,” has received consistent adherence in the decisions of this court. (Lennon v. State, 193 Kan. 685, 396 P. 2d 290; and In re Armentrout, 207 Kan. 366, 485 P. 2d 183, and cases cited therein.)
The point raised by appellant was settled many years ago in the case of In re Bullen, 28 Kan. (2nd Ed.) * 781, wherein Mr. Justice Brewer speaking for the court said:
“. . . Clearly the grandmother has no right to the child; there is on her part no legal obligation to support it, and therefore no legal right to its custody. . . .” (p. *785.)
The Paronto case, cited by appellant, was an original proceeding in habeas corpus wherein grandparents were awarded custody of a three-year-old child whose parents were deceased. The decision does not rest on any legal right of the grandparents to custody, but was decided on the issue of what was the best interests of the child. The holding in Paronto is set out as follows:
“Considering the facts disclosed by the record pertaining to the best interest of the child, it is held that it is to the best interest of the child that he be reared by his maternal grandmother.” (Syl. f 5.)
In the Paronto case it was pointed out that the maternal grandmother — as next of kin — had the right to maintain the action. The love of the grandmother, as a factor to be recognized in determining the best welfare of the child, was acknowledged by the court in the opinion wherein it was said of the grandmother—
“. . . She is the one person who can give this child the love, care and attention nearest to that which could be given by a mother. We are confident she will do so.” (p.732.)
In the instant case the trial court’s memorandum decision reveals that compassionate consideration was given to the bond of affection that exists between appellant and the three children involved. The court’s memorandum reads:
“Perhaps no decision can be submitted to a Court for determination which is more difficult than the one before the Court in this instance. However, the law of Kansas is quite clear that the primary factor for the Judge to consider is what will be to the best interests of the minor children.
“The Court has very carefully considered the assets, and there are many, of the maternal grandmother who with limited education and without the help of a dutiful husband has raised two children to adulthood, losing one tragically, and who still has two teenage children to rear. She has, without adequate financial assistance other than that rendered by the welfare done a commendable job. It is only natural, knowing the bond of affection that exists between her and the small children involved herein, that she would be motivated to have their custody. On the other hand, in light of the fact that she still has two teenage children of her own to rear and being mindful of the condition of her general health, the Court does not feel that it would be to her best interest as well as the best interest of these children for her to assume the additional responsibility. This, the court is of the opinion, would strain her situation to the breaking point, which in time would be disastrous for all concerned.”
The trial court reviewed the evidence and made extensive findings of fact which support its conclusions. It is apparent from the record that the trial court carefully weighed the facts and circumstances surrounding the placement of the children. Pertinent facts concerning Mrs. Schafer’s situation were recited by the trial court as follows:
“The maternal grandmother, Mrs. Louise Shafer, is forty-one years of age and has been receiving assistance under an ADC Grant from the County Welfare Department since August 31, 1965. She previously had been married to John Shafer, which marriage was terminated by divorce in 1960. Since that termination John Shafer has in no way supported the children. There were four children born of the marriage between Louise Shafer and John Shafer, the same being John Shafer, Jr., presently of the United States Air Force; Joann Shafer Johnson, born in 1951 who is the mother of the minor children involved herein and who was killed in a train-car collision on September 22, 1971; William Shafer, born in 1956 who is presently fifteen years old and is in the 7th grade at Shawnee Heights Junior High School; Karen Shafer, who was bom in 1958 who is attending Shawnee Heights Elementary School. Mrs. Shafer is presently living at 3831 SE Tomahawk Trail with her two children, William and Karen. The home of Mrs. Shafer is adequate. Mrs. Shafer has a very limited education as well as income, the sole source being her welfare payments and assistance from her son in the service. The two children living at home have both been in special education classes and at the present time William is taking a special education class. Mrs. Shafer and her children are not members of any church or Sunday school. Mrs. Shafer has been unable to work due to health problems, the same being a skin condition and extreme nervousness. Mrs. Shafer states that if awarded custody of her grandchildren she would have an additional room built on her house and that this would be done with the assistance of her son who is in the Air Force at this time. For further detail in connection with the maternal grandmother the Court incorporates herein the report of tire Shawnee County Welfare Department of October 26, 1971 by Mrs. Kay Corn, Social Worker.
“The Court further incorporates herein by this reference without specifically setting forth same in detail the consultation report of Dr. R. O. Settle, M. D., of the Shawnee County District Court Clinic made on November 16, 1971, wherein he made assessment of Mrs. Shafer setting forth both the positive and negative aspects with regard to Mrs. Shafer having custody herein.”
Appellant admits that it is the long established law in this state that the paramount consideration of the court is the welfare and best interests of the child. Jackson v. Jackson, 181 Kan. 1, 309 P. 2d 705, and cases cited therein.)
This court has repeatedly taken the position that the trial court is the best judge of the best interests of the child and, therefore, in the absence of abuse of judicial discretion its judgment will not be disturbed on appeal. (Jackson v. Jackson, supra; Goetz v. Goetz, 180 Kan. 569, 306 P. 2d 167; and Travis v. Travis, 163 Kan. 54, 180 P. 2d 310.)
Appellant has a right to have considered her bond of love with her grandchildren; this, however, is only one of the factors to be considered in determining the disposition of the children in their best interests. The trial court considered this bond together with the other evidence of appellant’s health, the responsibility of her own children, and other circumstances surrounding her welfare and home conditions. We find no abuse of discretion in the orders of disposition.
Appellant makes a further point on appeal that as a natural guardian she has an interest in continuing contact, i. e., visitation rights with her grandchildren. In this regard the instant case presents a situation quite different from a simple custody suit. The disposition of the children here is for adoption purposes and has the effect of prohibiting appellant from exercising visitation rights as the children, when adopted, will have new parents and new grandparents. The effect of adoption is set forth in K. S. A. 1971 Supp. 59-2103 in pertinent part as follows:
“. . . When adopted said child shall be entitled to the same rights of person and property as a natural child of the person thus adopting the child. The person so adopting such child shall be entitled to exercise all the rights of a natural parent and be subject to all the liabilities of that relation. Upon such adoption all tire rights of natural parents to the adopted child, including their right to inherit from such child, shall cease, except the rights of a natural parent who is the spouse of the adopting parent.”
Under the statute the adoptive parents are entitled to exercise all of the rights of a natural parent, thus whether a natural grandparent can continue contact with an adopted child is a matter within the discretion of the adoptive parents. This principle may seem harsh in view of the existing love of a grandparent, but the best interests of the child must be the paramount consideration.
Finally, appellant complains because an attorney for prospective adoptive parents was permitted to remain as an observer in the courtroom during the proceedings. The record fails to reveal an objection was lodged on this point. Thus, the question is not before us under the familiar rule that it must be shown that a question raised on appeal was presented to and determined by the trial court in order that it receive consideration on appellate review. (Pacific Indemnity Co. v. Berge, 205 Kan. 755, 473 P. 2d 48; and Schneider v. Washington National Ins. Co., 200 Kan. 380, 437 P. 2d 798.)
K. S. A. 38-822 provides that the juvenile court may exclude all noninterested parties from the courtroom. We have held the authority to exclude under the statute is discretionary. (Lennon v. State, supra.) In any event, as we have noted, no motion to exclude was made nor was any objection lodged to the presence of the attorney referred to.
The instant case was carefully and thoroughly tried below. It is apparent that all available evidence which might bear upon the issue was presented by industrious counsel. We join the trial court in expressing compassion for this unfortunate grandmother, but sympathy cannot be allowed to overshadow the best interests of the three children which is the paramount issue to be determined. There is substantial competent evidence to support the findings and judgment of the trial court and the judgment must be affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Plaintiff, Paul F. Lee, appeals from an order of the district court denying his motion to set aside a judgment entered in favor of the defendants, Eugene D. Brown and Eugene D. Brown Realty Company, a corporation. The motion was filed under K.S.A. 60-260 (b).
An appeal from an order denying a motion for relief from a judgment under K. S. A. 60-260 (b) presents for appellate review only the order of denial and not the judgment. (Neagle v. Brooks, 203 Kan. 323, Syl. ¶ 1, 454 P. 2d 544.) Therefore it will suffice to say that plaintiff filed suit for damages claimed because of the alleged publication of a libelous letter. The defendants answered and after completing their discovery procedures they filed a motion for summary judgment. Eventually the motion was sustained.
The plaintiff was represented in the action by three different attorneys. The first attorney, Mr. Yohe, filed the case and then withdrew as counsel during the time of defendants’ discovery procedures. The second attorney, Mr. Hensel, appeared in opposition to defendants’ first motion for summary judgment. At this time plaintiff had yet to undertake discovery procedures and the court overruled defendants’ motion with permission to renew the motion at the conclusion of plaintiff’s discovery. The record discloses at that time the court inquired as to how soon discovery could be completed by plaintiff. No record of the time requested by plaintiff appears in the record. This occurred December 12, 1969. Ten months later no discovery had been undertaken by plaintiff and on October 29, 1970, the motion for summary judgment was renewed by defendants. Notice of hearing on the renewed motion was mailed to plaintiff’s attorney, Mr. Hensel, and the hearing was set for January 25, 1971. At this hearing Mr. Hensel appeared and made an oral request to withdraw as attorney for plaintiff. He was directed to file a formal motion for leave to withdraw and to advise the plaintiff personally that if discovery -was not completed by February 22, 1971, counsel for defendants should prepare a journal entry sustaining defendants’ motion for summary judgment. Several days thereafter Mr. Hensel obtained and filed his formal journal entry of withdrawal. We can assume that plaintiff was advised as directed since plaintiff’s present counsel inquired of the bailiff on February 22, 1971, concerning the status of the case. However, so far as the court and defendants’ counsel were concerned no attorney had appeared for plaintiff in the case and a journal entry awarding summary judgment to defendants was mailed to the judge. It was signed and then filed on February 26, 1971.
Thereafter on March 9, 1971, plaintiff’s present attorneys entered their appearance in the case. A motion to set aside the judgment, from which this appeal stems, was filed March 12, 1971. After a hearing the motion was overruled and plaintiff has appealed from that order.
The plaintiff-appellant’s arguments on appeal are three-fold. He contends the defendants failed to comply with K. S. A. 60-256 (c) which provides that a motion for summary judgment shall be served at least ten days before the time fixed for hearing. His argument overlooks the notice of hearing originally mailed to plaintiff, pro se, on November 17, 1969, and the notice on the renewed motion served on Mr. Hensel as attorney of record for Plaintiff on December 17, 1970.
Secondly plaintiff contends that the judgment entered was void in that the journal entry was filed February 26, 1971, and it erroneously recited that the matter came on for hearing on February 22, 1971. He contends that the journal entry erroneously recorded an appearance for defendants’ attorney, who was in fact not present in court on that date; and that it failed to record the fact that plaintiff’s attorney, Mr. Gold, did talk to the bailiff at the courthouse on that date. He asserts that Mr. Gold was erroneously advised by the bailiff that the case had been continued and was not to be heard that day.
The third argument of appellant is that the court erred in entering summary judgment because of plaintiff’s failure to complete discovery.
The basic rule governing our decision in this case has previously been stated, i. e., a ruling on a motion to vacate and set aside a judgment rests largely within the trial court’s discretion. In Lackey v. Medora Township, 194 Kan. 794, 401 P. 2d 911, after reviewing some of the federal cases on rule 60, from which K. S. A. 60-260 was lifted, this court stated that relief on such a motion is not a matter of right. The motion is addressed to the discretion of the trial court. In the absence of a showing of abuse of discretion this court on appellate review will not reverse the trial court’s order. The rule applies to default judgments. (See Wilson v. Miller, 198 Kan. 321, 424 P. 2d 271.) The burden of establishing sufficient grounds for relief by clear and convincing evidence rests upon the movant. (See Cool v. Cool, 203 Kan. 749, 457 P. 2d 60.) In Neagle v. Brooks, supra, Syl ¶ 2, it was said:
“Where a court has jurisdiction of the parties and the subject matter of the action, a judgment entered by it is not void by reason of failure of the judge to cause written notice of the general nature of the judgment to be mailed immediately to a party who was not present when entry of the judgment was directed (following rule No. 115 of this court).”
The extent of the discretionary power lodged in a trial court under the provisions of K. S.A. 60-206 (c) and 60-260 (b) (6) is illustrated by our holding in Wichita City Teachers Credit Union v. Rider, 203 Kan. 552, 456 P. 2d 42. There a motion was filed to set aside a money judgment, evidence was presented on the motion and thereafter plaintiff was given a full week to submit any additional evidence. It neglected to do so. The judgment was then set aside and judgment was entered in favor of defendant. On appeal this court affirmed on the basis of the broad discretionary power lodged in the trial court by the statute.
As to plaintiff’s first contention it is without substantial merit. Proper notice of hearing was given. Plaintiff’s attorney Hensel appeared for argument on the original motion and was present later when the renewed motion was presented. The ruling of the court was then reserved until February 22, 1971, to permit plaintiff the advantages of discovery procedures. Plaintiff failed to undertake discovery. The answer in the case had been filed and the issues joined on May 26, 1969. It was almost two years later on February 26, 1971, that the court signed and filed the journal entry of judgment. Plaintiff had made no attempt in the meantime to comply with the court’s oral direction to complete discovery procedures. No reasons for the various changes in plaintiff’s attorneys appear in the record. We cannot say the trial court abused its discretion in view of plaintiffs delay in processing his case.
Plaintiffs second contention, the judgment entered is void because of errors in the dates and appearances recited in the journal entry, is patently without merit. As pointed out in Neagle v. Brooks, supra, the court had jurisdiction of the parties and the subject matter of the action. If there were erroneous recitals in the journal entry they were of a nature contemplated in K. S. A. 60-260 (a). Such clerical errors in the journal entry do not render a judgment void. They may be corrected by the court at any time on its own initiative. Apparently the court found no error in the journal entry. K. S. A. 60-260 (a) will not support a nunc pro tunc order to wipe out a prior judgment affecting the rights of a party, and mere clerical errors in the journal entry as to dates and appearances will not justify vacating the judgment. (Matthies v. Railroad Retirement Board, 341 F. 2d 243, 247.)
In addition, the date a decision is reached by the judge may or may not be the date of the hearing, and the date the decision is journalized and filed will generally postdate the actual decision. This case was finally submitted on January 25, 1971. The judge’s decision was reserved until February 22, 1971. The decision was journalized and filed February 26, 1971. We see no material errors in either the recitation of dates or the recording of appearances of the attorneys. At the time the final decision was reached by the judge the plaintiff’s second attorney had withdrawn and the third attorney had not entered an appearance.
The third contention is that the court erred in granting summary judgment because of plaintiff’s failure to complete discovery. As we read the record this was not the basis upon which summary judgment was entered.
The letter which forms the alleged basis for plaintiffs publication of libelous matter was written by defendant Brown shortly after plaintiff’s employment with the defendant realty company had been terminated. The letter was written to plaintiff and a copy sent to the executive secretary of the Johnson County Board of Realtors, Inc. The letter was sent in response to a previous letter from plaintiff to the defendant Brown, a copy of which had previously been sent to the board of realtors.
In the journal entry of judgment, after reciting the undisputed facts disclosed by defendants’ discovery proceedings, the trial court concluded as follows:
“The Court therefore finds as a matter of law that defendants are entitled to summary judgment as prayed for on the grounds that the plaintiff started the communication chain and the defendants’ response to the plaintiff was only in answer to the plaintiff’s initial correspondence and that defendants’ response was solicited or invited by the plaintiff, and as such, enjoyed a qualified privilege. The Court further finds this privilege was not exceeded by the defendants and the letter complained of is not actionable in law. The Court specifically finds that the matter at hand falls under the following cases and authority: Richardson v. Gunby, 88 Kan. 47, 127 P. 533; Mims v. Metropolitan Life, 200 F. 2d, 800, certiorari denied 245 U. S. 940, 73 S. C. 831; Mick v. American Dental Association, 49 N. J. 262, 139 A2d 570, Restatement of Torts, Section 583, 33 Am. Jur., Libel and Slander, Section 93.”
This court recently explored this area of the law in Munsell v. Ideal Food Stores, 208 Kan. 909, 494 P. 2d 1063. However, as initially pointed out, this appeal is limited to a review of the order denying the motion to set aside the judgment and not the judgment itself. (Neagle v. Brooks, supra.)
One last matter deserves our attention. The appellant argued on the motion to vacate the judgment that the trial court abused its discretion in failing to require a record of the proceedings when the attorney for plaintiff, Mr. Hensel, was instructed to advise his client that summary judgment for defendants would be entered if discovery proceedings were not complete by February 22, 1971. The trial court in response to this argument called counsel’s attention to the published Rule 5A of the Tenth Judicial District which provides that the parties in all civil actions shall complete discovery procedures within four months after all answers have been filed or the time for answer has expired, unless for good cause shown the court has extended the time. In conclusion the court stated:
“Now, the Court certainly did not, in this case, extend the time for discovery. Counsel said that he would complete it forthwith, and it was not done, and the plaintiff, in this case, is certainly in no position to complain. I feel the Court has been more than lenient with the plaintiff, and the plaintiff— if anyone has been prejudiced, it has been the defendants.”
After reading this record we are inclined to agree with the trial court’s comments.
There has been no showing that the trial court was guilty of an abuse of discretion in refusing to set aside the judgment. The order denying the motion is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is a will contest. The district court after an extensive evidentiary hearing admitted to probate the last will and testament of Maude M. Perkins. The appellant, a nephew of the testatrix, attacks the will on two grounds:
(1) The will was not executed in compliance with the requirements of K. S. A. 59-606.
(2) The testatrix lacked the mental capacity to execute a will at the time the will was executed.
There is no claim made of fraud or undue influence or that the document was not in fact signed by the testatrix and by the two subscribing witnesses, Anna M. Pool and Delores Schlodder. The trial court in its memorandum decision made extensive findings of fact a summary of which is as follows: The testatrix, Maude M. Perkins, died May 14, 1970, at the age of 87 years. She had never married. She left surviving her as her sole heirs, her sister, Edna Palmer, and her nephew, Edwin D. Morrison, who was sometimes referred to as Dale Morrison. Miss Perkins had lived on the family farm in Jackson County, Kansas, with her brother Ray R. Perkins, until his death in March 1962. Prior to 1962 a deed was executed wherein this farm, a quarter section, was conveyed to Ray Perkins, Maude Perkins, and Edwin D. Morrison as joint tenants. On the death of Maude Perkins the title to this land went to Edwin D. Morrison as the surviving j'oint tenant. After the death of her brother, Ray Perkins, Maude stayed on the farm for a short period and early in 1963 moved to the city of Holton. After living a short period with her sister she moved with her sister to a rest home at Smith Center, Kansas, where she died. In the fall of 1962 Mr. Edward S. Dunn, an attorney at Holton, Kansas, prepared a will for Miss Perkins. This will was offered for probate also. The probate court found this will was properly executed according to law and that at the time of its execution Maude Perkins had testamentary capacity. It further found that the 1965 will, which is involved here, by its terms revoked the 1962 will. In the 1962 will, Maude Perkins, had given $1,000 to her sister, Edna Palmer, with some language about reducing this amount if her estate was diminished in Maude’s lifetime. The residue of the estate was left to the nephew, Edwin D. Morrison. This 1962 will was never physically destroyed.
On February 1, 1963, Maude Perkins, filed a voluntary petition for the appointment of a guardian for her person and estate. The reason for her action was that she felt she needed help in handling her business and financial affairs. Mr. Marlin A. White, an attorney át Holton,'had known Miss Perkins causally and had visited with her on the street. Miss Perkins spent a lot of time “uptown” on the square in Holton. In August of 1964, she consulted Mr. White con ceming a change in her guardian. There was some disagreement about the guardianship. White filed a petition to terminate the guardianship. The trouble was apparently worked out amicably with the result that a different guardian was appointed and the petition to terminate the guardianship was not pressed.
About a week or 10 days prior to June 1, 1965, Maude Perkins consulted Mr. White concerning a will. At that time Mr. White knew of the voluntary guardianship and spent more than the usual time in discussing the matter of the will with her. Upon inquiry by Mr. White, Miss Perkins told him that she had about $20,000 in two financial institutions; that there was a farm in which she had an interest which would go to Dale Morrison on her death and that she had no right to make a will concerning the farm; that her family consisted of her sister, Mrs. Palmer, Mrs. Palmer’s two sons, and Dale Morrison, the son of her predeceased sister. Miss Perkins told Mr. White she had made a prior will which had been prepared by Mr. Dunn. She stated that in the prior will she had given Mrs. Palmer $1,000 and the balance to Dale Morrison. She discussed the fact that she did not want to give her sister the full $1,000 if her estate was diminished. She stated she now wanted the Christian Church of Holton to have the balance of her estate to be used for education of ministers but that she did not want them to be able to spend it all at once. She wanted a memorial in her name. Mr. White suggested that Mrs. Palmer be given 5% of her estate and that a trust arrangement be set up for the bequest to the church. These suggestions were agreeable to Miss Perkins.
A day or two before June 1, 1965, Miss Perkins saw Mr. White on the street of Holton and asked him humorously, “Are you ever going to get that will made?” Mr. White told her to come to the office June 1st and that it would be ready. The will was executed on June 1, 1965. On the morning of that day Miss Perkins called Mr. White on the telephone and asked if she could bring a friend to be a witness to the will which Mr. White said would be all right. Miss Perkins called Anna M. Pool, who had known Miss Perkins since 1963, and asked to meet her at the courthouse in Holton, not giving a reason. These two met at the courthouse and there Miss Perkins told Mrs. Pool that she had a will made out and she wanted Mrs. Pool to sign it. They proceeded to Mr. White’s office. When Miss Perkins and Mrs. Pool arrived at Mr. White’s office he asked Miss Perkins to read the will which she apparently did. He then read it aloud to her. Miss Perkins asked Mr. White to explain “net income,” a phrase used in the will, which was done to her apparent satisfaction. This was done with Mrs. Pool present.
Then Mr. White stepped down the hall and asked Delores Schlodder, who was employed in a doctor’s office in the same building, to come in to sign the will. Mrs. Schlodder had on many previous occasions been asked to witness the signing of wills. Mrs. Schlodder along with Mr. White then entered the office room where Miss Perkins and Mrs. Pool were seated. Mr. White introduced Mrs. Schlodder and told Miss Perkins that Mrs. Schlodder would witness her will. Mrs. Schlodder had known Miss Perkins casually prior to that time. Mr. White in the presence of all three ladies then asked Miss Perkins who her heirs were and if she would like to tell Mrs. Schlodder what she was leaving in her will. Miss Perkins answered these questions. Mrs. Schlodder does not recall the specific questions or details. Miss Perkins talked to Mrs. Pool and mentioned leaving money to the Christian Church. Mrs. Pool stated in substance that it was her money to do with as she wanted. Mrs. Pool does not recall that Miss Perkins said anything other than the comment about the money to the Christian Church. Following this Miss Perkins signed the document; Mrs. Pool signed the document as a witness and then Mrs. Schlodder signed the document as a witness. Mrs. Schlodder actually saw Miss Perkins sign the document. Mrs. Pool did not actually see Miss Perkins sign the document because she was seated across the room with her back to the wall. At the time of trial Mrs. Pool was 81 years of age and had an obvious hearing deficiency. The signature of Miss Perkins was affixed to the document prior to that of any of the witnesses. The witnesses saw each other sign the document; they both knew they were witnessing the will of Maude M. Perkins. Maude M. Perkins knew she had signed her will and that Mrs. Schlodder and Mrs. Pool were signing as witnesses to the will. All four parties, Miss Perkins, Mrs. Schlodder, Mrs. Pool and Mr. White, were in the same room during the entire procedure of the execution of the will. They were all within the presence, sight, and hearing of each other. After the execution of the will, Mrs. Schlodder left to return to her work. Miss Perkins then asked Mr. White to keep the will. Mr. White suggested that it could be left with the probate court. Miss Perkins stated that she had left a will with the probate court once and had had trouble getting it out again and wanted Mr. White to keep it. Mr. White retained possession of the will.
There was a great deal of conflicting testimony in regard to the physical and mental condition of Miss Perkins during the year preceding the execution of the will. In 1964, particularly in the fall of the year, and progressing into the spring of 1965 Maude Perkins was becoming more and more forgetful. She at times could not remember the names of friends of long standing; at times she appeared either to ignore such persons or not to recognize them. She mixed up the names of her nephews and their wives. She would go to a doctor’s office and then forget the purpose of her visit or not know where she was. Her clothing and appearance became increasingly disheveled. She was prescribed tranquilizers for her agitation of mind. She repeatedly and frequently went to see her guardian as to her money, inquiring how much she had on hand; she could not remember the amounts so her guardian, a banker, J. B. Patton, wrote them down for her. She feared she would not have enough money to last her. She had cerebral arteriosclerosis. Her doctor Roy Moser, M. D., testified that in his opinion she could not concentrate on a subject for more than a few minutes; he was of the further opinion that on June 1, 1965, as far as going out in the business world, Miss Perkins was incompetent. Her guardian J. B. Patton was of the opinion that Miss Perkins did not comprehend the value of her property, but that she did know her heirs because she spoke repeatedly about Mrs. Palmer and her nephew Dale Morrison. Her former attorney Mr. Edward S. Dunn was of the opinion that Miss Perkins was not mentally competent on June 1,1965. Her nephew Dale, was of this same opinion. Other lay witnesses were of this same opinion. At the conclusion of the evidence the trial court took the case under advisement.
In its memorandum decision the trial court found the facts substantially as set forth above. It also made conclusions of law to the effect that on June 1, 1965, at the time of the execution of the purported will Maude Perkins was mentally competent to make a will and further that the will was executed in accordance with the requirements of K. S. A. 59-606. The document dated June 1, 1965, was admitted to probate as the last will and testament of Maude M. Perkins, deceased. The appellant, Edwin D. Morrison, filed a motion for a new trial which was argued and submitted to the court. The trial court adhered to its original decision and the motion for a new trial was overruled. A timely appeal was taken to this court by Edwin D. Morrison.
The first point which appellant has raised on this appeal is that the will was not properly executed in accordance with K. S. A. 59-606 because the witness, Mrs. Pool, did not see the testatrix sign the will, nor did she hear the testatrix acknowledge the same.
K. S. A. 59-606 provides as follows:
“Execution and attestation. Every will, except an oral will as provided in section 44 [59-608], shall be in writing, and signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge the same.”
Since the enactment of this statute interpretative decisions have developed certain principles to be followed in applying the statute. They are as follows:
(1) The will of the testator should be carried out if reasonably possible and a substantial compliance with statutory requirements is enough. Slight or trifling departures from technical requirements will not operate to defeat a will. (Kitchell v. Bridgeman, 126 Kan. 145, 267 Pac. 26.)
(2) Where a will is offered for probate, the burden of proof in the first instance is upon the proponent to make a prima facie case showing due execution of the will. When such a prima facie showing has been made, the burden shifts to the contestant to overcome that showing by clear, satisfactory and convincing evidence. (In re Estate of Wallace, 158 Kan. 633, 149 P. 2d 595; In re Estate of Wittman, 161 Kan. 398, 168 P. 2d 541; In re Estate of Arney, 174 Kan. 64, 254 P. 2d 314.)
(3) K. S. A. 59-606 does not make it mandatory for a testator to subscribe his signature in the presence of the witnesses or to tell them it is his signature if the will containing the testator s signature is observed by the witnesses and is clearly acknowledged by the testator to be his last will and testament. (Humphrey v. Wallace, 169 Kan. 58, 216 P. 2d 781; Colman v. Lindley, Administrator, 115 Kan. 802, 224 Pac. 912.)
(4) It is not necessary that the witnesses attest and subscribe their names in the presence of each other. (Colman v. Lindley, Administrator, supra.)
(5) The statute does not require the instrument to be read to the witnesses by the testator and does not require the witnesses to actually know it is a will. (In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544.)
(6) The acknowledgment of the testator need not be formal nor in any set form of words. It may be implied and consist of conscious acts or conduct on the part of the testator. (In re Estate of Davis, 168 Kan. 314, 212 P. 2d 343; Humphrey v. Wallace, supra.)
The appellant relies primarily on In re Estate of Weber, 192 Kan. 258, 387 P. 2d 165. There the deceased, Weber, who was ill signed the will in an automobile parked at the curb of the street beneath a window of a bank where he could be observed at a distance of 8 to 10 feet by three bank employees who saw him sign a document at his place in the automobile. After Weber signed the document it was taken into the bank where the witnesses signed their names. Weber could see the bodies of the witnesses as they subscribed their names to the purported will but could not see the pen or the purported will on the table at the time of the signing. At no time was there any communication between Weber and the witnesses other than their waving to one another. Weber never entered the bank building and never heard anything said in the bank. The witnesses never left the bank and heard no conversation that occurred in Weber’s automobile. This court by a four-to-three decision held that under the factual circumstances the proximity between the witnesses and the testator was not sufficient to establish “presence” and therefore there was not a sufficient compliance with K. S. A. 59-606.
When we apply the controlling principles of law discussed above to the factual circumstances of the case at bar, we find a clear compliance with K. S. A. 59-606. Here the undisputed testimony of the subscribing witnesses and of the attorney who drew the will, all of whom were present at the time of the execution of the will, established the following facts: The will was signed by the testatrix Maude M. Perkins and by the two witnesses while all were present in the same room. Both of the witnesses were told in the presence of the testatrix that they were there to witness the signing of Miss Perkins’ will. The witness Mrs. Pool was present when Miss Perkins read the will and heard the testatrix and her attorney, Marlin A. White, discuss its provisions. In the presence of the witnesses the testatrix, when asked, stated who her heirs were and stated what she was leaving in her will and to whom it was going. Mrs. Schlodder actually saw Miss Perkins sign the document. Although Mrs. Pool did not actually see Miss Perkins sign the will because of her position in the room, she knew that Miss Perkins had signed it and heard her discuss the possession of the will with Mr. White after the signing had all been completed. Mrs. Schlodder and Mrs. Pool saw each other sign the will. In view of these facts we find no merit to the first point raised in this appeal. We hold that there was no error in the conclusion of the trial court that the will was executed in accordance with the requirements of K. S. A. 59-606.
As his second point on this appeal the appellant contends that the testatrix Miss Perkins was not competent to make a will because she did not know the nature and extent of her property or who were the natural objects of her bounty. There have been many cases involving the issue of testamentary capacity of a testator. Those cases have developed guiding principles to be applied where the issue of testamentary capacity arises. The principles briefly stated are as follows:
(1) Where the mental capacity of the testator to make a will is the issue, the supreme court on review is only concerned with the inquiry whether there was substantial competent evidence to support the trial court’s finding of capacity. It does not compare or weigh testimony. (In re Estate of Smith, 168 Kan. 210, 212 P. 2d 322; In re Estate of Hall, 165 Kan. 465, 195 P. 2d 612; In re Estate of Bernatzki, 204 Kan. 131, 460 P. 2d 527.)
(2) In an action to avoid a will on the grounds of incapacity of the testator, when it is shown that a will has been executed in accordance with the formalities required by law, the burden is upon the will contestant and he must produce evidence to support his position. (Rich v. Bowker, 25 Kan. 7; In re Estate of Smith, supra; In re Estate of Walter, 167 Kan. 627, 208 P. 2d 262.)
(3) The test of a testamentary capacity is not whether a person has capacity to enter into a complex contract or to engage in intricate business transactions nor is absolute soundness of mind the real test of such capacity. The established rule is that one who is able to understand what property he has, how he wants it to go at his death and who are the natural objects of his bounty is competent to make a will even though he may be feeble in mind and decrepit in body. (In re Estate of Hall, supra; In re Estate of Smith, supra; Klose v. Collins, 137 Kan. 321, 20 P. 2d 494; Barnhill v. Miller, 114 Kan. 73, 217 Pac. 274; Anderson v. Anderson, 147 Kan. 273, 76 P. 2d 825; In re Estate of Bernatzki, supra.)
(4) The time when a will is made is the time of primary importance to be considered in- estimating testamentary capacity. Evidence of capacity or lack of capacity before or after that time serves only as an aid to determine the primary question. (In re Estate of Hall, supra.)
(5) The mere fact one is under guardianship does not necessarily deprive him of the power to make a will. (In re Estate of Hall, supra.)
In this case the trial court made extensive findings of fact which are discussed heretofore. These findings on the issue of testamentary capacity are supported by substantial competent evidence. There was ample evidence for the trial court to go either way on that issue. After thoughtful consideration the able trial judge found that the testatrix had the capacity to make a will on June 1, 1965. We cannot find error in his ultimate decision.
The judgment is afiSrmed. | [
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|
The opinion of the court was delivered by
Foth, C.:
This is a criminal appeal in which the primary issue is whether the appellant’s rented automobile was subjected to an unreasonable search.
On the night of May 4, 1969, the Sedgwick county sheriff and one of his deputies, Syd Werbin, were on the prowl in the outskirts of Wichita at about 11:00 p. m. They were looking for a burglary suspect, and their quest took them to the vicinity of the “Waterhole Club” on 37th Street. As they approached in their patrol car they observed a 1969 Mustang pull out of the driveway with a spinning of wheels. It swerved over the center line before settling on a westward course at a high rate of speed; the officers fell in behind. At the intersection of Arkansas Avenue the Mustang disregarded the stop sign, and turned left without signaling; it thereafter crossed and recrossed the center line again. At this point the officers turned on their red light and siren and the Mustang pulled over to the curb. The patrol car pulled in behind it.
The officers approached the Mustang, one on each side. In the hand of the appellant’s female passenger they observed a glass which, on closer examination, appeared to contain liquor. Appellant was asked to step out from under the wheel and the sheriff concluded from his observation that he was intoxicated. An open bottle of liquor was lying on the console between the seats.
At this point the sheriff determined that appellant should be placed under arrest, and told Werbin to take care of the formalities. This he did, while standing at the front fender of the patrol car, by advising appellant that he was under arrest for driving under the influence and transporting an open bottle, and by reading him the “Miranda” warning. When asked whether he wished to talk to the officers appellant made no response.
It was determined that the Mustang should be impounded, and a wrecker was summoned for the purpose of towing it in; a license plate check revealed that the car belonged to a local car leasing firm. Appellant and his companion were placed in the back of the patrol car, and the sheriff returned to the Mustang to explore a suitcase he had observed on the back seat. As the sheriff put it:
“Well, I went back to look at the car because when I first had looked inside the car I noticed a suitcase laying on the back seat. I had decided then that I was going to tow the car in; and so I just went and opened the suitcase to see if there was anything in it I should take out.”
Asked on cross-examination why he opened the suitcase he replied:
“First to see if there was anything of value in the suitcase because I knew I was going to relinquish control of it to the wrecker company; and second, to see if there was any more whiskey in the car which could be used as evidence in the open bottle case.”
Opening the suitcase revealed sheets and pillowcases and, most significant to the sheriff, an assortment of liquor. The selection included three varieties of Scotch, two of tequila, some Mexican gin, three kinds of wine and several bottles of very good bourbon; some of the bottles were only partly full. The sheriff promptly summoned deputy Werbin to bring the appellant up to the Mustang. When he arrived, again in the sheriff’s words:
‘7 said to him is this your whiskey. He said yes. I said where did you get it. He said I bought it. I said well, where did you buy it. He said I bought it up the street. I said well, who did you buy it from. He said from a guy. I said well, who was he. He said I never seen him before. I said you just bought open whiskey, expensive whiskey, and never seen the guy before. He said that’s right. I said when did you buy it. He said tonight. So I said— I told him that’s ridiculous, I can’t believe that. He shrugged his shoulders and said that’s it.”
Suspicions now thoroughly aroused, the sheriff took the keys from the ignition and went to the back of the Mustang. There, once more in his words:
“A. Well, I opened the trunk. There were several things in the trunk. Suddenly Undorf says that’s not my suitcase. I looked at him and said which one isn’t yours. He pointed and said that little green one. He said I never seen that before. I said what do you mean you never seen that before. He said this is a rented car that’s not my suitcase. I don’t know how that got there. I said is the rest of the stuff yours. He stated yes. I said but that’s not yours. And he said yes. So I just opened the suitcase.
“Q. When you opened the suitcase, what did you observe then?
“A. It was full of narcotics and drugs.”
The sheriff thereupon told both appellant and his companion that they were under arrest, and took them and the suitcase full of drugs to the county jail. En route it occurred to him to confiscate the lady’s purse, which proved to contain a loaded .38 calibre pistol. Werbin was left with the Mustang to await the wrecker, which in due course brought it to the county jail where its contents were removed.
As result of this episode appellant was charged with a number of offenses which were presented to a jury in a consolidated trial of four separate cases. The liquor and bedding, as well as a coin collection, camera and a number of small household items found in the car proved to have been stolen from a Wichita residence in a burglary which had occurred a day or two before the arrest. Appellant was acquitted of the burglary but convicted of feloniously receiving these items knowing them to have been stolen.
The drugs had been stolen from a drugstore in Lincoln, Kansas, about ten days before. Appellant was convicted of feloniously receiving this stolen merchandise, of feloniously possessing opium derivatives, and of the unlawful possession of non-narcotic prescription drugs, a misdemeanor.
He was also convicted of four traffic offenses: open bottle, speeding, illegal left turn, and driving on the wrong side of the road. He was not charged with driving under the influence because his blood test proved too low.
The net result was a sentence of one to five years in the penitentiary for receiving the stolen whiskey, etc.; concurrent terms of one to five years and one to seven years for possession of the narcotic drugs and for receiving the merchandise stolen from the drug store, to be served consecutively to the first “receiving” sentence; one year in the county jail for possession of the non-narcotic drugs; and varying jail terms on the traffic counts. All the jail sentences were ordered to be served concurrently with the felony sentences. This appeal is from all convictions except for the traffic offenses.
Appellant made a pre-trial motion to supress all the evidence taken from the Mustang and objected to its introduction at trial. His motion and his objections were overruled. His position is that the evidence was the product of an unreasonable search of the Mustang, made without a warrant and not falling within any of the recognized exceptions to the warrant requirement of the Fourth Amendment.
As its first line of defense the state urges that the search of the suitcase was incident to the lawful arrest of appellant. He, in response, does not contend that the arrest was unlawful, but urges that the justification for an incidental search is not present when the arrest is for a “minor traffic offense.”
The classic justifications for searching as an incident to an arrest are to protect the arresting officer from concealed weapons, to prevent the escape of the suspect, and to prevent the loss or destruction of evidence. See, e. g., Preston v. United States, 376 U. S. 364, 11 L. Ed. 2d 777, 84 S. Ct. 881, and cases cited therein. This longstanding rule has recently been codified in this state in K. S. A. 1971 Supp. 22-2501.
Appellant’s argument that there are no “fruits, instrumentalities, or evidence” of a minor traffic offense clearly overlooks the open bottle charge of which he was convicted, as well as the driving while intoxicated charge for which he was arrested but not tried. It is true the officers had already seized one open bottle, but we hardly think this precluded their looking for more.
There was, moreover, a second stated reason for searching the suitcase, and that was to determine whether it contained articles of value requiring safekeeping. This was closely akin to the “station-house inventory” search which has lately received considerable attention in the federal circuit courts, although so far as we are able to ascertain has as yet to be treated by the high court itself.
Typical of this line of cases is United States v. Lipscomb, 435 F. 2d 795 (5th Cir. 1970). There the defendant and his girl friend had been arrested in a hotel room on probable cause to believe that they had fraudulently used stolen credit cards. They and their baggage were taken to jail, where the baggage was routinely searched. The search uncovered an automobile key which led to a Chrysler parked at the hotel parking lot; the car was likewise taken into custody and searched. This search led to the ascertainment of its identification number, the fact that it was stolen, and eventually to the defendant’s conviction for transporting it in interstate commerce. The Fifth Circuit upheld the search of both baggage and car. As to the baggage search, the court said (p. 800):
“. . . It can not be denied that to prevent escape, self-injury, or harm to others, the police have a legitimate interest in separating the accused from the property found in his possession. An inventory is then necessary both to preserve the property of the accused while he is in jail and to forestall the possibility that the accused may later claim that some item has not been returned to him.”
As to the later search of the car it said (p. 801):
. . Ordinarily no search warrant would be required for such a procedure, for the reason that it is both reasonable and desirable that personal effects contained within impounded automobiles be protected for the benefit of the owners.”
Similar searches of the baggage of arrested defendants made for safekeeping purposes were upheld in United States v. Robbins, 424 F. 2d 57 (6th Cir. 1970) and in United States v. Blackburn, 389 F. 2d 93 (6th Cir. 1968).
In the case at bar the suitcase was not being searched as a part of a routine inventory, but it was being searched for the similar purpose of determining the need for safekeeping precautions. Arrangements had already been made for a private firm to take the car into custody, and the sheriff was justified, in our view, in determining what was in the suitcase. Of course, he could have removed the suitcase, taken it to the county jail with him, and inventoried it there. Had he done so he would clearly have fallen within the “stationhouse inventory” doctrine — although the argument then would no doubt have been that the search was not contemporaneous with the arrest. We see no distinction of substance between an on-the-scene preliminary search and a thorough inventory made at the j'ailhouse. Cf., Chambers v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; United States v. Robbins, supra.
Thus, either as a search incidental to a lawful arrest or as a reasonable safekeeping precaution we hold that the sheriff did not act unlawfully in opening the suitcase.
Once it was open and the array of liquor exposed the matter took on a different complexion. The sheriff was naturally curious to know where such an assortment — some boxed, some partially consumed — might have come from. Appellant’s account of having just bought it that Sunday evening from a stranger was inherently incredible. We believe that after hearing this story the sheriff had probable cause to believe it was stolen. The facts and circumstances known to him at that point were sufficient to warrant a prudent man in believing that a felony had been or was being committed. Once his suspicions were elevated to that level he was justified in searching the entire car, including the trunk. See, State v. Frizzell, 207 Kan. 393, 485 P. 2d 160, Syl. ¶¶ 3 and 4, State v. Blood, 190 Kan. 812, 378 P. 2d 548.
Appellant points out that when the sheriff searched the trunk he had no information that any particular theft had occurred from any particular person. But if the car contained stolen property an offense was being committed in the presence of the officers and they were not required to have in their possession all the evidence necessary to convict.
“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.” (Carroll v. United States, 267 U. S. 132, 149, 69 L. Ed. 543, 45 S. Ct. 280, 39 A. L. R. 790.)
And cf., Brinegar v. United States, 338 U. S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302; State v. Blood, supra.
Confusion has arisen between the right to search incident to an arrest and the right to search an automobile on probable cause. Preston v. United States, supra, perhaps contributed to this confusion by its holding that a search of the defendant’s automobile made at the police station some time after the arrest was invalid because it was “simply not incident to the arrest.” (376 U. S. 364, at 367.) However, in Chambers v. Maroney, supra, the court made clear that the same knowledge providing probable cause for an arrest may also furnish probable cause for a search. Referring to Carroll v. United States, supra, the Court said (399 U. S. at 49):
“The Court also noted that the search of an auto on probable cause proceeds on a theory wholly different from that justifying the search incident to an arrest:
“ ‘The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.’ 267 U. S., at 158-159.”
The upshot is that if there is probable cause to search a car such search need not be “incidental to” or “contemporaneous with” an arrest, but may be made wholly independently of any arrest at all. Compare Wood v. Crouse, 417 F. 2d 394 (10th Cir. 1969) with Wood v. Crouse, 436 F. 2d 1077 (10th Cir. 1971), the same case on remand after Chambers. Thus if, as we hold, appellant’s unsatisfactory explanation of his possession of the liquor in the suitcase gave rise to probable cause to believe it was stolen, the subsequent search of the trunk was not unreasonable.
We have examined the other points raised by the appellant and find no reversible error.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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Per Curiam:
In the fall of 1989, the appellee purchased corn and soy beans from Wesley Wayne Meyer, which grain was grown in Cherokee County, Kansas. Prior to the purchase of the com and soy beans the appellant had filed in the office of the Register of Deeds of Cherokee County, Kansas, a financing statement which described the crops and the land on which the crops were grown as follows:
“Crops: Annual and perennial crops of whatever kind and description which are now growing or are hereafter planted, grown, and produced on land owned or leased by debtor in Cherokee County, Kansas.”
The Security Agreement, which was not recorded, sets out the acres, kinds of crops, name of the farms (Schultz Farm, Rotobaugh Farm, Etc.) and the legal descriptions.
This action was filed by plaintiff against the defendant for $2835.49, the value of the crops purchased from Meyer. Defendant, in its answer sets out that it had no actual knowledge of the security agreement and that the financing statement was inadequate and did not constitute a notice to the defendant as required by K. S. A. 1971 Supp. 84-9-402 and 84-9-110 and is insufficient to perfect a security interest in the crops involved.
The district court concluded as a matter of law that the financing statement is insufficient to perfect any security interest in the crops involved in this case for the reason that it does not contain a suf ficient description o£ the real estate as required by K. S. A. 1971 Supp. 84-9-402 and 84-9-110. Even though it is apparent by the amendment of K. S. A. 84-9-402 (effective July 1, 1967), the legislature intended that something less than a legal description would suffice to give notice to third persons, it is evident from reading this section, along with K. S. A. 84-9-110, that some description be given, and that a description merely stating “land owned or leased by debtor in Cherokee County, Kansas,” is insufficient.
In its appeal plaintiff’s main argument against the judgment below is that the financing statement gave the defendant constructive notice and the defendant was put on inquiry to ascertain whether the crops were subject to the security agreement of plaintiff.
In the case of Emick v. Swafford, 107 Kan. 209, 191 Pac. 490, this court held (Syl. ¶4) that a chattel mortgage is not void (as against an execution) for want of a more definite description, which describes the property covered as all the personalty of every kind owned by the mortgagor, and shows that it is in his possession and in a certain county.
In the Emick case no statutory guidelines were involved. Here the description must conform to K. S. A. 84-9-110. This statute refers to some specific property. Purchaser or creditor should not be required to make a general search of the record or a general inquiry in the county as to lands leased by the debtor.
This court agrees with the district court that although the legislature, by K. S. A. 84-9-402 and 84-9-110, intended something less than a legal description, that as to purchasers and creditors, it is evident that a description merely stating “land owned or leased by the debtor in Cherokee County, Kansas,” is insufficient.
The judgment is affirmed. | [
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Per Curiam:
This is an appeal from an order of the district court summarily denying relief on petitioner’s motion under K. S. A. 60-1507.
The petitioner was convicted after a jury trial in April, 1967, of burglary and larceny and sentenced to life imprisonment. This conviction and sentence were appealed to this court and affirmed (State v. Jamerson, 202 Kan. 322, 449 P. 2d 542).
Petitioner prepared his 1507 motion with the assistance of the Kansas Defender Project. He did not use the form of motion, or anything “substantially in compliance” therewith, as required by Rule 121 (e) of this court (205 Kan. xhv, xlv), although, as we are informed, such forms are available at the Kansas state penitentiary. Essentially two grounds for relief were alleged: (1) Lack of preliminary hearing, and (2) use of a coerced confession.
The trial court had the records before it in ruling on the motion. The law has long been settled that if the records conclusively show the petitioner is entitled to no relief, it is not error to conclude the proceedings by summary hearing, in absence of the petitioner and without appointing counsel to represent him at the hearing (Daugherty v. State, 204 Kan. 604, 464 P. 2d 221).
The record here reveals petitioner waived his preliminary hearing. Also revealed is the fact that at his initial trial petitioner was afforded a full evidentiary hearing on the admissibility of his confession. In Tuscano v. State, 206 Kan. 260, 478 P. 2d 213, this court stated:
“It is only where constitutional rights have been impaired that trial errors may be considered in a 60-1507 action, and then only where exceptional circumstances are found to exist.” (p. 263.)
The trial court properly determined that petitioners motion should be denied summarily on the record as a matter of law.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
The appellant, Randy L. Williamson, was charged with possession of marijuana with the intent to sell the same. (K. S. A. 65-2501 [13], K. S. A. 1971 Supp. 65-2502 and65-2519 [a].) Williamson was convicted by a jury and sentenced by the district court to confinement for a period of not less than one nor more than ten years.
State’s witness, Steven Clark, received a telephone call at his residence in Wichita, Kansas, around 9:00 p. m. on March 28, 1971. The party calling identified himself as “Randy Williamson,” and asked, “you remember me, don’t you?” Clark, believing that he may have known the caller, responded, ‘Tes. How are you?” The caller then requested that Clark do him a “little favor.” The favor was that the caller wanted “4,000 black beauties — black and reds.”
Upon hearing the request for “black beauties,” Clark recognized that the caller had contacted the wrong person. He then suggested to the caller that he might be able to secure the “black beauties” and asked for the caller’s telephone number so that he might call him back. A telephone number was given and an address on North Fountain Street in Wichita. At the close of the conversation, the caller stated he had some marijuana if Clark might need some.
Clark immediately called the Wichita Police Department and his call was returned by Detective Gary Bolin. Clark related the conversation to Bolin who then made another telephone call to ascertain the current market price of “black beauties.” Bolin then called Clark back and asked him to contact the caller, inform him the drugs were available at ten cents a capsule, and to make inquiry into the caller’s willingness to barter for the drugs with the marijuana.
At approximately 10:00 p. m., one hour after the initial conversation, Clark called the number given and arrangements were made to complete the transaction at the intersection of Central, Oliver and Elm Streets in Wichita at 10:45 p. m. Clark quoted the price for “black beauties” at ten cents each and requested that the party identifying himself as Williamson “bring along” the marijuana. The response was that the party had only "six lids” that night but he could obtain “two kilos” on the next day. Williamson told Clark he could recognize the party’s car as a yellow 1967 Pontiac LeMans. Clark then called Bohn back and related the details of the second conversation to him.
Bolin, Detective Drowatsky, and an unidentified police officer then drove to the location of the designated transaction in separate cars and “staked out” the area. A few minutes after 10:30 p. m. a yellow 1967 Pontiac LeMans with three occupants entered a parking lot adjacent to the intersection where the transaction was to be consummated. Bolin observed the automobile for awhile and then as the car exited the parking lot, Bolin stopped it in the street. He approached the car, identified himself, and asked the .driver, Rick Weymore, to return the automobile to the parking lot. The three occupants, Williamson, Weymore and James Copley, were directed to take seats in the back of the patrol car and' as they were complying, Detective Drowatsky entered the parking lot.
Before going to Bolin’s patrol car, Drowatsky approached the Pontiac, opened the door on the passenger side, and not sighting any contraband in plain view, closed the door and proceeded to the patrol car where the subjects were seated. Bohn, upon ascertaining that nothing was to be found by plain view, asked the driver, Weymore, for permission to search the Pontiac. Consent was given and Drowatsky, overhearing the conversation, proceeded to search the car. Shortly Drowatsky returned to the patrol car with a brown paper sack containing six plastic bags which he found under the front seat of the Pontiac. The contents of those bags subsequently was found to be marijuana. Bohn advised the appellant at that point that he was under arrest and informed him of his rights. Approximately two hours had passed from the time of the initial telephone call until the arrest.
The appellant contends the district court erred in admitting into evidence over his objection testimony concerning the telephone call received by Steven Clark. His theory is that the telephone call was inadmissible hearsay; the assumption being that there was insufficient evidence to establish the identity of the caller as the defendant.
The admissibility of the telephone conversations was of paramount importance; without evidence as to that conversation, the state would fail in its burden of proof — the element of intent to sell being absent.
Communications by telephone are admissible in evidence where they are relevant to the fact or facts in issue, and admissibility is governed by the same rules of evidence concerning face-to-face conversations except the party against whom the conversations are sought to be used must ordinarily be identified. It is not necessary that the witness be able, at the time of the conversation, to identify the person with whom the conversation was had, provided subsequently identification is proved by direct or circumstantial evidence somewhere in the development of the case. The mere statement of his identity by the party calling it not in itself sufficient proof of such identity, in the absence of corroborating circumstances so as to render the conversation admissible. However, circumstances preceding or following the conversation may serve to sufficiently identify the caller. The completeness of the identification goes to the weight of the evidence rather than its admissibility, and the responsibility lies in the first instance with the district court to determine within its sound discretion whether the threshold of admissibility has been met. (State v. Kladis, 172 Kan. 38, 238 P. 2d 522; State v. Visco, 183 Kan. 562, 567, 331 P. 2d 318; Kansas Electric Supply Co. v. Dun and Bradstreet, Inc., 448 F. 2d 647 [10th Cir.], cert. den., 405 U. S. 1026, 31 L. Ed. 2d 486, 92 S. Ct. 1289; 29 Am. Jur. 2d, Evidence, §§ 380-386; 31A C. J. S., Evidence, § 188; Anno. 13 A. L. R. 2d 1409.)
The facts and circumstances more than adequately serve to satisfactorily establish the identity of the caller as Randy Williamson. When Steven Clark answered his telephone about 9:00 o’clock p. m. on March 28, 1971, the party at the other end of the line identified himself as “Randy Williamson.” During the ensuing conversation, a possible drug transaction involving “black beauties” and marijuana was discussed. At the conclusion of that conversation, the person claiming to be Randy Williamson gave Clark a telephone number at which he could be reached. When Clark returned the call approximately one hour later, he talked to the same person who again identified himself as “Randy Williamson.” During that conversation final arrangements for the transaction were agreed upon. Williamson was to meet Clark at the intersection of Central, Oliver and Elm Streets. The meeting was scheduled for 10:45 p. m. that night. Williamson said he would arrive in a yellow 1967 Pontiac, and was bringing six “lids” of marijuana for trading purposes. Shortly before the appointed time, a yellow 1967 Pontiac entered a parking lot adjacent to the intersection of Central, Oliver and Elm Streets. Randy Williamson was one of the three occupants in the car. He was seated in the front on the passenger side to the right of Weymore. The car was searched, and a brown paper sack containing six plastic bags filled with marijuana was found in the Pontiac under the right side of the front seat where Williamson had been sitting.
The connection between the telephone conversations and the facts and circumstances surrounding the rendezvous creates a cogent inference the appellant’s appearance at the location of the proposed barter and exchange was not by mere accident or coincidence. This court is of the opinion the district court did not err in admitting into evidence the telephone conversation.
The appellant next contends the search and seizure of the marijuana by Detective Drowatsky was in violation of his constitutional rights because the officer had no probable cause to arrest him; therefore, the search and seizure incidental to the arrest was unlawful. The premise upon which the argument is based is that Clark was unknown to the officers, thus having no reliable status as an informer.
The appellant has claimed no possessory interest in the automobile or the brown paper bag containing the marijuana; therefore, he has no standing to object to the search and seizure of Weymore’s car. (State v. Edwards, 197 Kan. 146, 415 P. 2d 231; State v. Grimmett & Smith, 208 Kan. 324, 491 P. 2d 549.) In addition, the record shows that Weymore consented to the search prior to Drowatsky’s investigation. Constitutional immunity from unreasonable searches and seizures may be waived by voluntary consent. (State v. Pierson, 202 Kan. 297, 300, 448 P. 2d 30; State v. Boyd, 206 Kan. 597, 481 P. 2d 1015; State v. Boyle, 207 Kan. 833, 486 P. 2d 849.)
Two of thé appellant’s witnesses did not appear to testify at his trial. The appellant asserted that had Weymore and Copley been present they would have corroborated his testimony. The appellant requested a continuance to secure those witnesses, which was denied by the district court. Moreover, as grounds for new trial, he contends that evidence in Copley’s affidavit was newly discovered, and with reasonable diligence could not have been discovered and produced at the trial.
K. S. A. 1971 Supp. 22-3401 provides that continuances may be granted either party for good cause shown. The granting of a continuance is within the sound discretion of the district court and will not be set aside unless the court has abused its discretion to the extent the movant’s rights have been violated. When a party seeks a continuance because of the absence of a witness, he must show due diligence to procure the witness’ testimony; he does not warrant a continuance merely upon an assertion he relied upon the promises of witnesses that they would be present and testify. (State v. Zimmer, 198 Kan. 479, 426 P. 2d 267, cert. den. 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298; State v. Milum, 202 Kan. 196, 447 P. 2d 801; Jackson v. State, 204 Kan. 823, 465 P. 2d 927.) The appellant made no showing his witnesses could not have been available had he exercised due diligence, and his argument is without merit.
The motion for new trial was pursuant to K. S. A. 1971 Supp. 22-3501 (1). When the facts are fully within the knowledge of the movant at the time of his trial, they cannot subsequently be categorized as newly discovered evidence. (State v. Oswald, 197 Kan. 251, 417 P. 2d 261.)
In the affidavit of James Copley, he states:
“. . . To the best of my knowledge I testified basically to this at Randy’s Preliminary Hearing . . .”
The affidavit frankly admits no new evidence would be elicited at a new trial that was not obtainable at the trial. That admission precludes a conclusion otherwise by this court.
The appellant contends he was entrapped by Steven Clark acting as an agent of Detective Bolin. He asserts that no definite intent to sell the marijuana was shown; rather, a barter and exchange was discussed, but no specific commitment had been made for a trade.
An accused can rely on the defense of entrapment when he is induced to commit a crime which he had no previous disposition to commit; however, he cannot rely on the defense when he has shown a predisposition for committing the crime and was merely afforded an opportunity to consummate the crime by law enforcement officers. (K. S. A. 1971 Supp. 21-3210 [a]; State v. Reichenberger, 209 Kan. 210, 495 P. 2d 919.)
The facts and circumstances of this case negate any reasonable inference that the appellant was entrapped. In the initial conversation, Williamson concluded with a statement that he had some marijuana if Clark needed some. In the second conversation, Clark made inquiry into the willingness o£ Williamson to barter. Williamson responded that he only had “six lids,” but he could get more. Finally, at the scene of the transaction the marijuana was found under the seat where Williamson had been sitting. It is clear that Williamson had in mind a sale of marijuana, or he would not have brought it along. We hold that entrapment is no defense.
Other matters raised by the appellant to justify a reversal of his conviction have been reviewed. We find no merit in those assertions and it is unnecessary to burden this opinion by a detailed discussion of their particulars.
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The opinion of the court was delivered by
Foth, C.:
Appellant was convicted by a jury of aggravated robbery and he appeals. This was appellant’s second trial for this offense, his first having resulted in a hung jury. His appeal turns on the state’s use at this second trial of the recorded testimony of a missing witness, one Emmett L. Dean, Jr., who had testified at the first trial. The facts of the crime are important only insofar as they are reflected in Dean’s testimony.
The charge stems from the holdup at gunpoint of Lee’s liquor store in Wichita the evening of December 11, 1970. The robbers were two in number: as Mr. Lee put it, “one of them was dressed like a woman and this other one was dressed like an ordinary man.” The one dressed as a man is alleged to have been the appellant; the other, one Tommy Abraham. The net proceeds of the robbery comprised three bottles of liquor.
The following day investigating officers had the witness Dean in custody and took a statement from him of his activities on the night of the robbery. In this statement Dean recounted spending the evening in the intermittent company of appellant and Abraham. The trio at one point were driving around in Abraham’s car, and there was some discussion of robbing a liquor store. Abraham was dressed in a woman’s pant suit, “hillbilly” hat and blue gloves, wore lipstick and other makeup, and carried a woman’s handbag. They parked on a side street near the Lee liquor store, where appellant and Abraham left Dean alone in the car. He was under the wheel when they returned and announced that they had just robbed a liquor store, and that he should drive if he didn’t want to go to jail. Dean saw appellant with a gun, and Abraham later told him he had three bottles of liquor in his bag. Dean’s statement also told of driving them from the robbery scene to Abraham’s house where the two robbers changed clothes, and of other activities until his arrest the next morning.
A tape recording was made of Dean’s entire statement, which was later transcribed. The recording and the transcription each figure in this case.
At appellant’s first trial Dean appeared as a witness. The morning before he testified he reaffirmed the truth of his earlier statement in a conversation with the detective who took it. On the witness stand, however, Dean told a wholly different story. In his new version Dean had borrowed Abraham’s car and was driving it near 15th and Mosley when he was accosted by two strangers, a man and a woman. They talked him into giving them a ride, and he obliged; for half to three quarters of an hour they visited various parts of Wichita. Eventually their wanderings took them to the neighborhood of Lee’s liquor store, where the persuasive couple induced Dean to park on a side street and wait for them while they took a three or four minute walk at about the time the store was robbed. Upon their return to the car he drove them back to 15th and Mosley dropped them off. He never saw them again.
The prosecutor, needless to say, was amazed to hear about this nameless couple (the man “said his name was Rill something”) who, seemingly must have committed the robbery the state had charged to the appellant and Abraham. Dean was forcefully reminded of his prior* statement; he was quizzed about the questions asked and his answers to them in some detail. As to many o£ them Dean professed a complete lack of memory, as to others he denied the accuracy of the transcript.
Appellant’s counsel cross-examined Dean at some length, particularly about the prior statement. His efforts were largely directed to discrediting the statement by suggesting that Dean was drunk when he made it and that it was coerced by threats from the detectives. He elicited from Dean that, regardless of what he may have said in the statement, his present testimony was the correct version.
The state then, through a detective, commenced to lay a foundation for the admission of the taped statement. Dean was excused from further attendance at the trial with the express consent of appellant, and after proper identification the tape recording was played to the jury.
That trial, as indicated, resulted in a hung jury. On retrial, Dean proved unavailable as a witness. Over appellant’s objection the state introduced his testimony at the first trial, and also the impeaching statement — this time by way of the written transcript rather than by playing the tape.
Appellant’s objection below and his main claim of error here are both based on his contention that the state failed to use “due diligence” in its efforts to procure Dean’s attendance. The rule requiring the state to use every reasonable effort to produce a missing witness before introducing his prior testimony is of long standing, and is recognized in such cases as State v. Washington, 206 Kan. 336, 479 P. 2d 833, Syl. ¶ 2; and State v. Bonskowski, 180 Kan. 726, 308 P. 2d 168.
Appellant argues that the state could not show reasonable diligence in any event because its subpoena for Dean was issued only on the morning the trial began. We believe his argument fails in the light of the state’s evidence showing not only the effort to produce Dean, but the background against which its reasonableness must be judged.
The first subpoena for Dean was issued March 25, 1971, for his appearance at appellant’s first trial. The address on East 23rd Street which Dean had given the detectives was found to be empty, but he was eventually located at his place of work. There, on March 30, 1971, a deputy sheriff served him when his foreman called him to the office. He appeared in response to this subpoena and gave the testimony summarized above.
A second subpoena was issued April 15, 1971, for Deans appearance April 19 at the trial of Appellant’s companion Abraham. It was served on him the same day it was issued, at the same place and in the same manner as the first subpoena.
A third subpoena, the one in question here, was issued on April 27, 1971, for his appearance the next day. In the morning a deputy proceeded again to the office at Dean’s place of employment, and the by now customary call was put out over the public address system for Dean to come to the office. When this failed to produce the usual result, an inter-office telephone call was made to Dean’s foreman. At this point Dean was observed through the office window punching out at the time clock and leaving by the back door. The deputy promptly made an effort to head him off, but was unsuccessful. After a quick trip around the building the deputy concluded that Dean had “disappeared real fast.”
For the next day and a half officers of the sheriff’s office and police department attempted to locate Dean at the addresses he had given previously, at work, and at potential addresses they had secured on their own initiative. After hearing evidence showing the foregoing, the trial court made the following rule:
"Court finds that a subpoena was issued, the correct address was issued on the subpoena, and that Mr. Dean was at the address where the subpoena listed he would be. And that when the officer arrived there, Mr. Dean left and has managed to evade process from that time to this, and is, therefore, unavailable as a witness. And it is moot to discuss other possible addresses when the address that was listed was accurate and the witness was there when the process server was there with his subpoena. If he is located — I understand there’s an order out for his apprehension — no copy of any previous testimony will be used. If he is not able to locate him, the previous testimony will be used. The Court will not be thwarted by the activities of persons who attempt to evade the issuance of process.”
While the state might well have allowed itself more time in which to serve Dean, we cannot say it was guilty of bad faith or even culpable neglect in failing to do so. It had twice previously served Dean without trouble, and he had responded to those subpoenas. Although he was a reluctant, even hostile witness, he had given no reason to suppose he would evade service on this occasion. There is also no reason to think that, as an obviously determined fugitive, he could not just as successfully have evaded process even if the state had had a few more days to look for him.
In State v. Guthrie, 192 Kan. 659, 391 P. 2d 95, Syl. ¶ 1, we said under similar circumstances:
“When the trial court in a criminal action is satisfied from the evidence adduced by the state that it has made every reasonable effort to produce the attendance of a witness, and is unable to do so, the testimony of such witness, given at a previous trial of the accused which resulted in a hung jury, may be introduced at the trial and read to the jury.”
Cf. also, State v Bonskowski, supra; State v. Streeter, 173 Kan. 240, 241, 245 P. 2d 1177, and cases cited therein. The trial court was satisfied with the efforts of the state, and so are we. We conclude that the trial court did not err in admitting Dean’s testimony from the first trial.
Appellant finally argues that even if Dean’s prior testimony was admissible the impeaching statement was not. He cites the rule set out in State v. Sorter, 52 Kan. 531, 34 Pac. 1036, Syl. ¶ 5:
“While ordinarily a party may not impeach his own witnesses, nor offer evidence for that purpose, he is not conclusively bound by the statements which the witness may make; and where a party has been entrapped or deceived by an artful or hostile witness, he may examine such witness as to whether he had not previously made contrary statements; and may, in the discretion of the court, be permitted to show what such contrary statements were.”
Similar statements may be found in more recent cases such as State v. Collins, 204 Kan. 55, 460 P. 2d 573; and State v. Jones, 202 Kan. 31, 446 P. 2d 851. Cf. State v. Gauger, 200 Kan. 515, 438 P. 2d 455.
Dean, appellant says, did not “entrap” the state at the second trial since the prosecution knew full well what his recorded testimony contained. Hence, he argues, the state could not impeach its own witness. Further, since Dean was not present and available for cross-examination at the second trial his statement was not admissible under the exception to the hearsay rule found in K. S. A. 60-460 (a).
The first part of this argument is answered by K. S. A. 60-420, authorizing “any party including the party calling him” to examine a witness as to his credibility and to “introduce extrinsic evidence concerning any conduct by him and any other matter relevant upon the issues of credibility.” The liberalizing effect of this statute on the traditional evidentiary rule was recognized in State v. Armstrong, 207 Kan. 681, 687-88, 486 P. 2d 1322. See also, State v. Harden, 206 Kan. 365, 377, 480 P. 2d 53; State v. Collins, 204 Kan. 55, 59, 460 P. 2d 573. Thus the state was free to impeach Dean even though he was tire states witness, and even though the state could not plead surprise at the second trial.
This freedom to impeach is subject to the qualification of K. S. A. 60-422 (b) that the impeaching statement “may in the discretion of the judge be excluded unless the witness was so examined while testifying as to give him an opportunity to identify, explain or deny the statement.” Dean was confronted at length with his prior contradictory statement and was subjected to full cross-examination about it at the first trial. Since the witness had ample opportunity to “identify, explain or deny” the statement the trial judge was not even called upon to exercise his discretion to exclude or admit it.
The lattter part of appellant’s argument on this point is based on Thompson v. Norman, 198 Kan. 436, 424 P. 2d 593. In that case the defendant sought to contradict the deposition testimony of a missing witness by means of a statement the witness had purportedly made to defendant’s sister. The trial court refused to admit the statement, and we affirmed. The witness had not been confronted with the statement during the taking of the deposition, and there had been no opportunity to cross-examine him with reference thereto. This court held simply that, under those circumstances, the witness was not “present at the hearing and available for cross-examination” so as to make the statement admissible under the hearsay exception of 60-460 (a). Its exclusion was also held to have been proper under 60-422 (b) as a fair exercise of the trial court’s discretion, again because the witness had not had an opportunity to “identify, explain or deny” the statement. (Id., 198 Kan. at 444.) In the case at bar, as discussed above, there was such confrontation and cross-examination at the first trial. Thompson v. Norman is therefore not controlling; on the contrary, by negative implication it suggests that because there was confrontation here the statement was admissible.
In this case Dean’s prior recorded statement could well be viewed as an integral part of his testimony. Without it, his testimony at the first trial would have been incomplete at best. We note that had Dean been served and been present at the second trial the state could have used the prior statement under the 60-460 (a) hearsay exception without ever calling Dean. The defense could then have called him and through cross-examination elicited his explanation— presumably the same as given in his prior testimony. As it was, the jury had the benefit of his explanation before it heard the state ment. Of course it would have been better to have had Dean present in person, but we agree with the trial court that justice and the courts should not be “thwarted by the activities of persons who attempt to evade the issuance [service] of process.” We believe that if Dean’s testimony was admissible at the second trial, as we are holding, the impeaching statement was also admissible.
There being no error the judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fromme, J.:
Resident electors of a disorganized school district appeal from a judgment in favor of the accused school board on an accusation in contempt.
The appellants are electors residing in the territory of former School District No. 84, which district was disorganized and more than three-fourths of its territory was annexed to Unified School District No. 443, Ford County, Kansas. Said unified district has its largest attendance facility in Dodge City, Kansas. At the time of the disorganization of School District No. 84 it was operating a school attendance facility for eight primary and four secondary grades at Ford, Kansas. In 1971, the board of education of the unified district attempted by resolution to close the high school attendance facility at Ford, Kansas, on the grounds that the building was unsafe and did not meet the fire protection and safety requirements for school occupancy as published by the chief deputy fire marshal of Kansas. Thereupon the electors of the disorganized district in a court action obtained an injunction against the board to prevent closing the high school attendance facility.
The following year the board of education of the unified district adopted a resolution to change the use of the high school attendance facility in Ford, Kansas, by discontinuing high school classes for grades 10, 11 and 12, and by maintaining classes for grades 7, 8 and 9 therein. Thereupon the electors of the disorganized district filed the present accusation in contempt against the board alleging that such action on the part of the board amounted to contempt of the previous injunction against closing.
The same judge who ordered the injunction heard the accusation in contempt. He determined that the change in use of the high school attendance facility was authorized by K. S. A. 1971 Supp. 72-8213 (e), that the previous injunction order against closing the high school attendance facility had not been violated and that the board was not guilty of contempt. The electors have appealed.
Although four points are listed as error, the first three may be considered as one contention, i. e., the trial court’s interpretation of its previous injunction order was erroneous, in that a change in use of the high school attendance facility at Ford violated the provisions of the injunction. The fourth and final point is based on a refusal of the trial court to award attorney fees and costs to the accusers.
The pertinent part of the injunction order of 1971 reads as follows:
“Wherefore, it is, by the Court, ordered, adjudged and decreed that the defendant Board of Education of Unified School District No. 443, Ford County, Kansas, be and it is hereby mandatorily enjoined and commanded to continue using the Ford High School attendance facility as a high school, unless and until the same may be closed by some lawful manner, in order that the resident electors of Disorganized School District No. 84, Ford County, Kansas, be afforded the protection of K. S. A. 72-8213 (Supp. 1970).”
The provisions of K. S. A. 1971 Supp. 72-8213 were in effect at the time the injunction order was entered, August 23, 1971. Generally, the statute imposes a limitation on the authority of boards of education of unified school districts to close attendance facilities. The statute provides that a board shall not close any attendance facility that is being operated by a district to be disorganized at the time the unified district is organized if at least three-fourths of the territory and of the taxable tangible valuation of the disorganized district is included in the unified district. However, it does provide that a board may close such an attendance facility if a majority of the electors of the attendance center consent either in writing or by vote at an election. An attendance facility is defined in the statute to mean a school building. An attendance center is defined to mean the area around an attendance facility consisting of the territory in the unified district which was formerly territory of the disorganized district.
In addition to closing by consent or election the statute authorizes closing in other specific situations. The present action of the unified board was not based upon any of the closing provisions of the statute.
The final paragraph of the statute reads:
“Nothing in this section shall be deemed to restrict or limit the authority of any board to change the use of any attendance facility, so long as at least three (3) high-school grades, three (3) junior high-school grades, or six (6) elementary school grades are offered in such attendance facility.” (K. S. A. 1971 Supp. 72-8213 le\.)
The action of the board which precipitated the accusation in contempt was taken under authority of this paragraph of the statute authorizing changes in use. The elimination of classes in grades 10, 11 and 12 at Ford High School affected 37 students.
The mandatory injunction of 1971 commanded the board to continue using the Ford High School attendance facility as a high school. However, the command did recognize possible future exceptions. The high school was to continue until it was closed in some lawful manner. The term high school is commonly understood to refer to a school which includes classes for grades 9 through 12 or, in those districts which have separate junior high schools, a high school may include classes for grades 10 through 12. The purpose of the future exceptions mentioned in the injunctive order was “. . . in order that the resident electors ... be afforded the protection of K. S. A. 72-8213 (Supp. 1970).” What are these protections provided by the statute?
Reading the statute as a whole two situations are contemplated. The first is when an attendance facility is closed. Certain protections for the resident electors are spelled out in the statute. Closing must be authorized by consent or by vote of the electors. Consent or vote may not be required under specified circumstances such as when the attendance facility (high school) has failed to receive accreditation; when it is located in a city which has a population in excess of 20,000; when the closing was effected prior to March 14, 1967, and the territory containing the attendance facility is attached or annexed without a signed agreement or without petition therefor by the unified district. The second situation contemplated by the statute is when a change in use of any attendance facility is ordered by the board. In such case the protections provided the resident electors relate to the number and combination of school grades which must be offered at the attendance facility. The offering must include either three high school grades, three junior high school grades or six elementary grades.
A change in use of a school attendance facility as authorized under paragraph (e) of K. S. A. 1971 Supp. 72-8213 does not constitute a closing of that facility so as to require consent or an affirmative vote of a majority of the electors within the attendance center.
The appellants (electors) contend that mandatory injunction required the accused (board) to continue high school classes at Ford High School. They attach no significance to that part of the injunction order which qualifies the mandatory injunction by providing, “. . . unless and until the same may be closed by some lawful manner, in order that the resident electors of Disorganized School District No. 84, Ford County, Kansas, be afforded the protection of K.S.A. 72-8213 (Supp. 1970).”
In determining the proper construction to be given a judgment the entire wording should be considered and given effect, if possible, to make the judgment reasonable, consistent and effective. (McHenry v. Smith, 154 Kan. 528, 119 P. 2d 493.) A judgment should be construed in light of the issues raised by the pleadings. Claimed rights arising from a judgment should not be expanded by implication in contempt proceedings beyond the meaning of the plain terms of the judgment when read in light of the issues joined by the pleadings. (Ensch v. Ensch, 157 Kan. 107, 138 P. 2d 491.) Judgments in contempt proceedings rest within the sound discretion of the trier of facts and will not be disturbed on appellate review unless an abuse of judicial discretion clearly appears from the record. (Brayfield v. Brayfield, 175 Kan. 337, 264 P. 2d 1064.)
When the same trial judge who entered an injunction order hears a later contempt proceeding based on violation of that injunction the interpretation placed on the injunction order by the trial court in arriving at a judgment of not guilty in the contempt proceeding will generally be followed by the appellate court. (Roush v. Hodge, 193 Kan. 473, 394 P. 2d 101.)
An examination of the pleadings and the judgment in the injunction action indicates that issues presented by the pleadings related to closing the school building for classroom purposes because the building did not meet minimum standards for fire protection and safety. Such grounds for closing were not urged under authority of K. S. A. 1971 Supp. 72-8213. The judgment entered in the injunction action recognized the authority of the board to close the attendance facility or to change the use so long as it afforded the electors the protections of K. S. A. 1971 Supp. 72-8213. Our construction of the judgment must give effect to the entire wording of the judgment when the entire wording appears reasonable and consistent.
The appellants contend that, since the statute was in effect at the time the mandatory injunction was ordered, the statutory authority granted therein was^absorbed by the judgment and the judgment granting injunctive relief required a high school to be maintained at the Ford High School attendance facility irrespective of any subsequent action taken by the board under the statute.
A judgment is construed in light of the issues raised by the pleadings on which the judgment rests. As previously pointed out the issues in the first action were limited and cannot be expanded by implication in contempt proceedings beyond the issues decided in the action.
In the present case the judge who heard the injunction action and entered the judgment was the same judge who determined the contempt proceeding. His interpretation o£ the effect of his previous injunction order in arriving at a judgment of not guilty in the contempt proceeding bears special weight with this court on appeal.
The case of Hand v. Board of Education, 198 Kan. 460, 426 P. 2d 124, is referred to by appellants. There we held an injunction was authorized and we prevented a unified district board from changing the use of an attendance facility at McCune without an election or consent. Such change of use was not authorized by K. S. A. 72-6756, although the board continued to maintain grade school classes in the attendance facility. Subsequent to our opinion in Hand the legislature repealed K. S. A. 72-6756 and passed the statute now under consideration including paragraph (e) of K. S. A. 1971 Supp. 72-8213.
Paragraph (e) appears to be a legislative alteration of the law discussed in the Hand decision, and clearly permits certain classes in a school building to be discontinued without a vote of the people so long as some designated classes are maintained there.
Appellants argue that the language of paragraph (e) does not contain any positive grant of authority to the school boards since it reads “Nothing in this section shall be deemed to restrict or limit the authority of any board. . . Appellants thus contend any authority to change the use must be specifically granted elsewhere. This argument loses sight of a basic conclusion reached by this court in the Hand case, that K. S. A. 72-6756 was designed to limit the general authority otherwise granted to school boards to manage the schools and determine where schools should be maintained. The same basic conclusion applies to K. S. A. 1971 Supp. 72-8213. (See K. S. A. 1971 Supp. 72-8205 and Webb v. School District, 167 Kan. 395, 206 P. 2d 1054.) Thus, paragraph (e) makes clear that although the statute limits the general authority of the board, it does not limit it if certain conditions are met.
Appellants next argue that, even if the use of the attendance facility is changed, a high school must be conducted somewhere in the disorganized district and that Ford High School students cannot be compelled to attend Dodge City High School.
If the legislature had wished to require that a local high school be maintained when the use of the building for certain grades is discontinued, it could have said so. As noted above, K. S. A. 1971 Supp. 72-8213 was a limiting statute and paragraph (e) was designed to establish certain conditions under which the limitation would not apply, namely, when the building was not closed but merely had its use changed in the manner set forth. The offering of the discontinued classes at the same locale was not a condition the legislature chose to impose upon the unified board and it cannot be imposed by this court. Thus the ruling of the court below appears proper.
A decision on guilt or innocence of an accused in a contempt proceeding rests in the sound discretion of the judge before whom the matter is pending, particularly when there is a question as to what was meant in an injunctive order previously entered by the same judge. Haynes v. Haynes, 168 Kan. 219, 212 P. 2d 312; Roush v. Hodge, supra.
Appellants’ final claim on appeal relates to a failure of the trial court to award them attorney fees. They cite no cases or statutory authority for assessing such fees as costs against an accused who is not found guilty of contempt. We know of none. K. S. A. 60-802 (c), cited by appellants, is not persuasive authority on this question. It relates to the allowance of damages in a mandamus proceeding when judgment is given for the plaintiff. This was not a mandamus proceeding and judgment was not for the plaintiffs. The claim for attorney fees was properly denied.
One final matter deserves comment. The Kansas Association of School Boards and an association identifying itself as The Schools for Quality Education obtained permission to file briefs in this appeal as amici curiae. The briefs filed question the constitutionality of K. S. A. 1971 Supp. 72-8213 (e), which question was not presented to the court below and was not included in appellants’ statement of points. Therefore the permission to file amici curiae briefs, if on constitutional questions, was improvidently granted.
An issue, other than one of jurisdiction, is not to be considered on appeal when not raised in the court below and when not included in the statement of points. (Board of County Commissioners v. Brookover, 198 Kan. 70, 74, 422 P. 2d 906; Atkinson v. Herington Cattle Co., Inc., 200 Kan. 298, 309, 436 P. 2d 816; Shinkle v. State Highway Commission, 202 Kan. 311, 448 P. 2d 12; Pacific Indemnity Co. v. Berge, 205 Kan. 755, 473 P. 2d 48.)
The trial court’s rulings on the questions presented to it in the contempt proceeding appear correct and the judgment below is affirmed. | [
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The opinion of the court was delivered by
Foth, C.:
Raymond Simpson and his mother brought this action for personal injuries and medical expenses incurred when Raymond encountered an automobile driven by the defendant, Mrs. Oleta Miller. Trial was to the court without a jury and resulted in a judgment for the defendant. Plaintiffs appeal.
Raymond was eight years old on August 23, 1969. On that day he was playing with four friends in his back yard in Wichita when the group was inspired to go to Raymond’s cousin’s house to play with him. Their route took them first to a filling station on the south side of 13th street, some distance east of Grove, where they stopped for a drink of water. Their next stop was a hamburger stand just east of the filling station; there they paused on the sidewalk to observe a “fat lady” inside.
While his companions were thus engrossed Raymond announced his intention to go on to his cousin’s, which was across 13th Street on the north side, and on down the block at the east end. Suiting action to words he stepped off the curb and headed diagonally across the street, “walking fast” in his words, “running with his head down” in defendant’s. The next thing he knew he encountered Mrs. Miller’s car.
Thirteenth Street is four lanes wide, and Mrs. Miller was driving east in the inside lane of the two east-bound lanes. She had been faced by a red light as she approached the Grove Street intersection and had slowed until it turned green. As she cleared the intersection she accelerated to 25-30 miles per hour (the speed limit was 35) and was some 100 to 150 feet down the block when she saw Raymond “running along the side” of her car. She hit her brakes, Raymond hit the right front bumper, and when she got out her right front wheel was on Raymond’s bare foot. He had fallen down but was standing, trying to extricate the foot; she got back in the car and backed off of it.
The investigating officer found a 26 foot skid mark from her left front wheel, a 28 foot one from her right, and as a result of testing pronounced her brakes “O. K.” Mrs. Miller’s car stopped about 16 feet from the south curb, i. e., one twelve-foot lane’s width and four feet more.
The crucial testimony of Mrs. Miller was that she didn’t notice the boys on the sidewalk by the hamburger stand and didn’t see Raymond until he was in the street next to her car.
On this evidence the trial judge entered judgment for the defendant, saying in his capacity of fact-finder, “I conclude that the plaintiff has failed to prove any negligence on the part of the defendant.”
This is a pure negative finding, and cannot be disturbed by this court in the absence of “arbitrary and capricious disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice.” American Housing & Investment Co. v. Stanley Furniture Co., 202 Kan. 344, 449 P. 2d 561, Syl. ¶ 1; Schroeder v. Richardson, 196 Kan. 363, 411 P. 2d 670, Syl. ¶ 6.
Plaintiffs’ primary claim of negligence, and the only one fairly within their designation of points relied on, was that Mrs. Miller failed to keep a proper lookout. They also argue “excessive speed” and “failure to warn,” allegations which necessarily depend on the “lookout” claim since there was nothing excessive about her speed unless she saw children in the street, and the duty to honk arises under K. S. A. (now 1971 Supp.) 8-557 only “when necessary.”
That statute further requires a motorist to “exercise proper precaution upon observing any child . . . upon a roadway.” (Emphasis added.) It thus recognizes and codifies the well estab lished principle that the motorist’s standard of care varies with the circumstances, and the known presence of children is a circumstance calling for extra precautions. Compare, Ratcliffe v. Speith, 95 Kan. 823, 149 Pac. 740, where children were playing in the street, with Morlan v. Smith, 191 Kan. 218, 380 P. 2d 312, where a child darted into the street. Both cases recognize the enhanced duty owed to children, but both recognized that the ultimate question of whether the motorist met that standard was for the jury.
The duty to reduce speed or honk, therefore, arises because of the hazard to children which is known to the motorist or which should have been known through the exercise of reasonable care. This brings us back to Mrs. Miller’s failure to see the boys on the sidewalk. Plaintiffs, in effect, would have us hold that the failure was negligence as a matter of law; this we are unwilling to do. It seems to us that just where on a four-lane street a driver’s attention must be focused and how much detail of the surroundings he must reasonably absorb depends on the circumstances, and under those present here was a question on which reasonable minds might differ. Such a question must be resolved by the trier of the facts. See Morris v. Hoesch, 204 Kan. 735, 466 P. 2d 272; Jarboe v. Pine, 189 Kan. 44, 366 P. 2d 783.
The investigating officer testified that Mrs. Miller stated at the time of the accident that she had seen the boys on the sidewalk. If this was so, it destroys plaintiffs’ 'lookout” claim, but raises the subsidiary questions of speed and the necessity of honking. Under the cases cited both of these are likewise questions for the trier of fact. We cannot say as a matter of law that a motorist in the center lane of a four-lane thoroughfare must either slow down or honk each time he sees a group of children on the sidewalk.
In sum, negligence in this case was a fact question and the trial court did not act arbitrarily or capriciously in finding as it did. Its judgment is therefore affirmed.
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Per Curiam:
This is an original proceeding in discipline.
The respondent, James I. Nelson, took exception to the recommendation of the State Board of Law Examiners (hereinafter referred to as the Board) that he be suspended from the practice of law for an indefinite period for violation of Nos. 1 and 8 of the Canons of Professional Ethics adopted by the American Bar Association (198 Kan. XVII, XVIII [now Supreme Court Rule No. 501]), more specifically Disciplinary Rules DR 1-102 (A) (5) and DR 8-102 (B) of the Code of Professional Responsibility. (205 Kan. Ixxvii, xci.)
The complaint against respondent stems from a previous appearanee of respondent before this court, reported in State v. Nelson, 206 Kan. 154, 476 P. 2d 240. In that case respondent was charged with five counts of misconduct in a complaint filed with the Board. Respondent was found guilty by the Board of the charges alleged in Counts II and III of the complaint. In its report to this court the Board recommended that the discipline should be public censure. In Counts II and III referred to, respondent was respectively charged with fraudulently misrepresenting himself as a detective and, in a radio broadcast, discussing litigation which was then pending in the United States District Court for the District of Kansas. Our opinion in State v. Nelson, supra, reflects that the evidence before the Board in support of the convictions on Counts II and III was clear and satisfactory. The report by the Board was accepted and its findings and recommendations were concurred in by this court.
Our decision in State v. Nelson, supra, was handed down on November 7, 1970. On the same day respondent was contacted by telephone about 4 p. m. by Bruce Sankey, a reporter for the Wichita Eagle-Beacon. Mr. Sankey prepared an account of his interview with respondent which was published on November 8, 1970, as follows:
“Exhibit ‘A’
“Sunday, November 8, 1970.
“Public Censube ‘Compliments’ Wichita Lawyer
“A Wichita attorney publicly censured Saturday by the Kansas Supreme Court, says he will appeal the action to the federal courts.
“James I. Nelson, 52, of 4141 Regents Lane, was censured by the high court for violations of the canons of legal ethics.
“Nelson, contacted by telephone Saturday evening, said: 1 did absolutely nothing wrong and they damn well know it.’
“A Special Panel of the State Board of Law Examiners found that Nelson had solicited’ law business and had a ‘general attitude to be one of little respect for the rights and sensibilities of others, of little respect for the police and courts, and an extreme overzealousness on his part in defending his clients.’
“Nelson said he felt ‘complimented’ by the allegations.
“ ‘I have very little respect for the police and the courts; that’s absolutely true. And I am very zealous in defending my clients but I do it very ethically,’ he maintained.
“Asked why he disrespects police and courts, Nelson replied: ‘Because the police are headbeaters and they arrest people illegally about as often as they do legally. I think they commit more crimes per man than the worst of our criminals.
“ ‘The Courts are commonly prejudiced and they’re much more concerned with who appears before them than what the facts are, and the law is.’
“The law examiners panel recommended Nelson be suspended for six months, but the entire board rejected this and recommended instead that he be punished by public censure. The court approved this recommendation and censured the attorney.”
The newspaper account does not, with any degree of accuracy, reflect the decision of this court or that of the Board. As we have noted, respondent was found guilty of only two of five charges, i. e., misrepresenting himself to be a detective and publicly discussing a case then on trial. While respondent, in Count I was charged with making statements which were alleged to be disrespectful and unjustly critical of courts in Wichita, he was not found guilty on either aspect of the charge. As our opinion in State v. Nelson, supra, reflects, respondent was only warned to show caution in the future with respect to statements and conduct of this sort.
Whether the discrepancies between the newspaper account and our decision resulted from misstatements by respondent or a misconception of the opinion by the reporter is not shown by the record herein. Since the decision had just been announced when Sankey called respondent, it could well be that this was respondent’s first notice of the decision. In any event, respondent’s responses to Sankey’s questions appear to be his immediate reaction to the decision on appeal in the prior case wherein he personally was the unsuccessful litigant — a circumstance which we have given consideration in arriving at our conclusion in this case.
Following publication of the newspaper account, a complaint was issued and subsequently came before a three member panel of the Board which found that respondent had violated two sections of the Code of Professional Responsibility (Rule No. 501, [205 Kan. Ixxvii, xci]) namely, DR 2-102 (A) (5) “Engage in conduct that is prejudicial to the administration of justice” and DR 8-102 (B) “A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer.”
Respondent states his position in the form of four issues which he says are to be determined by this court. They are:
“1. Can Respondent be disciplined for critical comments made of the judicial system following the final disposition of the case prompting such remarks?
“2. Does DR 1-102 (A) (5) create an impermissible infringement and chilling effect on First Amendment freedoms because of vague and overreaching construction?
“3. Is Respondent being impermissibly punished for his beliefs?
“4. Were Respondent’s comments libelous, under existing constitutional standards, and were they made with knowledge of their alleged falsity, if they were neither libelous nor knowingly made, can Respondent be disciplined for their utterance?”
We shall pass, for the moment, issues one and two, which we believe involve the crucial questions in this case and consider briefly respondent’s arguments in support of his issues three and four.
With respect to issue three, respondent argues that the word “prejudicial” as it appears in DR 1-102 (A) (5) is unconstitutionally vague and casts a “chilling effect on First Amendment freedoms.” Respondent’s position is unsupported in both instances. The word “prejudicial” is universally found throughout the legal and judicial system. Specific definitions are found in any dictionary. In Prunty v. Light Co., 83 Kan. 541, 108 Pac. 802, this court, referring to Webster’s Universal Dictionary, defined prejudicial as “hurtful,” “injurious,” “disadvantageous.” It cannot be seriously contended that “prejudicial” does not sufficiently define the degree of conduct which is expected of an attorney.
Concerning respondent’s argument that DR 1-102 (A) (5) creates an impermissible and chilling effect on “First Amendment freedoms,” an examination of decisions on the point (12 A. L. R. 3d, Anno., p. 1408) reveals the consensus to be that an attorney’s rights to free speech is tempered by his obligation to both the courts and the bar, an obligation to which ordinary citizens are not held. In the case of In re Sawyer, 360 U. S. 622, 3 L. Ed. 2d 1473, 79 S. Ct. 1376, the last case in which the United States Supreme Court addressed itself to the subject, it appears that at least five justices agreed that the right to free speech may not be invoked to protect an attorney against discipline for unethical conduct.
The point made by respondent with respect to his declaration in issue four is that the charge that respondent’s statements violated DR 8-102 (R) that “A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officers” in essence states that respondent’s expressions were libelous in nature and thus must be measured by standards prescribed in New York Times Co. v. Sullivan, 376 U. S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710. It appears respondent’s argument is that if his statements were not libelous within the “actual malice” rule announced in the New York Times case, then they were not sufficient to subject him to discipline. This argument is untenable for several reasons. First, the New York Times case and the supporting line of cases cited by respondent in his brief, are clearly inapplicable to a disciplinary proceeding because those cases are defamatory actions and deal with the constitutional privilege afforded news media. As an individual, respondent has no constitutional privilege to defame. (Beauharnais v. Illinois, 343 U. S. 250, 96 L. Ed. 919, 72 S. Ct. 725.) Second, it is widely recognized that neither civil nor criminal liability is necessary to maintain an action in a disciplinary proceeding. (In re Smith, 73 Kan. 743, 85 Pac. 584; Phipps v. Wilson, 186 F. 2d 748, [7th Cir. 1951]; Wilbur v. Howard, 70 F. Supp. 930, [1947]; 7 Am. Jur. 2d, Attorneys at Law, § 38, p. 66.)
Some of respondent’s argument in support of what he declares as issue two deserves consideration. Respondent says that even though it is assumed that courts have the power to limit the expressions of an attorney regarding a case pending before the court, on the grounds that such statements could be prejudicial to the outcome of such case, there is no basis to justify limiting the comment of any person, including an attorney, regarding the court or its officials after the case in question has been disposed of. We cannot agree with the proposition in the absolute form in which it is stated by respondent, however, we recognize that there is a well-defined distinction, in disciplinary proceedings, between statements made by an attorney with reference to a case pending and one that has been finally decided, (In re Sawyer, supra.)
Usually, statements by an attorney referring to a pending case which amount to misconduct give rise to proceedings in contempt. Posttrial criticism of a decision or the court in which it is made, if it transcends the limits of permissible conduct established in a particular jurisdiction involved, may give rise to either contempt or disciplinary proceedings. The instant case is a civil proceeding in discipline, as distinguished from a matter in contempt.
Since our decision on November 7, 1970, (State v. Nelson, supra.) terminated the case referred to by respondent in his interview, we do not believe a violation of DR 1-102 (A) (5) is clearly shown. The prohibition of DR 1-102 (A) (5) is conduct that is prejudicial to the administration of justice. Since the case was terminated, respondent’s statements can not serve as harassment or intimidation for the purpose of influencing a decision in the case involved. This is not to say that we find fault with the factual findings of the Board’s panel in this regard. We do not believe the findings establish a violation under the circumstances of the instant case. As pointed out by the panel, respondent submitted no corroborative evidence whatsoever in support of the truth or accuracy of his statements quoted in the newspaper account. Respondent’s defense consisted entirely of his own assertions concerning instances in which he believed the actions of certain courts showed prejudice. His testimony at the panel hearing consisted to a considerable extent of vilifying and abusing judges and lawyers of the Wichita area, including a member of the panel. He submitted no evidence, documentary or otherwise, in corroboration of his statements and his conduct before the panel, as it is shown in the record, was reprehensible and unprofessional. However, respondent’s conduct, on that occasion, is not the basis of the charges before us. On the point under discussion, our consideration is limited to the issue whether the newspaper account, under the attending circumstances, which we have pointed out, amounts to conduct that is prejudicial to the administration of justice. After careful consideration, we have concluded that our answer should be in the negative.
We turn then to what appears to be the crux of this proceeding. Did the statements of respondent, as shown in the newspaper account, amount to knowingly made false accusations against a judge or other adjudicatory officer, as proscribed by DR 8-102 (B) ? DR 8 (ABA Standards, Code of Professional Responsibility) relates to Canon No. 8 which reads: “A Lawyer Should Assist in Improving the Legal System.” Ethical Consideration [EC] 8-6 exemplifies DR 8 in the context of the language in Canon No. 8 with respect to the question here. In pertinent part it reads:
“. . . Adjudicatory officials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism. While a lawyer as a citizen has a right to criticize such officials publicly, he should be certain of the merit of his complaint, use appropriate language, and avoid petty criticism, for unrestrained and intemperate statements tend to lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified.” (ABA Standards, Code of Professional Responsibility, p. 107.)
Generally, courts are in agreement that while a lawyer may, in a proper tone and through appropriate channels, attack the integrity or competence of a court or judge, or the propriety of any particular judicial act, he may not, by unfounded charges, create disrespect for courts or their decisions and if he does so he may be properly disciplined. Attorneys have wide latitude in differing with, and criticizing the opinions of the courts, yet when they resort to misrepresentation and unwarranted assaults on the courts whose officers they are, they violate their duty and obligation and are subject to discipline. (7 C. J. S., Attorney and Client, § 23, p. 752.)
Many years ago a guideline for this court was established in In re Pryor, 18 Kan. 72. Justice Brewer speaking for the court said:
“. . . For no judge, and no court, high or low, is beyond the reach of public and individual criticism. After a case is disposed of, a court or judge has no power to compel the public, or any individual thereof, attorney or otherwise, to consider his rulings correct, his conduct proper, or even his integrity free from stain, or to punish for contempt any mere criticism or animadversion thereon, no matter how severe or unjust. . . .
“We remark again, that a judge will generally and wisely pass unnoticed any mere hasty and unguarded expression of passion, or at least pass it with simply a reproof. It is so that, in every case where a judge decides for one party, he decides against another; and ofttimes both parties are beforehand equally confident and sanguine. The disappointment therefore is great, and it is not in human nature that there should be other than bitter feeling, which often reaches to the judge as the cause of the supposed wrong. A judge therefore ought to be patient, and tolerant of everything which appears but the momentary outbreak of disappointment. . . .” (p. 76.)
Pryor was a contempt proceeding, nonetheless we think the wise words o£ Justice Brewer are appropriate and worthy of consideration in the case at bar.
We turn then to the question, what should our judgment be? As we have previously noted, the statements of respondent were in response to questioning by a reporter who sought out respondent soon after the decision was announced in litigation in which respondent was the losing litigant. Respondent’s statements, while admittedly unprofessional, were general in nature and directed broadly at all existing law enforcement and judicial institutions. Reporter Sankey, on direct examination, quoted respondent as saying “I did absolutely nothing wrong and I damn well know it.” On cross-examination Sankey changed his testimony, stating that respondent’s comment was “I did absolutely nothing wrong and they damn well know it,” as it appeared in the published account.
The discrepancy in Sankey’s testimony was not explained or resolved. The difference in the import of the two versions is substantial. The first is only respondent’s declaration of his own belief in his innocence; while in the second respondent not only professes his innocence but claims that this court and/or the Board was aware of said innocence in the prior proceeding. On this point the evidence falls short of the required clear and satisfactory proof. (In re Phelps, 204 Kan. 16, 459 P. 2d 172; and In re Ratner, 194 Kan. 362, 399 P. 2d 865.)
In a disbarment proceeding in the case of State v. Kirby, 36 S. D. 188, 154 N. W. 284, wherein disparaging statements of an attorney were published, the South Dakota court was confronted with an analogous situation. The court said:
“Believing that the misconduct of which defendant stands charged does not, when considered alone, show the defendant so unfitted to be an attorney of this court as would authorize a judgment of disbarment; believing that, in all else, save perhaps that one matter in respect to which he seems to be suffering an illusion, defendant will hereafter act toward this court with all due respect; believing that suspension of his rights as an attorney would not hasten the time of his disillusion, the only fact that would warrant such suspension; and believing that the public, whose servants we are and whose best interests we seek to promote will approve of our giving to defendant the benefit of any doubt we may have as to what our judgment should be: We are of the opinion that the disbarment proceeding should be dismissed. . . (pp. 209, 210.)
The instant case presents a situation anomalous to the ordinary disciplinary proceeding based upon disrespectful conduct of an attorney. Here respondent himself — rather than a client — was the losing party in litigation involving respondent’s standing as an attorney, a situation replete with emotion and acrimony. Respondent did not instigate the interview — rather he was sought out by a reporter seeking a news story with respondent’s immediate reaction to the unfavorable decision as the subject matter. Taking into account the circumstances enumerated, which we believe to be mitigating together with the fact that the statements attributed to respondent were generally in broad terms — rather than in the form of specific accusations; we have concluded that discipline is not warranted.
The proceeding is dismissed.
Owsley, J., not participating. | [
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The opinion of the court was delivered by
Owsley, J.:
This is a condemnation action filed by the Urban Renewal Agency of the city of Dodge City against the defendant LaVieiea Goldsberry to acquire property for an urban renewal project as authorized by K. S. A. 17-4756. The trial court found that the agency had the power of condemnation and that the defendant’s property was necessary for its lawful corporate purposes. The defendant filed a notice of appeal from the award of the appraisers.
Thereafter, the agency moved the court to dismiss the appeal for the reason that just compensation for the defendant’s property had already been determined and agreed upon by a valid and binding contract. The trial court found the defendant was bound by the contract and that just compensation had been agreed upon therein which was binding on the defendant, and dismissed the appeal from the award of the appraisers. The defendant seeks review of the trial court’s dismissal.
Prior to the filing of the condemnation proceedings the agency filed an action against the defendant asking that the following contract entered into by the parties be specifically performed:
“OPTION TO PURCHASE
Project: Kansas R-35
Parcel No. 115-E
Address: Dodge City, Kansas
“This Offer, made this 23rd day of May, 1969, by Mrs. LaVieiea Golds-berry, Dodge City, Kansas, hereinafter called the ‘Seller,’ to the Urban Renewal Agency of the City of Dodge City, Kansas, hereinafter called the ‘Agency.’
“Witnesseth: That for and in consideration of one dollar ($1.00) and other valuable considerations in hand paid, the receipt and sufficiency of which are hereby acknowledged, the Seller, being the owner thereof, hereby offers and agrees to sell and convey to the Agency the following described property, together with all improvements thereon, including but not limited to heating, lighting and plumbing fixtures, located in the City of Dodge City, County of Ford, State of Kansas, to-wit:
“The West 2 feet of Lot 16 and the East 23 feet of Lot 18 on Front Street in Dodge City, Kansas, and the East 6 inches of the partition wall between the building on the above described property and the building adjoining on the West, also known as Goldsberry Retail Liquor Store, 117 West Wyatt Earp Blvd.
according to the recorded plat thereof, together with any surplus ground adjacent thereto as would be disclosed by an accurate survey of the premises, which may by law or otherwise be vested in the Seller, upon the following conditions:
“The total purchase price shall be * Fifteen Thousand Eight Hundred and Seventy-Five Dollars . . . ($15,875.00) cash, to be paid on delivery of warranty deed as hereinafter provided.
“If this offer is accepted, the Agency shall endorse its acceptance hereon and mail notice thereof to the Seller at the address specified below. This offer shall be irrevocable for a period of ninety (90) days from the date hereof and shall remain in force thereafter until terminated by Seller giving thirty (30) days written notice to the Agency of such termination. The Seller agrees that this offer shall not be revocable and that he will not sell, mortgage, encumber, or otherwise dispose of such property or any part thereof prior to said expiration date, except to the Agency. This agreement shall be binding upon the Seller and his heirs, executors, administrators, successors, and assigns.
“Upon this Option being exercised as aforesaid, Seller will within ten (10) days thereafter deliver to the Agency an abstract of title covering said property. The Agency shall then deliver said abstract to an Abstract Company to certify to date at the Agency’s expense. After current certification by an Abstract Company, the Agency shall have ten (10) days in which its attorney shall make any objections to the tide. The Seller shall have thirty (30) days after any such obj'ection to cause defects in the title to be corrected, and the title to be made a good and merchantable fee-simple title, and will comply with said attorney’s requirements for correction of such title. If such title cannot be made merchantable within thirty (30) days after notice to Seller of such defects, the Agency shall not be bound by its agreement to purchase under this Option and may proceed to acquire said property by condemnation, in which case it is agreed, as an independent stipulation, that the j'ust compensation shall be the purchase price as set forth herein.”
The defendant filed her answer and cross-petition in the following form:
“Comes now the defendant and for answer to the plaintiff’s petition alleges and states:
“1. That she denies each and every allegation thereof except such as are hereinafter specifically admitted.
“2. The defendant admits she signed an option agreement similar to that attached to the plaintiff’s petition as Exhibit ’A’, but states that she did so only after an agent of the plaintiff represented to her that the difference between the total purchase price of Fifteen Thousand Eight Hundred Seventy-five Dollars ($15,875.00) provided for in said option agreement and the balance of Twelve Thousand Two Hundred Ninety-three Dollars and Eight Cents ($12,293.08) owing to First Federal Savings and Loan Association of Dodge City, Kansas, would be her property, and that all taxes, special assessments, and other liens against the property would be paid by the plaintiff to the various agencies involved in addition to said purchase price of Fifteen Thousand Eight Hundred Seventy-five Dollars ($15,875.00); that under the circumstances at the time this defendant executed said option to purchase agreement, she was permitted neither time nor opportunity to examine the provisions of said agreement and to be advised as to their legal effect; that subsequent to her execution of said option to purchase agreement, the defendant was notified by the plaintiff that in addition to the mortgage in favor of First Federal Savings and Loan Association, other liens would be deducted from said purchase price of Fifteen Thousand Eight Hundred Seventy-five Dollars ($15,875.00) as follows:
“SBA loan ..................................... $4,313.67
Taxes ........................................ 123.00
Special Assessments ............................ 498.05
thus creating a deficiency of One Thousand Three Hundred Fifty-two Dollars and Eighty Cents ($1,352.80) in the indebtedness secured by liens against the real estate affected by said option to purchase agreement; that she had been advised that the aforementioned liens were to be paid out of the total purchase price of Fifteen Thousand Eight Hundred Seventy-five Dollars ($15,875.00), in addition to satisfaction of the mortgage of First Federal Savings and Loan Association in the sum of Twelve Thousand Two Hundred Ninety-three Dollars and Eight Cents ($12,293.08), this defendant would never have executed said option to purchase agreement upon which this lawsuit is based.
“3. That inasmuch as the aforementioned misrepresentation was relied upon by this defendant and operated as an inducement to secure her signature upon said option to purchase agreement, said option to purchase agreement should be set aside as null and void.”
The record discloses that the matter was submitted to the court on documentary evidence and the court made tibe following conclusions:
“The Court concludes that ‘specific performance’ should not be resorted to in this case, in that defendant does not have recorded fee simple title, nor a merchantable tide; and in view of die fact that defendant would necessarily be required to make other financial arrangements before she could give a warranty deed conveying a fee simple tide; and also in view of the fact diat plaintiff may resort to condemnation proceedings under the Kansas Statutes. It appears that the Option to Purchase contract contemplates tiiis in the fifth paragraph thereof.
“The ‘independent stipulation’ that the just compensation shall be the purchase price in the event of condemnation (as set forth in the option contract in the fifth paragraph thereof) could not be upheld in the State of Kansas.”
As previously stated, the agency then filed their petition for condemnation and in connection with that proceeding the court dismissed the appeal of the defendant from tibe appraisers’ award on the ground that the defendant was bound in the condemnation case to receive as compensation the amount stipulated in the agreement.
The disposition of this appeal depends upon the validity of the option to purchase agreement. Defendant complains of the trial court’s finding that the binding nature of the option contract was determined in the prior case and the matter is res judicata. We are not concerned with whether or not res judicata applies. In either event we are satisfied tihe trial court’s construction of the option to purchase was correct. The contract does not offend public policy. The right to receive just compensation for land taken for public use is designed for the protection of the rights of individuals. Individual rights are subject to contract in any manner the holder of such rights may determine. (17 Am. Jur. 2d, Contracts, § 173, p. 531.)
The agency, by this agreement, obtained an option to purchase defendant’s property for a specific price. The agreement further provided that in event the title to the property could not be made merchantable the agency could acquire the property by condemnation. Provision was also made that if condemnation occurred just compensation would be the purchase price set forth in the agreement.
A similar agreement was considered in Danforth v. United States, 308 U. S. 271, 84 L. Ed. 240, 60 S. Ct. 231, pp. 282, 283. The government questioned the validity of the agreement and the court said:
“. . . In the objection to the commissioners’ report the prayer is for entry of a judgment in the agreed sum ‘and upon payment of the same that the Court decree an appropriate judgment in favor of plaintiff for the said easement.’ We construe the accepted offer as an agreement to fix the price at the named figure for the easement sought. Paragraph 3 of the letter shows condemnation was in mind.
“. . . We have no doubt that the authority to purchase given to the Secretary of War is sufficiently broad to authorize a purchase of petitioner’s interest in land subject to perfecting the tide through condemnation. The effect of such an agreement is to fix the value of the easement when the authority of the Court is invoked against a party to the agreement to acquire good title. In dealing with a stipulation to waive a requirement of filing a claim for tax refund with the Commissioner of Internal Revenue, we held such waiver enforceable in the face of a statutory requirement for such filing. The convenience of preparation for trial and the interest of orderly procedure was decisive there. Here the same reasons with the supporting language as to the power of purchase leads to the conclusion that the trial court erred in striking the answer and refusing the motion to determine the value at the agreed price. . . .”
In United States v. 252.57 Acres of Land, Etc., 157 F. Supp. 347 (N. D. Ga. 1957), the landowner executed an option to the United States for the purchase of his land for $5,500 and the option was accepted. The government filed condemnation and the landowner denied the amount constituted just compensation. The court granted summary judgment in favor of the United States and said:
“Paragraph one of the option to purchase and ‘Option for Purchase of Land and for Flowage Easement’ provides:
“ ‘(1) The purchase price of said land and flowage easement is to be Five Thousand Five Hundred and No/100 ($5,500.00) payable as soon as the United States has accepted this option and has had a reasonable time within which to secure and examine the evidence of title to said land and easement and to obtain the necessary approval of title; **.’
“Paragraph six of the option provides, as follows:
“‘(6) The vendor agrees that the United States may, at its election, and notwithstanding the prior acceptance of this option, acquire title to said land or any portion thereof or any interest therein, by condemnation or other judicial proceedings, in which event the vendor agrees to co-operate with the United States in the prosecution of such proceedings and also agrees that the consideration hereinabove stated shall be the full amount of the award of just compensation inclusive of interest for the taking of said land and that any and all awards of just compensation that may be made in the proceeding to any defendant shall be payable and deductible from said amount and that said consideration shall also be in full satisfaction of any and all claims of the vendor for the payment of the right of occupancy and use hereinafter provided for in paragraph (7).’
“The option to purchase easement for flowage purposes subject to the perfecting of title through condemnation is valid. Danforth v. United States, 308 U. S. 271(1), 60 S. Ct. 231, 84 L. Ed. 240.
“Such an agreement fixes the value in condemnation proceedings brought later by the Government against the landowner to make good title. Danforth v. United States, supra (2).” (p. 348.)
We are in accord with the reasoning in these two cases and as a result must support the binding effect of the agreement in the instant case. The defendant landowners argument ignores the fact that condemnation was contemplated in the agreement.
The landowner argues that the liens on the property involved exceed the agreed purchase price. This does not affect the validity of the agreement or the right to proceed by condemnation. It may be that the payment of the liens will exhaust the amount for which the land is acquired. Normally, the lienholders would be entitled to the funds in proper priority until they are exhausted.
Defendant further argues that in the prior case (specific performance ) the trial court held that the independent stipulation as to just compensation in event of condemnation could not be upheld in the State of Kansas. In the condemnation case the court reversed this finding and upheld the contract. We do not believe the holding of the trial court as to the effect of the contract upon condemnation in the prior case was binding on the court in the subsequent case since it was immaterial to the subject matter in the prior case. The effect of the agreement in event of condemnation was not necessary to a determination of the issues in the prior case. The rule is well stated in Brinkerhoff v. Bank, 109 Kan. 700, 205 Pac. 779, as follows:
“A judgment is only conclusive between parties as to matters substantially in issue and actually litigated and does not conclude the parties as to everything incidentally brought into the controversy or as to matters immaterial to the subject matter in litigation.” (Syl. ¶ 1.)
Also, see 46 Am. Jur. 2d, Judgments, § 423, p. 593.
We see no necessity of discussing other matters raised in the briefs in view of what we have stated herein.
The judgment is affirmed. | [
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Per Curiam:
This is an action to recover damages for personal injuries sustained by plaintiff, Mendenhall, while riding as a passenger in an automobile driven by defendant, Rose. The trial court, after hearing arguments of counsel, considered the pleadings, the depositions, the admissions, the statements contained in the affidavits, and entered summary judgment in defendant’s favor— ruling there was no genuine issue as to any material facts on the controlling issue of the guest statute; and found as a matter of law that plaintiff was a guest within the meaning of K. S. A. 8-122b.
Plaintiff and defendant were friends, plaintiff being a student at Northwestern College in Alva, Oklahoma, and defendant being employed at the Co-op there. Plaintiff would travel to Wichita to visit his parents and defendant would go along to have fun. They had traveled together on previous occasions and would alternate taking each other’s car; the person driving would pay the expenses. Sometimes defendant would stay at plaintiff’s parents’ home where he would take some meals.
On February 14, 1969, defendant and plaintiff decided to go to Wichita and defendant was driving his automobile. In the course of the journey an accident occurred and plaintiff suffered injuries.
Plaintiff stipulated at pretrial conference that he was proceeding on the theory of ordinary negligence. His position is that he and defendant were parties to a “share-the-ride” agreement which constituted compensation to defendant and such was sufficient to remove plaintiff from the guest statute, and he relies upon Sparks v. Getz, 170 Kan. 287, 225 P. 2d 106; and Ehrsam v. Borgen, 185 Kan. 776, 347 P. 2d 260.
Plaintiff argues that, even if the understanding that they would take turns driving and the driver at the time would pay for the gas and oil did not amount to the equivalent of payment for transportation, the fact that defendant on occasions stayed at plaintiff’s parents’ home — enjoyed free board and room — constituted a method of payment and a benefit to defendant removing him from the protection of the guest statute.
We cannot adopt plaintiff’s theory of the case. The cases plaintiff relies upon are not in point since they deal with arrangements for going to and from work, which promoted tangible mutual interests. They also reflect business transactions which motivated the trips.
We believe that, under the undisputed facts, the case is controlled by Rothwell v. Transmeier, 206 Kan. 199, 477 P. 2d 960, where we held:
“Under K. S. A. 8-122b and our Kansas decisions, furthering the mutual interests of the parties is not necessarily sufficient to remove the passenger from the status of a guest, unless some business aspect is present. Social benefits and pleasures, whether mutual or otherwise, are insufficient to escape the guest statute.” (Syl. ¶ 6.)
See also, Carruth v. Cunningham, 207 Kan. 781, 486 P. 2d 1401, the most recent decision on the question involved, wherein we held:
“When the purpose of an automobile excursion is purely for social purposes, mutual pleasure and the enjoyment of the parties, an incidental payment for gasoline by the person being transported does not constitute ‘payment for such transportation’ within the meaning of the statute.” (Syl. f 3.)
From an examination of the record we can find no basis from which a jury could have found for plaintiff.
The undisputed facts simply lead to but one conclusion, i. e., the unfortunate trip was a social journey in which the subject of compensation was not a motivating factor, but was merely a courtesy that friends extend to one another. Consequently it follows that the trial court properly ruled there was no genuine issue as to any material fact on the principal issue of the guest statute and did not err in granting summary judgment in favor of defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
The question here is whether an award of alimony in a divorce decree, based upon an agreement of the parties and ordering alimony payments to the wife until her remarriage or death, is terminated by the wife’s remarriage when such marriage is voidable and is subsequently annulled.
The contesting parties were married September 6, 1960, and at all material times since have resided in Johnson county, Kansas. On November 22, 1967, tbey were divorced in the district court of Wyandotte county, Kansas. In the divorce proceedings they entered into a written property settlement agreement. This instrument provided for the division in kind of certain items of property. It also provided that the plaintiff Evelyn should have custody of the parties’ minor daughter for whose support the defendant David agreed to pay $100 per month until further order of court, plus her unusual or extraordinary medical or dental expenses.
The agreement contained this provision for alimony:
“3. The defendant will pay over to the plaintiff the amount of $300.00 per month as alimony until and unless such time as the death or remarriage of plaintiff nullifies this agreement, said payments to commence on December 1, 1967, and further payments shall be payable on or about the first day of each month thereafter until the death or remarriage of the plaintiff. . . .,”
and it concluded with this language:
“The parties hereto each intend and understand that this agreement is intended to constitute a full, final and complete settlement of all property rights and all obligations for support' and maintenance by and between the parties hereto. Plaintiff, in particular, understands that by virtue of the agreement hereinabove set out she may not look to the defendant for financial assistance in the way of alimony or property in any manner inconsistent with the terms or in violation of this agreement.”
In granting the divorce the trial court found that the agreement was fair and equitable, approved the agreement and ordered it merged into the divorce decree by reference.
The next event revealed by the record on appeal is the marriage in Kansas City, Missouri, of Evelyn to one Skelton on August 13, 1969, pursuant to a marriage license issued in Cass county, Missouri. This union was short-lived. Evelyn engaged legal counsel other than the one who had represented her in the Wyandotte county divorce, betook herself to Leavenworth county, Kansas, where on October 23, 1969, she obtained an annulment on the ground Skelton had fraudulently induced her to enter into the marriage contract. The annulment decree reveals Skelton waived service of summons in that action, entered his appearance therein and consented to immediate trial. The decree further evidences Evelyn received judgment of $2,400 against Skelton to compensate her for her interest in a 1969 Continental Mark III awarded her erstwhile spouse.
Evelyn did not inform David of her matrimonial venture, nor of its subsequent invalidation, and dutifully he continued his $300 alimony payments to her — which she accepted. David’s first knowledge of the affair came from an unsigned letter received by him in October, 1970. When his investigation confirmed the anonymous allegations, he filed in the trial court on November 13, 1970, his motion reciting the concealed remarriage and its subsequent annulment; he asked that his obligation to pay alimony be terminated retroactively to the date of such remarriage and that he have a judgment of $3,900 by way of restitution for the overpayments accepted by Evelyn.
Evelyn responded by filing her answer to this motion in which she admitted her participation in the Skelton marriage ceremony and that she lived with Skelton for a few days. She asserted that the annulment because of fraud rendered her purported marriage to Skelton void ab initio and therefore the marriage had no effect upon her continuous right to alimony. In the alternative, in the event her alimony should be discontinued, she asked for an increase in the amount of David’s child support payments.
Treating the issue as a matter of law and without hearing evidence, the trial court on November 25, 1970, denied David’s motion. Thereafter the court permitted a rehearing at which it received testimony offered by the parties. For present purposes we need not relate this evidence except to note it disclosed that Evelyn’s marriage to Skelton was in fact consummated. At the conclusion of the rehearing the trial court adhered to its initial order denying David any relief and he has now appealed.
This court has not previously dealt with the precise question at issue.
The trial court arrived at its decision by reason of certain language found in Johnson County National Bank & Trust Co. v. Bach, 189 Kan. 291, 369 P. 2d 231, and appellee urges affirmance upon that basis. In Johnson a wife who was granted a divorce accepted the provisions of an irrevocable trust in lieu of alimony. The divorced spouses were the settlors in the trust agreement which provided for periodic payments to the wife of the net income derived from the trust estate until her death or remarriage. In event of her remarriage she was to receive only three-fifths of the income, the remaining two-fifths to go to the parties’ children, who were also named as remaindermen of the trust estate. During existence of the trust the trustee was authorized to invade the corpus to provide comfortable maintenance of the beneficiaries. The wife later was a party to a marriage ceremony in Wyoming, of which event she promptly notified the trustee. Subsequently she learned her intended spouse had a wife from whom he had never been divorced and as a result she obtained an annulment upon the ground of his incapacity to contract a valid marriage. The trustee declined thereafter to pay her the full amount of the trust income and filed a declaratory judgment action for directions. The trial court held that notwithstanding its annulment the purported marriage constituted a remarriage under the terms of the trust agreement.
In reversing the judgment this court emphasized that the wife had made a substantial contribution of her own property to the trust estate. Respecting a void marriage this was said:
“Under Kansas law a marriage where one of the parties at the time has a husband or wife living is void, absolutely and in all aspects. It requires no judgment of divorce or of nullity to render it void. It is void inherently and from the beginning. The innocent party may, however, maintain an action in equity to have such colorable marriage declared null and void. ... In Powell v. Powell 18 Kan. 371, the court, speaking of a void marriage for want of mental capacity on the part of one of the parties, said: ‘Not only was there no marriage de jure, but it would also be a misnomer to call it a marriage de facto, although law-writers thus frequently designate it.’ (p. 379.) . . .
“A void marriage may be treated as void by the parties to it and by all the world. It is good for no legal purpose, and is not attended or followed by any of the incidents of a valid marriage. A decree or adjudication of annulment for a void marriage is supported because conducive to good order and decorum, and to the peace and conscience of the party seeking it. . . . An annulment has the effect of declaring the marriage relation void ab initio.” (pp. 295-296.)
The court went on to state:
“The primary purpose of the trust, as we construe the trust instrument, was to provide for the support and welfare of the immediate beneficiary, Mrs. Bach, with a gift over to the children in the event of her death. To fulfill this primary purpose the trustee is authorized to invade the corpus of the trust estate, even though the result might be detrimental to subsequent beneficiaries. If there was to be an alteration in the primary purpose by making a reduction in the income payments to Mrs. Bach in the event of her remarriage, it was the intention of the parties to substitute another source of income for her support in its stead. This could be accomplished only by a valid marriage, one which gives rise to marriage status. The event or contingency of remarriage, therefore, within the contemplation of the parties to the trust agreement required the creation of a valid marriage status. This, in our opinion, was the intention of the parties expressed therein.” (p. 298.)
We think it clear that Johnson does not for several reasons argue strongly, if at all, for the conclusion appellee would have us reach here. There the marriage was bigamous and absolutely void even in the absence of a decree so declaring it; such a marriage is incapable of ratification regardless of the wishes of the participants. Here it was merely voidable, being induced by fraud where one of the parties had an option to continue the marriage and make it valid despite the fraud, or set it aside. In Johnson the wife had contributed substantially of her own property to the trust corpus from which she was to receive payments until her remarriage. Here, it is readily apparent from the property settlement agreement the alimony paymnts were not, either partially or wholly, in lieu of an award of property owned or acquired by the parties during their marriage, and appellee advances no contention to the contrary. In Johnson, from the terms of the agreement itself, this court could ascertain the parties’ intention to provide thereby a source of support for the wife and, more importantly, the further intent, if that arrangement were altered, to substitute in its stead another source of income for support which could be accomplished only through a valid marriage status. No such intention is evident from the agreement in the case at bar. If anything, it speaks to the contrary.
Courts in other jurisdictions have employed different rationales in considering the effect upon alimony of an annulled remarriage. Varying results have been reached where the remarriage is void but there is now virtual unanimity where it is merely voidable. In the latter case the rule which has been applied is that a husband’s obligation to pay his divorced wife alimony until her remarriage terminates upon that event and is not revived by the subsequent annulment (see ALR 2d Later Case Service to anno, at 48 ALR 2d 318, 329; Tucker, “Effect Of An Invalid Remarriage On Alimony Payments”; XXIV Wash. & Lee L. Rev., 326). In many of the decided cases public policy has been the deciding factor (see, e. g., Flaxman v. Flaxman, 57 N. J. 458, 273 A. 2d 567). Intriguing as this aspect of the situation may be, we need not explore it in the case at bar even though we might be led to the same result.
K. S. A. 1971 Supp. 60-1610 (d) provides that payment of alimony settled by agreement, found by the trial court to be valid, just and equitable and incorporated in the divorce decree, is not subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent.
Here the divorce decree approved and incorporated the parties’ written separation agreement as to alimony. In Drummond v. Drummond, 209 Kan. 86, 495 P. 2d 994, we had this to say respecting such agreements:
“The intent of the parties to a separation agreement is determined by the agreement when its terms are plain and unambiguous, and when the language is clear and unequivocal the meaning must be gleaned from its contents alone and words cannot be read into an agreement which import an intent wholly unexpressed when the agreement was executed.” (Syl. ¶ 4.)
As already indicated, we have no difficulty in concluding that the agreed provisions for alimony are clear and unambiguous, leaving no room for outside matters to be used to change their meaning or to construe them. The agreement called for alimony payments “until and unless such time as the death or remarriage of plaintiff nullifies this agreement”, such payments to commence on a prescribed date and to continue “until the death or remarriage of the plaintiff”; further it specifically cautioned appellee she could not look to appellant for financial assistance in the way of alimony or property in any manner inconsistent with the terms or in violation of the agreement.
The agreement says nothing about the status of the remarriage and termination of the alimony is not made to turn on its validity. Nothing in the agreement evinces an intent to provide, as was the case in Johnson County National Bank & Trust Co. v. Bach, supra, that if the arrangement therein provided was altered, to substitute in its stead another source of income for support which could be accomplished only through a valid marriage status. The agreement simply provided that alimony was payable until appellee remarried. The word “Remarriage” is an ordinary one in common usage and the agreement contains nothing to indicate anything other than its use in its popular or conventional sense was intended. Certainly appellee must have understood that by remarrying she was abandoning her claim for support under the agreement, for better or for worse, in favor of whatever support would be furnished by her new spouse. Appellee remarried and the alimony ceased. There is nothing in the agreement which can serve as any basis for its subsequent revival (see Gaines v. Jacobsen, 308 N. Y. 218, 124 N. E. 2d 290, 48 A. L. R. 2d 312). It may be noted in passing that alimony is now obtainable in Kansas in connection with an annulment (K. S. A. 1971 Supp. 60-1610 [c]).
We hold that the manifest intention of the parties expressed in their agreement was that the obligation imposed on the husband to provide alimony to his divorced wife until her remarriage should terminate upon such remarriage even though such marriage is voidable, and the obligation was not revived by the subsequent annulment of the remarriage. Applied here, this means the trial court erred in denying the relief sought by appellant and that judgment must be reversed.
At the time this appeal was argued and submitted appellant had paid into court as alimony for appellee since the time of her remarriage the sum of $10,200. By way of restitution appellant is entitled to judgment against appellee for that amount and it is so ordered. It must be borne in mind judgments for alimony and for child support are entirely separate and distinct and that payment or overpayment of the one does not result in payment of the other (Ediger v. Ediger, 206 Kan. 447, 479 P. 2d 823); further, that the district court remains open to modify any order of child support as may be warranted upon application and full hearing of all the circumstances.
The judgment is reversed and remanded with directions to proceed in accordance with the views herein expressed.
APPROVED BY THE COURT. | [
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|
The opinion of the court was delivered by
Kaul, J.:
Defendant appeals from a conviction by a jury of the offense of indecent liberties with a minor as defined in K. S. A. 1970 Supp. 21-3503 [now 1971 Supp.].
After his motion for a new trial was overruled, defendant was sentenced to the custody of the State Director of Penal Institutions for a term of not less than twelve nor more than thirty years pursuant to K. S. A. 1970 Supp. 21-4501 (c) and 21-4504 (2) [now 1971 Supp.].
For his first point on appeal defendant claims the evidence was inadequate to sustain his conviction. We consider this point within the framework of the frequently stated rule that our function on appeal is to ascertain whether there is a basis in the evidence for a reasonable inference of guilt. (State v. Melton, 207 Kan. 700, 486 P. 2d 1361; State v. Aten, 203 Kan. 920, 457 P. 2d 89; and State v. Nicolay, 202 Kan. 209, 447 P. 2d 403.)
Without reviewing all of the state’s evidence we have no hesitancy in saying it was ample to sustain the verdict. The state’s evidence consisted of the testimony of the victim, David Freeman, substantiated by the testimony of his mother, Hazel Freeman, and of David’s friend, Larry Boyd.
On November 15, 1970, David was fourteen years of age. On the evening of that day David and Larry Boyd were at the Freeman home at 921 N. Clay. Defendant was an acquaintance of the Freeman family. At approximately 10 p. m. defendant came by the Freeman home and inquired if the two boys (David and Larry) could go with him and assist in moving his belongings from the trader he was occupying at the Ralph Ulm Trailer Court on Para-more Street in North Topeka. After the three arrived at defendant’s trader there was some drinking and conversation. They later went out and bought some potato chips and beer and returned to the trader. David went to the bathroom and was followed by defendant who, according to the testimony of David and Larry, locked the door. David and defendant remained in the bathroom for about an hour during which time the acts, for which defendant is charged, were performed. Larry testified that he attempted to open the bathroom door several times but defendant told him to mind his own business. The two boys remained in defendant’s trailer until about 8:30 a. m. — defendant had previously left for work about 6 a. m. After the two boys left the trailer to go back to the Freeman house, David told Larry what had happened to him. When David arrived at his own home he told his mother; his mother examined him and gave him some ointment to treat his injuries. David’s pants were torn — his testimony was that defendant tore them off of him. The pants were introduced into evidence.
Defendant’s evidence consisted only of his own testimony. Defendant denied abusing David in any way and stated that if anything happened to David it happened after defendant left for work, which he said was about 5:30 a. m.
It is evident the jury believed the state’s witnesses which was its prerogative as the trier of facts. It is well-settled that credibility of witnesses will not be passed upon, or conflicting evidence weighed on appellate review. (State v. Cushinberry, 204 Kan. 65, 460 P. 2d 626; and State v. Chuning, 201 Kan. 784, 443 P. 2d 248, cert. den. 393 U. S. 1069, 21 L. Ed. 2d 712, 89 S. Ct. 726.) Defendant may not complain if the jury believed the state’s witnesses, rather than his own. (State v. Mae McLaughlin, 207 Kan. 584, 485 P. 2d 1352.)
For his second point on appeal defendant states the county attorney made prejudicial statements in his closing argument to the jury. However, he makes no affirmative showing that anything said amounted to prejudicial error. Defendant does not set out the alleged prejudicial statements, neither does he assert that any objection was made at the time. It is the defendant’s burden on appeal not only to affirmatively show error, but further that the alleged error resulted in substantial prejudice. (State v. Guffey, 205 Kan. 9, 468 P. 2d 254; and State v. Miller, 204 Kan. 46, 460 P. 2d 564.)
Defendant next claims the state failed to prove jurisdiction of defendant because his exact age was not affirmatively established by the evidence. The only question that could arise in this connection is whether the evidence was sufficient to show that defendant was an adult. The question is raised by defendant for the first time on appeal. We think it wholly without merit. It is well-established that any material facts, including the corpus delicti itself, may be proved either by direct testimony or by indirect or circumstantial evidence, or a combination of both. (State v. Cippola, 202 Kan. 624, 451 P. 2d 199, cert. den. 396 U. S. 967, 24 L. Ed. 2d 432, 90 S. Ct. 446.) The state points out that the fact of defendant’s presence alone, in a position for the jury to observe him and to see that he was a middle-aged man, was certainly sufficient to establish that he was eighteen years of age or older. There is no affirmative showing by defendant that the court did in fact lack jurisdiction in this regard.
Finally, defendant claims there was no proof that the alleged crime was committed in Shawnee County. It is true that under the provisions of K. S. A. 1970 Supp. 22-2602 [now 1971 Supp.], prosecution must be had in the county where the crime was committed. This court has recognized on many occasions that the venue of an offense is jurisdictional, and it must be proved to establish the jurisdiction of the court. However, it is not necessary to prove the jurisdictional facts of venue by specific question and answer that the offense occurred in the particular county. It may be established by other competent evidence showing the offense was committed within the jurisdiction of the court. (State v. Jones, 204 Kan. 719, 466 P. 2d 283.) In this case, the record is replete with testimony to the effect that the crime charged took place in defendant’s trailer, located in Ulm’s Trailer Court in North Topeka.
The question was one for the jury. The place where the offense occurred is a question of fact just as any other question to be determined by the jury. (State v. Jones, supra.) Considering the record presented in this case we cannot say the evidence upon which the jury based its finding was insufficient to sustain a finding that the offense was committed in Shawnee County.
Having thoroughly reviewed the record and the various contentions asserted by the defendant, we hold defendant has failed to make it affirmatively appear the trial court committed reversible error with respect to any of the points asserted on appeal.
The judgment is affirmed.
Prager, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This was an action brought by the appellee, Active Die & Mold, Inc., against the appellant, Elliott G. Bloch, for the unpaid balance on an open account in the principal sum of $4,000. The appellant counter-claimed against Active Die & Mold, Inc. (Active Die), and commenced another action against Ron Fedak, the president of said corporation, the other appellee, both claims being based upon alleged promissory fraud.
Exhibit A attached to Active Dies petition indicated the open account was for services rendered on February 21, 1969, in the amount of $4,560. The Exhibit showed the appellant paid $560 on the account on June 2, 1969, leaving a balance due of $4,000.
The appellant’s answer and counterclaim asserted two affirmative defenses to Active Die’s petition:
“3. That the defendant pleads the following two (2) Affirmative Defenses to plaintiff’s Petition:
“a. The debt alleged by plaintiff is discharged by reason of
“1.) the substitution of another agreement; and/or
“2.) the delivery of a note to the plaintiff that operates to discharge the alleged debt by defendant. Attached hereto is a copy of defendant’s Exhibt 1 which represents the aforesaid ‘agreement’ and/or ‘note’.”
The appellant’s “Exhibit 1” just referred to is of paramount importance in the resolution of the issues on appeal, and is set out in full:
“Mr. Ronald Fedak, President
Active Die & Mold Co.
2308 West Belmont Avenue
Chicago, Illinois 60618
“Dear Mr. Fedak:
“This is pursuant to our telephone conversation at 11:00 A. M. this morning [March 17, 1970].
“During this conversation we agreed that my client, Mr. Elliott G. Bloch, would pay $50.00 per month to you until his debt of $4,000.00 to you for services rendered has been paid. Mr. Bloch has also agreed to pay interest on the unpaid balance of this debt at the rate of eight per cent (8%) per annum beginning on June 2, 1969, when Mr. Bloch paid to you $560.00 on your Invoice No. 948 in the amount of $4560.00, leaving an unpaid balance of $4,000.00.
“During this same conversation you agreed that as soon as you received your first payment of $50.00, which is enclosed herewith, you would notify Dun & Bradstreet of your settlement of this matter with Mr. Bloch. You also agreed that Mr. Bloch may fall as much as two or three months behind before you would again act on this matter to press for payment, this is because you know that Mr. Bloch’s money does not come in on a regular basis. You also agreed to permit Mr. Bloch to pay off the balance of the debt and the remaining interest as soon as he has the funds to do so or if he should desire to do so.
“If you have any queries concerning this matter, please do not hesitate to contact the undersigned. I am pleased to have the opportunity to do business with a person of your skill and aptitude.
“Very truly yours,
/s/ R. W. Mayes
R. W. Mayes
“RWM/rm
“$50.00 check enclosed.”
The appellant contends the letter of March 17, 1970, was the confirmation of an oral agrément between him and appellee Fedak, as president of Active Die, whereby they agreed the appellant would pay Active Die $50 per month on the account plus interest from June 2, 1969, on the unpaid balance at the rate of 8 percent per annum.
Bloch mailed a total of three checks in the amount of $50 each to Active Die, but none of those checks were negotiated by the company.
The appellees filed motions for summary judgment, and the record shows counsel for the parties stipulated that no additional evidence existed or would be proffered for trial on the issues involved on summary judgment.
The district court, upon consideration of the pleadings, exhibits, and the depositions of Fedak and R. W. Mayes, the appellant’s counsel, sustained the motions for summary judgment in the consolidated actions, and held the appellees were entitled to judgment as a matter of law because the record as submitted did not show sufficient consideration in law or benefit to the creditor. From that ruling the appellant perfected this appeal.
We think the only contention that need be considered is whether the district court properly sustained the motions for summary judgment upon the theory the record as submitted did not show sufficient consideration.
An open account is a contractual obligation, once proven. (Spencer v. Sowers, 118 Kan. 259, 243 Pac. 972; Sheldon Grain & Feed Co. v. Schuetz, 207 Kan. 108, 483 P. 2d 1033.) As such, the same may be modified by subsequent agreement of the parties, either by expressed assent or implied from the conduct of the parties, provided the agreement changing the contractual obligation is based upon independent consideration. (Insurance Co. v. Benner, 78 Kan. 511, 97 Pac. 438; Frogge v. Belford, 168 Kan. 74, 211 P. 2d 49; Bailey v. Norton, 178 Kan. 104, 283 P. 2d 400; Gibbs v. Erbert, 198 Kan. 403, 424 P. 2d 276.)
The appellees argue that the agreement, if any, faded because the purported time and manner of payment were so indefinite as to provide inadequate consideration for the forbearance. The position is based upon a portion of the disputed letter to the effect the appellees would permit Bloch “to pay off the balance of the debt and the remaining interest as soon as he has funds to do so or if he should desire to do so.” In support thereof, the appellees cite decisions from foreign jurisdictions stating the general rule of law that if a debtor neither promises to pay the debt until a fixed time certain in the future, nor to pay interest until that time, there is no consideration to support the creditor’s promise to extend the time of payment. (Dickson v. Kilgore State Bank, 257 S. W. 867; Kirby v. American State Bank, 18 S. W. 2d 599; Tsesmelis v. Sinton State Bank, 53 S. W. 2d 461; Van de Ven v. Overlook Mining and Develop’t Co., 146 Wash. 332, 262 Pac. 981.) The theory is that the payee forbears nothing and the payor assumes no additional obligation — the payor may pay at any time and ihe obligation stands, insofar as the payor is concerned, exactly as it stood prior to the extension.
While this court has no quarrel with the law as cited by the appellees, we disagree with the district court’s conclusion the letter of March 17, 1970, fails for lack of consideration as a matter of law.
The general rule concerning the payment of interest as sufficient consideration to sustain an extension of time for payment in a contract is found in 17 Am. Jur. 2d, Contracts, Sec. 478, p. 948:
“A lawful agreement to pay a higher rate of interest than that borne by a debt in the absence of such agreement is a sufficient consideration for an extension of time. Likewise, an agreement to pay interest in a different manner than that provided in the contract — such as an agreement to pay monthly instead of annually, or semiannually instead of annually — is a sufficient consideration for an extension. And an agreement to stay execution on a judgment for a year, provided the judgment debtor pays the accruing interest for the whole period to the expiration of such year and does not appeal from an award of arbitrators, rests upon a sufficient consideration.
“The giving of a lawful note for the interest due, which note itself bears interest, thereby in effect providing for compound interest, is a sufficient consideration for the promise of the creditor to extend the time of payment. . . .” (Emphasis supplied.)
K. S. A. 16-201 establishes the lawful rate of interest at 6 percent per annum to be allowed to creditors when no rate of interest has been agreed upon by the parties. Taking the matters in the confirmation letter as true, which we are bound to do, the appellant agreed to pay interest at the rate of 8 percent per annum on the unpaid balance and to pay $50 each month on the principal. That was 2 percent per annum more than the appellee would be entitled to recover under K. S. A. 16-201. Moreover, the appellant agreed to pay the 8 percent interest retroactively from the date of the alleged novation (March 17,1970) to June 2,1969, the date he made the payment of $560 on the account. Standing alone, the agreement to pay an additional 2 percent interest would be sufficient as a matter of law to constitute valuable consideration. Furthermore, coupling the additional 2 percent interest with the agreement to pay interest retroactively to June 2, 1969, clearly constitutes consideration sufficient to justify forbearance.
Lastly, and taking the second paragraph of the purported agreement in its total context, it is clear the language relied upon by the appellee that, “[y]ou also agreed to permit Mr. Bloch to pay off the balance of the debt and the remaining interest as soon as he has the funds to do so or if he should desire to do so,” was merely secondary to the appellant’s basic obligation to pay $50 each month on the unpaid balance with 8 percent interest thereon. The sentence prior to the language relied upon by the appellees indicates that Active Die would permit the appellant to fall behind several months before it would press for payment. That, in itself, lends further support to the argument the disputed clause was for purposes of acceleration and flexibility, and secondary to the basic obligation found in the first paragraph of the alleged agreement obligating the appellant to pay $50 each month.
The record is meager concerning the matter whether the consolidated actions were to be tried to a jury. The appellant’s amended petition against Fedak shows a jury trial was granted, and the pretrial order sustaining the motions for summary judgment reflects that a jury could not reasonably conclude the parties substituted one agreement for another. Upon that basis, we conclude a jury trial was contemplated by the parties. This court is of the opinion that the terms of the letter purportedly confirming an oral agreement between the parties as to the existence of a novation of the original obligation on the open account, presents a genuine issue of material fact, which should be submitted to a jury together with the remaining issues in the case.
Before concluding, the court is of the opinion that counsel for the appellant, Mr. Ronald W. Mayes, should give attention to Disciplinary Rule DR 5-102 of the Code of Professional Responsibility adopted by this court relating to withdrawing as counsel when the lawyer becomes a witness, and govern himself accordingly.
The judgment is reversed and the district court is directed to proceed to trial on the merits consistent with this opinion.
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The opinion of the court was delivered by
Owsley, J.:
Criminal charges were filed in the district court of Allen County, Kansas, against each of three defendants for violating gambling laws. Following a trial to the court the district court ruled as a matter of law that the conduct of the defendants as set forth in the informations was not a violation of K. S. A. 1971 Supp. 21-4307 and 21-4303 in view of K. S. A. 1971 Supp. 21-4302 (1) (d), (2), (3), and (4). The state appeals.
The criminal charges originated as a result of a gambling raid conducted on June 18, 1971, in Iola, Kansas. On that date agents of the attorney general’s office entered the Iola American Legion Club. Upon entering the agents observed two persons, defendants Hutton and Culver, in close proximity to five slot machines. Defendant Hutton appeared to be taking money from the coin return on one of the machines. Defendant Hutton admitted on direct examination that she had been playing the machines earlier in the evening. Culver, according to testimony of a special agent of the attorney general’s office, had his hand on the handle of one of the machines, and released it after the agent entered the room. Culver testified that at the time the agents entered the room he was not playing the machines, but admitted that he had played the slot machines earlier.
Defendant Nelson was the acting club manager of the American Legion club. He admitted that he had custody of the slot machines and the keys to them, and that he had set up the slot machines that were identified during the testimony. It was testified that the funds from the above machines went to the club treasury. It was stipulated that the club was a Class A club, licensee of the Alcoholic Beverage Control Agency, and that the club was exempt from the Federal Income Tax under the provisions of the Internal Revenue Act.
Defendant Nelson was charged with possession of a gambling device, contrary to K. S. A. 1971 Supp. 21-4307. Defendants Hutton and Culver were charged with gambling in violation with K. S. A. 1971 Supp. 21-4303.
The trial court held as a matter of law that the conduct disclosed by the evidence and alleged as violation of the criminal laws of the state did not constitute a crime because of the so-called “bingo” exception to the definition of gambling adopted by the 1971 Kansas legislature.
The parties agree there is only one issue presented in this appeal and that is whether the phrase “bingo and games of comparable characteristics,” as it is used in K. S. A. 1971 Supp. 21-4302, includes slot machines.
The new Kansas Criminal Code (Chapter 180, 1969 Session Laws) revised the laws of this state as to gambling. The former statutes, K. S. A. 21-915 through 21-936, and 21-1501 through 21-1510 approached gambling by prohibiting specific activities. The approach of the new code attempts to define prohibited conduct in a general way. The new code also amended the procedural provisions which were contained in the former law.
In the 1971 session the legislature amended the gambling laws in Chapter 111, Section 1 (now K. S. A. 1971 Supp. 21-4302). Portions of the amendment pertinent to this appeal are as follows:
“(1) A “bet’ is a bargain in which the parties agree that, dependent upon chance, one stands to win or lose something of value specified in the agreement. A bet does not include:
“(d) Any bingo game or a game of chance with comparable characteristics by or for participants conducted by an organization exempt from tax under paragraphs (3), (4), (7), (8) and (10) of subsection (c) of section 501 of the internal revenue code of 1954, as amended, if no part of the gross receipts derived from such activity inures to the benefit of any private shareholder, member or employee of such organization, except as compensation for actual expenses incurred by him in the conduct of such activity and provided that such game is conducted or operated by the officers, employees or members of such organization without compensation therefor other than that to which the officer, employee or member is entitled for the performance of his regular duties, and not by agreement or contract with any other person or organization for which any consideration or compensation is provided.
“(2) A lottery’ is an enterprise wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance.
“(3) .............
“As used in this subsection, the term ‘consideration’ shall not include sums of money paid by or for participants in any bingo game or a game of chance with comparable characteristics as defined by subsection (d) of this section and it shall be conclusively presumed that such sums paid by or for said participants were intended by said participants to be for the benefit of the organizations described in subsection (d) of this section for the use of such organizations in furthering the purposes of such organizations, as set forth in paragraphs (3), (4), (7), (8) and (10) of subsection (c) of section 501 of the internal revenue code of 1954, as amended.”
A slot machine is designed and utilized as a gambling device. We held in State, ex rel., v. Myers, 152 Kan. 52, 102 P. 2d 1028, that a slot machine is a gambling device per se. Other states have found slot machines to be lotteries. (State v. Brotherhood, of Friends, [Wash. 1952], 247 P. 2d 787.) The judicial council notes appended to K. S. A. 1971 Supp. 21-4302 state a “slot machine is probably the most familiar type of gambling device.”
Bingo may provide fun and amusement to adults and children without prizes and without consideration. Bingo as used in the above statutes, however, contemplates payment for the right to play and contemplates the award of prizes. This is apparent since the statute provides “consideration shall not include sums of money paid” to take part in a bingo game and provides the money paid is for the benefit of tax exempt organizations. As we refer to bingo in this opinion it is labeled in accord with the statutes as a game for which a consideration is paid for the right to participate.
The defendants contend these statutes should be strictly construed against the state and when so construed a slot machine falls within the exception. Defendants also contend the burden of proof is on the state and the record in this case does not furnish a basis for convicting the defendants without engaging in speculation and extending judicial notice beyond its legal concept. Defendants further argue that bingo and slot machines are comparable in all characteristics except that bingo involves group participation while the use of a slot machine is a lone wolf operation. They further argue that it is not reasonable to believe the legislature could have intended to discriminate against the individual who chooses to gamble by himself rather than to join a group of fellow gamblers.
The state contends that slot machines are not games of chance “with comparable characteristics”; hence, they are not exempt from the penal provisions of the gambling laws. The state’s argument is a combination of distinguishing the characteristics of bingo and slot machines, and determining the legislative intent. The state points out that the trial court concluded slot machines have the same characteristics- as bingo since each involves the elements of consideration, prize and chance. The state argues that the import of the trial court’s conclusion would allow any form of gambling by exempt organizations since all lotteries have the characteristics of consideration, prize and chance.
The parties have limited their argument to the issue above stated. In discussing the distinctions and similarities of bingo and slot machines, both parties refer to the definition of lotteries as judicially determined by this court. The assertions of each intermingle and intertwine the elements of a lottery. This is unavoidable since all judicial declarations of this court relating to gambling are focused on and centered around the definition of a lottery. We are exposed to the same difficulty as the litigants. We cannot intelligently dispose of this litigation without considering and discussing the elements of a lottery. In doing so, we cannot avoid making a determination of the constitutionality of the so-called “bingo law.”
In Keplinger v. Kansas City., 122 Kan. 158, 251 Pac. 413, we approved the following language from 12 C. J. 780:
“. . . ■ ‘It is a well-settled principle that the constitutionality of a statute will not be determined in any case, unless such determination is absolutely necessary in order to determine the merits of the suit in which the constitutionality of such statute has been drawn in question.’” (p. 164.)
In Clewell v. School District., 115 Kan. 176, 222 Pac. 74, we held:
“. . . We cannot undertake to determine a constitutional question unless it is necessary to a decision of the questions involved and the determination of the constitutionality of a statute is imperatively required. . . .” (p. 177.)
We held in State, ex rel., v. School District, 163 Kan. 650, 185 P. 2d 677:
“. . . [T]his court ought not to consider the constitutionality of the statute in any particular not necessary to a decision and that under the facts of the cause, there is no such necessity.” (Syl. f 8.)
We held in Board of County Commissioners v. Brown, 183 Kan. 19, 325 P. 2d 382:
“Acts of the legislature are presumed to be constitutional and valid and no challenge thereof should be entertained on appeal to the Supreme Court unless the particular constitutional provision alleged to be violated, or the particular controlling record to prove the invalidity, has been alleged in the pleadings and presented to the lower court.” (Syl. f 2.)
The wisdom of the decisions in Keplinger and Clewell that a situation might arise justifying an unrequested inquiry into the constitutionality of a statute is manifested by the facts presented in this case.
Article 15, Section 3 of the Kansas Constitution provides: “Lotteries and the sale of lottery tickets are forever prohibited.”
Although this constitutional provision was undoubtedly borrowed from states previously admitted to statehood, it is apparent that the framers of the constitution of this state conscientiously determined that prohibiting lotteries forever was a method of promoting a sound basis for the welfare and growth of this state. Since its adoption, many efforts have been made by persons and organizations to circumvent this constitutional provision. Such efforts have generally been made for profit, seeking to elicit money from those who cannot refrain from the instinctive weakness of humanity to gamble.
This court has steadfastly adhered to the constitutional provision by striking down such efforts. (The State ex rel. v. Mercantile Association, 45 Kan. 351, 25 Pac. 984, [distribution of prizes by chance]; In re Smith, Petitioner, 54 Kan. 702, 39 Pac. 707, [sale of lottery tickets]; The State, ex rel. v. Fair Association, 89 Kan. 238, 131 Pac. 626, [bets on horse races]; State, ex rel., v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P. 2d 929, [theater bank night]; City of Wichita v. Stevens, 167 Kan. 408, 207 P. 2d 386, [punch boards]; State v. Brown, 173 Kan. 166, 244 P. 2d 1190, [punchboards]; State, ex rel., v. Bissing, 178 Kan. 111, 283 P. 2d 418, [parimutuel betting on dog races].)
It has been firmly established from these cases as the law of this state that a lottery has three essential elements; namely, (1) consideration, (2) prize, and (3) chance.
In State, ex rel., v. Highwood Service, Inc., 205 Kan. 821, 473 P. 2d 97, we held that the turning of a dial of a television set to a certain program which awarded prizes did not constitute “consideration” within the meaning of K. S. A. 21-1501 (repealed L. 1969, ch. 180) and Article 15, Section 3 of the Kansas Constitution. We also stated at page 825:
“But while the constitutional ban against lotteries may be self-executing, it is not self-defining. That function is judicial in nature, devolving upon the courts. . . .”
The essential difference between a constitution and a statute is that a constitution usually states general principles or policies, and establishes a foundation of law and government, whereas a statute must provide the details of the subject of the statute. A constitution, unlike a statute, is intended not merely to meet existing conditions, but to govern future contingencies.
Although a constitution is usually a declaration of principles of fundamental law, many of its provisions being only commands to the legislature to enact laws to carry out the purposes of the framers of the constitution, it is entirely within the power of those who establish and adopt the constitution to make any of its provisions self-executing. Our constitution put a ban on lotteries and the sale of lottery tickets in plain, unambiguous terms and emphasized the intent of the framers by the use of the language “shall be forever prohibited in this state.” Prohibitory provisions in a constitution are self-executing to the extent that anything done in violation of them is void.
It is the function and duty of this court to define constitutional provisions. The definition should achieve a consistency so that it shall not be taken to mean one thing at one time and another thing at another time. It is the nature of the judicial process that the construction becomes equally as controlling upon the legislature of the state as the provisions of the constitution itself. (16 C. J. S. Constitutional Law, § 13.) Any attempt by the legislature to obliterate the constitution so construed by the court is unconstitutional legislation and void. Whenever the legislature enacts laws prohibited by judicially construed constitutional provisions, it is the duty of the courts to strike down such laws.
The legislature, by enacting the statutes in question, attempted to declare that “consideration” shall not include money paid to participate in a bingo game. The legislature, in effect, sought to remove “consideration” as one of the elements of a lottery. In so doing, the legislature exceeded its constitutional power. The constitution must be interpreted and given effect as the paramount law of the state, according to the spirit and intent of its framers. A legislative enactment in evasion of the terms of the constitution, as properly interpreted by the courts and frustrating its general and clearly expressed or necessarily implied purpose, is clearly void.
The fact that the statute prohibits a profit to any private shareholder, member or employee of an organization exempt from tax, does not create immunity for an enterprise which violates the provisions of the constitution. We cannot insert into our constitution an exception that the framers failed to make. Their reasoning could have been in accord with Harriman Institute of Social R. v. Carrie Tingley C. C. Hospital, 43 N. M. 1, 84 P. 2d 1088 (1938), which said:
“Now the gambling spirit feeds itself with as much relish upon a charity lottery as upon any other kind. If the average person be consumed with a desire to take a chance and get something for nothing, it matters not to him whether the promoter makes a profit or that the profit goes to charity. Indeed, if it does go to charity, his participation wears a cloak of piety otherwise denied it. He thus may be persuaded to purchase tickets oftener and in larger volume because operated in the name of charity or religion. The point we seek to make is that widespread participation in a charity lottery is just as baneful in its effect upon tire public as widespread participation in any other kind of lottery. And we think it will be conceded, indeed we feel this court has said as much, that our lottery statutes sought to prevent widespread participation in any kind of lottery.” (pp. 6, 7.)
It is immaterial whether slot machines have “comparable characteristics” to bingo since bingo in the context of the statutes falls before the mandate of the constitution. Statutory provisions which attempt to legalize bingo or the use and possession of slot machines are inconsistent with our constitution.
It is not our proper function to express any opinion with respect to the moral aspects of either operators or players of bingo. We recognize that many respectable persons look upon bingo as an innocent and harmless recreation, and the benefits of bingo are frequently applied to worthwhile religious and charitable purposes.
In view of the foregoing it is our holding that the bingo exception to the gambling laws passed by the 1971 legislature is unconstitutional and void. We refer to K. S. A. 1971 Supp. 21-4302 (1) (d), and the third paragraph of K. S. A. 1971 Supp. 21-4302 ( 3).
Appeal sustained. | [
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|
The opinion of the court was delivered by
Foth, C.:
On the night of July 31, 1971, Captain Leo Regier and Detective Al Helfferich of the Manhattan Police Department were on stakeout at the municipal parking lot at Third and Houston Streets. For some time the parking meter collections from that lot had been coming up short and the officers were there to find out why.
They had come on duty at 9:30 p. m., and were scheduled for a four hour shift. Their vantage point was a second story window over Green’s Book Store, from which they had a clear view of the well lighted lot across the alley. Their vigil was going into its second hour when their attention was drawn to a car parking at the northwest comer of the lot. Its occupants were two men and a woman with a small child.
It was several minutes before one of the men got out of the car, went to the trunk and brought back a bottle. The three adults partook, and the bottle was replaced in the trunk. Then, before the unseen but watching eyes of the officers, one of the men approached the nearest meter and placed his hands upon it, one about where the lock would be and the other slightly below. He shortly removed them and returned to his companions who were leaning against the car.
The trio — or quartet, if one includes the baby — went in a group to the next meter east, but there just lounged about while shoppers passed by in the adjacent alley. Next, they set course to the west edge of the lot and thence due south to the meter at the southwest corner. There they surrounded the meter while the two-hand grip was repeated; this was followed by a movement to the large straw handbag carried by the woman. The next meter east received the same careful attention, but as they approached the third in the line they encountered passers-by. At this point the baby was tossed and passed from hand to hand while the group moved on to the far east end of the lot. The meter there received the familiar treatment —one hand at the lock and one below, motion to the handbag — as did the next four meters coming back to the west.
By now the watching officers had seen and heard enough — Detective Helfferich had heard the clinking of coins — and they moved out of their observation post. Helfferich went into the bookstore and telephoned for help, while Captain Regier went out onto the lot to make the arrest. At his approach the woman and one of the men moved away toward their car, leaving the meter-gripper standing alone by a meter. Regier identified himself and placed the abandoned one under arrest. He was found to be Thomas RuSsell Crow.
Crow was shepherded over to the car where by now his companions were seated in tire front seat. They were identified as Heidi Sue Garcia, who was sitting in the middle of the front seat, and Vernon Eugene Bell, who sat next to the right door. The baby was Mrs. Garcia’s.
The summoned help arrived about this time, in the form of Lieutenant Alvin Johnson and seven other Manhattan police officers. Crow was frisked by the right rear fender. Bell was asked to step out and he, too, was frisked. Mrs. Garcia was asked for her handbag. This she demonstrated to be completely empty — no money, no billfold, no Kleenex, no comb, no cosmetics, no letters — nothing.
Captain Regier briefed Lieutenant Johnson on the events of the evening and his observations. He had noticed an open bag or satchel on the floor on the driver’s side and asked Lieutenant Johnson to see about it. Johnson peered in with a flashlight and observed the bag. It was partially unzipped, and he could see change in the bag. Inquiry revealed that Bell owned the car, but he refused to consent to its search. Johnson nevertheless removed the bag. Mrs. Garcia protested, saying it was her baby’s piggy bank. Asked if it contained quarters she said, “Why, sure.” Crow told her at this point not to say anything — that they would make bond and leave.
A later count of the contents revealed $32.00 in dimes, $27.75 in nickels, and thirty-nine pennies — all coins commonly recognized as “parking meter money.” No quarters were found.
From the officer’s point of view the only missing element in their case was a key or other instrument for opening the meters, for none showed pry marks or other evidence of tampering. The search of Crow and Bell had turned up no key, nor did an intensive search of the area. It occurred to them that Crow might have managed to slip it into the crevice between the car’s trunk and the fender by which he had been searched. Lieutenant Johnson secured the keys from the ignition and opened the trunk. No key was found, but among the usual car-trunk miscellany was a small bag containing a set of files, a soldering iron, and, most significantly, a number of money wrappers of the type used by banks. These were designed for rolls of dimes, nickels and pennies.
The result was a misdemeanor charge of theft against each of the three adults. (The baby’s fate is unclear.) They were jointly tried to an agreed upon six man jury, and each was convicted. Bell and Mrs. 'Garcia have appealed; Crow did not appear in person, was tried in absentia, and is not a party to this appeal.
Appellants’ first and primary claim of error relates to the admission into evidence of the two bags and their contents taken from the car. They made a pretrial motion to suppress and renewed their objection at trial, claiming both bags were the result of an illegal search and seizure.
As to the bag taken from the front seat, we note that it was observed without entering both by Captain Regier and Lieutenant Johnson. As to it there was thus no “search,” even though Johnson used a flashlight. State v. Karney, 208 Kan. 677, 494 P. 2d 1204, Syl. ¶ 6; State v. Frizzell, 207 Kan. 393, 485 P. 2d 160; State v. McMillin, 206 Kan. 3, 476 P. 2d 612. The following discussion, then, is directed largely to the bag containing money wrappers taken from the trunk. Appellants’ argument is that a warrantless search can only be justified if made in strict compliance with our only statute dealing with the subject, K. S. A. 1971 Supp. 22-2501:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of (a) Protecting the officer from attack; (f>) Preventing the person from escaping; or (c) Discovering the fruits, instrumentalities, or evidence of the crime.”
The area permitted to be searched by the statute is that within the arrested person’s “immediate presence.” Chimel v. California, 395 U. S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034, puts a gloss on that term of constitutional dimensions. The court there analyzed the traditional justification for a “search incident to arrest,” and formulated limitations on its scope, in the following terms:
“. . . When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” (395 U. S. at 762-3. Emphasis added.)
What Chimel suggests, especially in the italicized language above, is that some of our past language in automobile search and seizure cases may have been too sweeping; in cases where the search must be justified solely as incident to• an arrest, it is doubtful that officers may search a locked car trunk which is and has for some time before the arrest been clearly beyond the reach of the arrestee. Cf., State v. Blood, 190 Kan. 812, 818, 378 P. 2d 548; State v. Caldrone, 205 Kan. 828, 473 P. 2d 66; State v. Hunt, 198 Kan. 222, 424 P. 2d 571; State v. Wood, 197 Kan. 241, 416 P. 2d 729.
In each of these cases, however, whether articulated in the opinion or not, there existed an independent ground for searching the trunk; that ground was “probable cause” to believe that it contained the fruits, instrumentalities or evidence of a crime. The Chimel court itself took express note that such probable cause may justify a warrantless search:
“Our bolding today is of course entirely consistent with the recognized principle that, assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants ‘where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought/ Carroll v. United States, 267 U. S. 132, 153 [69 L. Ed. 543, 551, 45 S. Ct. 280, 39 A. L. R. 790]; see Brinegar v. United States, 338 U. S. 160 [93 L. Ed. 1879, 69 S. Ct. 1302].” (Chimel v. California, supra, ¶. n. 9.)
This theme was later developed and definitively expounded in Chambers v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975. We recently noted the import of that case in State v. Undorf, 210 Kan. 1, 7, 499 P. 2d 1105:
“. . . [I]n Chambers v. Maroney, supra, the court made clear that the same knowledge providing probable cause for an arrest may also furnish probable cause for a search. Referring to Carroll v. United States, supra, the Court said (399 U. S. at 49):
“ ‘The Court also noted that the search of an auto on probable cause proceeds on a theory wholly different from that justifying the search incident to an arrest:
“ ‘ “The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” 267 U. S., at 158-159/
“The upshot is that if there is probable cause to search a car such search need not be ‘incidental to’ or ‘contemporaneous with’ an arrest, but may be made wholly independently of any arrest at all.”
We have applied this principle and expressly approved vehicle searches made on probable cause in such cases as State v. Blood, supra; State v. Frizzell, 207 Kan. 393, 485 P. 2d 160; State v. Robinson, 203 Kan. 304, 454 P. 2d 527; State v. Ayres, 203 Kan. 376, 454 P. 2d 534; Metcalf v. State, 199 Kan. 800, 433 P. 2d 450; and State v. Brown, 198 Kan. 473, 426 P. 2d 129.
Appellants recognize the principle, and concede that the officers here had probable cause to search the car. They seek to avoid the force of these authorities by arguing that the legislature has now addressed itself to the subject of warrantless searches, and by enacting K. S. A. 1971 Supp. 22-2501 has occupied the field. The constitution, they say, may permit warrantless searches of vehicles both as “incident to an arrest” and on “probable cause,” but the Kansas legislature has specifically authorized only the first. They would have us draw from this a negative inference that the legislature intended to forbid all other types of warrantless searches, even though constitutionally permissible. Under this theory presumably even a warrantless search made with the willing consent of the owner of the car or premises searched would be forbidden, for such a search is likewise not specifically sanctioned by the statute.
We are unable to reach such a drastic conclusion from the simple legislative act of codifying the developing body of case law relating to searches incident to an arrest. As the draftsmen of the section noted, “It states a proposition of general law.” (Judicial Council note, 1969.) The same source indicates that the section was taken from an Illinois statute. The courts of that state have assumed without discussion that the presence of the statute in their code does not prevent their officers from making other types of constitutionally permissible searches. See e. g., The People v. Georgev, 38 Ill. 2d 165, 230 N. E. 2d 851; The People v. Robinson, 40 Ill. 2d 453, 240 N. E. 2d 630; People v. Herbert, 131 Ill. App. 2nd 518, 268 N. E. 2d 205; People v. Ricketson, 129 Ill. App. 2d 365, 264 N. E. 2d 220.
Appellants analogize this case to Aiuppa v. United States, 338 F. 2d 146 (10th Cir. 1964) where it was held the federal game management agents went beyond the scope of their statutory authority in searching a car trunk on probable cause. That case turned, however, on the fact that the agents were “special enforcement agents,” enforcing only a limited area of the law, and with only such law enforcement powers as were specifically delegated by the applicable federal statutes. (Id., p. 148.) We are not dealing here with law enforcement officers of such limited authority but with general police officers. For that reason we do not find Aiuppa persuasive.
We believe our own statute was intended only to furnish guidelines to officers and courts as to one method of making a valid, warrantless search. We hold that it does not prohibit other warrantless searches which comport with the constitutional requirement of reasonableness.
In this case, it is not clear that the trunk was inaccessible to the arrestees. Crow had been leaning on a rear fender when searched, and there had been several minutes when the activities of Bell and Mrs. Garcia were not carefully observed. This was the time, before Lieutenant Johnson and company arrived, when Captain Regier arrested Crow while the other two made their way to the car. The elusive key could not be found, and the officers suspected that it had been secreted in the trunk. Since the arrestees had had an opportunity to do the secreting, we cannot say that a search of the trunk was not properly incident to the arrest.
It follows that the search of the automobile made here, made either as incident to the arrest or on conceded probable cause, was not unreasonable. Its fruits were therefore properly admitted into evidence.
Appellants raise one other issue, and that is the admissibility of Crow’s statement to Mrs. Garcia that she shouldn’t say anything to the officers. In this court it is claimed that this was a claim of constitutional privilege which the state was using as substantive evidence of the defendants’ guilt, contrary to the admonition of Miranda v. Arizona, 384 U. S. 436, f. n. 37, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3rd 974; and our own holding in State v. Bowman, 204 Kan. 234, 461 P. 2d 735; and State v. Dearman, 198 Kan. 44, 422 P. 2d 573. Cf. Griffin v. California, 380 U. S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; Chapman v. California, 386 U. S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.
As we read the record this claim is being made here for the first time. The state sought to introduce testimony as to Crow’s statement through two witnesses. The first attempt, which was through Captain Regier, was unsuccessful. The exchange was as follows:
“Q. Did you hear any conversation among the three whatsoever?
“A. The only conversation I heard is when—
[Defense Counsel]: Your Honor, I object to any testimony concerning statements by Mr. Crow since he is not present.
The Court: Well, you may state whether or not what you were about to relate was spoken by either of the defendants who are present or spoken by anyone in their presence and hearing.
“A. Mrs. Garcia started to say something and Mr. Crow stopped her by making a statement.
The Court: Go ahead.
“Q. What conversation did you hear?
“A. The conversation, I didn’t hear what she said after Mr. Crow said be quiet.
[Defense Counsel]: I object to anything that Mr. Crow said since he is not present.”
The state abandoned the effort at this point, and tried again through Lieutenant Johnson:
“Q. Did you hear the conversation between Capt. Regier and her concerning the type of money in the bag?
“A. I heard Capt. Regier inquire of her whether there were quarters in the bag. I didn’t hear her answer, I heard Mr. Crow advise Mrs. Garcia not to say anything.
[Defense Counsel]: I object to anything Mr. Crow said.
The Court: State whether or not the statement you heard Mr. Crow make was in the presence of Bell and Garcia.
The Witness: That is correct. We were standing on the south side of the vehicle, all three defendants were and the baby were on the south side of the vehicle standing up near the area of the vehicle and they were all three present and within hearing distance.
The Court: The objection is overruled. You may proceed.
“Q. [By the prosecutor] What did you hear Mr. Crow say?
“A. Mr. Crow advised Mrs. Garcia not to say anything, that they would get bond and leave.”
As may be seen, the two objections to Regier’s testimony and the one to Johnson’s were all based on the fact that Crow was not present at the trial, i. e., that the testimony was hearsay. That objection was not good because Crow’s “statement” was not offered “to prove the truth of the matter stated,” and was therefore not hearsay. (K. S. A. 60-460.) Nowhere does it appear that an objection was made in the trial court on constitutional grounds, and the constitutional question is therefore not properly before us. K. S. A. 60-404; State v. Darling, 208 Kan. 469, 493 P. 2d 216, Syl. ¶ 5; State v. Karney, 208 Kan. 677, 494 P. 2d 1204, Syl. ¶ 3.
If the question were here we would be hard put to find error, much less prejudicial error. The officers were recounting in narrative fashion the circumstances of the offense and the arrest, and the statement made by Crow was an event constituting part of the transaction. The situation is akin to that in Fagundes v. United States, 340 F. 2d 673 (1st Cir. 1965), described by the court as follows (p. 676):
“The arresting officer in the course of describing Fagundes’s arrest testified that when he flushed Fagundes out of Mrs. Poulos’s closet he announced ‘you are under arrest in connection with the armed robbery of the Brookline Trust Company.’ The officer then added that he asked Fagundes what he had to say, to which Fagundes replied that he did not want to say anything but wanted to see a lawyer. This testimony related directly to the appellant’s arrest and was descriptive of that event. It was not even specifically objected to. Its admission was not error.”
Here there was an objection, but as noted, only on hearsay grounds. In addition, the appellants were themselves asserting no right of silence. Rather, it was Crow who was advising Mrs. Garcia as to the course he thought she ought to take. Any reaction of appellants to this advice, one way or another, does not appear to have been communicated to the jury. Under these circumstances, and in view of the convincing evidence of guilt recited above, we cannot believe that this testimony contributed to the verdict against them. Hence, if its admission was error, it was “harmless beyond a reasonable doubt.” (Chapman v. California, supra, 386 U. S. at 24. See, also, Harrington v. California, 395 U. S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726.)
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant was convicted of burglarizing the farm home of Rill Walts located in Doniphan County, and of stealing a number of valuable items belonging to Mr. Walts including a stereo, color television set, record player, binoculars, typewriter, guns and other assorted property. The burglary occurred somewhere between the hours of 12:30 and 2:30 p. m. October 4, 1970. Two other parties, Danny Wolfe and Bill Ledinski, were charged with the same offenses.
Acting on information received by a member of the St. Joseph, Missouri police department, four officers visited and searched the defendant’s apartment at 1217/1 Prospect early the following morning. This search failed to reveal any of the stolen property. In the afternoon of the same day St. Joseph police officers, accompanied by an agent of the Kansas Bureau of Investigation, searched a vacant shed at 1215 Prospect, after receiving information that the defendant and one Danny Wolfe had been seen carrying some things into the shed. This search, which was made without a warrant, was more productive than the first and turned up several of the pilfered valuables.
Evidence was introduced at the trial that on the evening of September 5 — the day following the burglary — the defendant, Danny Wolfe and a man by the name of Riley, sold four of the guns stolen from the Walts residence to a man from Iowa, the transaction taking place at a St. Joseph tavern. The price paid for the guns was $200.
Eight points are raised on appeal, but we shall confine ourselves to only the second, the admission of hearsay testimony, which we believe will dispose of this appeal. This particular claim of error results from the admission of testimony given by two police officers concerning statements allegedly made to them by Wolfe and Ledinski. The statements were given to the officers out of the defendant’s presence, and the testimony in regard thereto was admitted over his strenuous objection.
One of the officers testified that Danny Wolfe stated that he and Ronnie Oliphant had come over to Wathena, Kansas, (shown to be about 1/2 miles from the Walts residence) in Bill Ledinski’s car, that they stopped at the Keg Tavern and that he and Ronnie went into the tavern and drank a bottle of beer while Bill remained in the car.
A second officer testified he interviewed Ledinski on March 1, 1971, at the jail in St. Joseph and there was a discussion that Oliphant and Wolfe had possibly used his, Ledinski’s, car; that Ledinski suspected they may have used it.
The testimony of each of the two officers was clearly hearsay. Hearsay is defined in Black’s Law Dictionary, Fourth Edition, p. 852, as:
“Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say. . . .”
It is elementary in the law that hearsay evidence is not admissible, subject to certain well-defined exceptions. This was made clear long ago in this state by what was said by this court in State v. Keefe, 54 Kan. 197, 38 Pac. 302, where the court said:
“. . . Nothing can be plainer, or better established in the law of evidence, than that one man shall not be bound by mere declarations of another, in his absence, and with which he is in no manner connected, and has in no manner assented to. . . .” (p. 202.)
See, also, State v. Hewes, 60 Kan. 765, 57 Pac. 959, where the foregoing passage is quoted at page 768.
But we need not look to our early case law to ascertain that hearsay is ordinarily not admissible, for the rule is now spelled out in K. S. A. 60-460 which, as a rule of evidence, was incorporated into our Code of Civil Procedure. This statute deals with the subject of hearsay and provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:”
Twenty-nine exceptions thereupon follow, as noted in subsections (a) to (cc) inclusive, but none are applicable to the situation before us.
The state seeks to justify the admission of the testimony on two grounds: First, it argues that both Wolfe and Ledinski were present at the trial and thus were available for cross-examination by the defendant. Thus it is said the testimony of the officers comes within the purview of subsection (a) of K. S. A. 60-460, which excepts from the operation of the hearsay rule:
“A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness:”
The state’s argument in this respect is faulty, for neither witness, in our opinion, was available for cross-examination. Both Wolfe and Ledinski, while testifying in an out-of-court hearing, repeatedly claimed their privilege against self-incrimination and stated they would not answer questions on cross-examination. The privilege having been claimed, neither Wolfe nor Ledinski was available for cross-examination within the contemplation of 60-460 (a), for the definition found in K. S. A. 60-459 (g) is directly applicable to the situation at hand. The latter subsection reads:
“‘Unavailable as a witness’ includes situations where the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his statement is relevant, . . .”
This court has judicially stated that a witness who has claimed his privilege is just as unavailable as one whose physical presence cannot be procured. (State v. Terry, 202 Kan. 599, 603, 451 P. 2d 211.) See, also, State v. Austin, 209 Kan. 4, 495 P. 2d 960, which touches the subject of privilege in a somewhat similar context.
The second ground advanced by the state to support the court’s ruling is that the officers’ testimony was offered only to prove that the statements were made — not to establish the truth thereof. It may be conceded that where an extrajudicial statement is offered merely to show the fact of its having been made, it is admissible when testified to by a person who heard it. (1 Wharton’s Criminal Evidence, 12th Edition, Anderson, § 257 Verbal Acts Distinguished, p. 588.) The principle is discussed by Professor Wigmore in his work, 6 Wigmore on Evidence, 3d Edition, § 1766, pp. 177, 178, in these words:
“. . . The essence of the Hearsay rule is the distinction between the testimonial (or assertive) use of human utterances and their non-testimonial use.
“The theory of the Hearsay rule (ante, § 1361) is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not apply. The utterance is then merely not obnoxious to that rule. It may or may not be received, according as it has any relevancy in the case; but if it is not received, this is in no way due to the Hearsay rule.”
The good professor goes on to group the utterances exempted from the rule under three heads: those material to the case as part of the issue, those which are verbal parts of an act, and those used' circumstantially as giving rise to an indirect inference but not as assertion to prove the matter asserted.
We believe the statements attributed by the officers to Wolfe and Ledinski fit none of the three exempt categories listed by Wigmore. The extrajudicial statement of Wolfe, in particular, had probative or testimonial value on the issue of guilt and was highly incriminating, for it would place Oliphant and his co-defendants, none of whom resided in Doniphan County, within a mile and a half of the Walts home on the very day it was ransacked. In our opinion the utterances were testimonial in character despite the state’s protestations that they were not being offered with that in mind. If not offered as tending to establish the defendant’s presence in the community as a circumstance bearing on guilt, it would seem highly improbable that the state would have insisted on offering the statements at all. The Kansas cases cited by the state in support of its position on admissibility are distinguishable.
By constitutional mandate, both state and federal, the defendant in a criminal case is entitled to be confronted by the witnesses against him. Pointer v. Texas, 380 U. S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065; Douglas v. Alabama, 380 U. S. 415, 13 L. Ed. 2d 934, 85 S. Ct. 1074; State v. Hooks, 202 Kan. 68, 446 P. 2d 770.
In 5 Wigmore on Evidence, 3d Edition, § 1395, p. 123, it is said:
“The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.”
Wolfe and Ledinski were not available for purposes of cross-examination; they were claiming their constitutional rights against self-incrimination; and the defendant was thus deprived of an opportunity to cross-examine either of them.
The state points to the statement made by the county attorney at the close of its case that he would agree that any statement made by Wolfe or Ledinski to the officers be excluded as evidence. This magnanimous offer came, of course, after the hearsay evidence was already before the jury and, in our opinion, could hardly repair the damage already done. This was the view taken by defense counsel when the court asked if he wanted the jury instructed not to consider the officers’ testimony. Counsel replied he did not, because he was afraid it would call more attention to their testimony. We are inclined to agree. In Bruton v. United States, 391 U. S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, the trial court instructed that the confession of a co-defendant offered in a joint trial could be considered only as against him who made it and not against Mr. Bruton. The supreme court, in reversing the case, said it could not “accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination.” (p. 137.)
Finally, it is said the hearsay testimony was merely cumulative and therefore not prejudicial. We do not view it so lightly. It is true that the mother of. Mr. Walts testified she had seen Wolfe and the defendant in the Keg Tavern between one and two o’clock, September 4, but hers was the only testimony placing the defendant in the vicinity except for the extrajudicial statements attributed to his alleged fellow accomplices. Evidence of Oliphant’s presence in the area of the crimes was not so overwhelming that we can say the proscribed testimony had no effect on the jury’s deliberations or that the jury .did not give it consideration in arriving at its verdict.
The conclusion we have reached with respect to the admission of hearsay testimony makes it unnecessary for us to consider the other points which are raised.
The judgment is reversed with directions to grant the defendant a new trial. | [
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The opinion of the court was delivered by
Schroedeb, J.:
This is an appeal by the defendant, Garrett Jack Ogden, from a conviction of the crimes of burglary and larceny of the Quality Poultry Company in Sedgwick County, Kansas; burglary and larceny of Johnson Trucks Company in Sedgwick County, Kansas; and uttering and forgery. The appellant was acquitted by the jury on charges of burglary and larceny of the Dobson Roofing Company in Sedgwick County, Kansas, and possession of burglary tools.
Numerous trial errors are asserted for reversal on appeal.
Testimony given at the trial showed that the appellant, Gary Belden .and Jerry Lee Owen were involved in a forged check cashing ring. Both Belden and Owen testified on behalf of the state.
On the 11th day of February, 1970, a search warrant was issued and the appellant’s residence at 1350 South Gordon in Wichita, Sedgwick County, Kansas, was searched by the police. A typewriter, a check protector and an envelope with “J” letters and “J. A. Johnson” written on it, and other items not considered evidence, were found as a result of the search.
Richard Dobson, a roofing contractor doing business under the name Dobson Roofing Company, testified that some time during the late evening of January 29, 1970, or the early morning of January 30, 1970, an entry was made into his building and a typewriter and check protector were missing upon his return to the building for work on January 30, 1970. (Dobson testified James Bell worked for him in November and December, 1969. Bell was apprehended at the scene of a burglary involving Quality Poultry Company at 2:00 o’clock a. m. February 5, 1970.)
Mr. J. R. Johnson testified that he was in the moving and trucking business and that he left his business, Johnson Trucks, around 9:30 p. m. on January 29th and arrived back at the building around 6:30 a. m. on January 30, 1970. Mr. Johnson testified that the back glass of the restroom had been broken out and a television set, fourteen (14) blank checks and numerous cancelled checks were missing. All of the checks had “Johnson Trucks” printed on them. Two of those checks were identified by Mr. Johnson as being state’s Exhibit No. 9 and state’s Exhibit No. 10. Mr. Johnson testified he did not sign these two checks and that he gave neither the appellant nor Jerry Owen permission to sign any checks whatsoever. These two checks purported to bear the signature of J. A. Johnson and were made payable to Jerry Owen.
The appellant, Garrett Jack Ogden, was the nephew of Mr. Johnson. Mr. Johnson’s wife and the appellant’s mother are sisters. On the afternoon before the burglary the appellant accompanied his mother to visit Mrs. Johnson at the Johnson Trucks place of business. The appellant was in the office and had looked around. He had previously worked for Mr. Johnson in the trucking business.
Jerry Lee Owen testified for the state that he had lost his identification after being at the appellant’s residence on January 28, 1970. Mr. Owen stated that on the following day he had asked the appellant about this loss and the appellant told him the billfold had not been found. However, on January 30, 1970, the appellant came to Owen’s home and asked him to cash some checks. The appellant informed him Gary Belden had been cashing the checks using Jerry Lee Owen’s identification, but that Belden had been apprehended by the police. Owen testified the appellant then drove him to various places within the city where he had intended to pass checks on the Johnson Trucking Company. Owen testified he was the individual who had cashed state’s Exhibit No. 9 on January 30, 1970. He stated he had received 50% of the money for cashing a total of five checks.
Gary Belden testified the appellant had asked him on January 29, 1970, if he wished to make some money, and the appellant advised him that he would explain the following day how this would be done. Belden stated he saw checks at the appellant’s home as well as a check protector and a typewriter. The checks had the name of Johnson Trucks and Jerry L. Owen upon them. He stated he used Jerry L. Owen’s identification which was given to him by the appellant to pass the checks, and that the appellant told him the money would be split five ways. Belden was apprehended at a store attempting to pass one of the checks.
Numerous law enforcement officials and other persons testified making identification of persons and exhibits. The state’s evidence adduced at the trial and presented in the record was overwhelming and amply supports the jury’s finding of the appellant’s guilt on each of the counts upon which he was convicted. In his brief the appellant abandons the point alleging that the verdict is contrary to the evidence.
The appellant contends his motion for a directed verdict should have been granted. He argues all the charges pertain to crimes committed by a principal, whereas, he asserts the evidence produced at trial only tended to incriminate him as an accessory. This argument has no merit. (See K. S. A. 21-105.)
K. S. A. 62-1016 provides: “Any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner is if he were a principal.” This statute was in effect at all times material herein and is the applicable law. In State v. Irwin, 133 Kan. 509, 511, 300 Pac. 1098, the court stated:
“The law of this state is established, both by statute and the decisions of this court, that one who counsels, aids or abets in the commission of any offense, may be charged, tried and convicted in the same manner as if he were principal.”
The appellant contends the trial court erred in giving Instruction No. 12 to the jury. It reads:
“The possession of stolen property, recently after the theft, throws upon the possessor thereof the burden of explaining such possession. If the same is unexplained such possession may be sufficient of itself to warrant a conviction of the crimes of forgery and larceny from a person. However, such possession, to warrant a conviction thereof, must have been so recent after the time of the commission of the forgery and larceny from a person as to render it morally certain that such possession could not have changed hands since the commission of such offenses.
“However, before this presumption can be applied you first must find beyond a reasonable doubt that the defendant did have possession of said property as outlined herein.”
The appellant contends the instruction is erroneous because the possession was not shown to be recent and it was not shown that he had exclusive possession of the stolen property. In State v. Sharp, 174 Kan. 672, 675, 258 P. 2d 306, the court said:
“. . . the words recent’ and ‘exclusive’ are relative terms, and the contention for a literal application of their definitions cannot be sustained. . . .”
In the instant case the burglary was shown to have occurred on the night of January 29, or the early morning of January 30. Testimony established that the appellant was in possession of the stolen items on the 30th day of January.
In State v. Wilson, 198 Kan. 532, 426 P. 2d 288, the court held the passing of a stolen check four days after the burglary and larceny occurred was within the “shortly after” provision of the rule, and warranted the giving of an instruction on the unexplained possession of recently stolen property.
The appellant also contends recent possession of stolen property “is evidence only going to the theft of that property and not forgery.” This argument would have some merit if it were not for the fact that we are concerned with stolen blank checks that also were forged.
In State v. Brown, 145 Kan. 247, 251, 65 P. 2d 333, the court said:
“. . . Was it necessary to prove the manual execution of the false signature by the defendant? Or does the possession of the forged instrument without a reasonable explanation raise a presumption of guilt? We think it does, and that the instruction was proper under the evidence in this case.”
The court in State v. Earley, 119 Kan. 446, 448, 239 Pac. 981, held in Syl. ¶ 3:
“Possession of a forged instrument by one who utters or seek to utter it, or otherwise to realize on it or profit by it, without a reasonable explanation of how the possessor acquired it, warrants an inference that the possessor himself committed the forgery or was a guilty accessory to its commission.”
By Instruction Ncr. 21 the jury was instructed precisely in accordance with the rule above stated in Earley.
It would have been better practice to limit Instruction No. 12 to the unexplained possession of recently stolen property, but when all of the instructions given are viewed as a whole, we cannot say the appellant was prejudiced by the giving of Instruction No. 12. It is apparent the trial court was merely attempting to combine two proper instructions.
The appellant next contends that the jury returned inconsistent verdicts in finding the defendant guilty of the burglary and larceny of the Quality Poultry Company, while it acquitted him on the companion charge of possession of burglary tools. The appellant asserts this should be grounds for a new trial.
The evidence disclosed the items upon which the state relied for a conviction regarding the possession of burglary tools were: two screw drivers, a claw hammer and a piece of chain. The screw drivers were found outside the Quality Poultry Company building near a walk-in freezer chute. Officers arrived while the burglary was in progress and one of the suspects was apprehended in the budding. The appellant was identified when he was seen leaving the premises. Among the items found outside the building, which were dropped in haste by the burglars, were three books of blank business checks, the property of Quality Poultry Company. A blue 1961 Oldsmobile four door, identified as belonging to the appellant, was parked 68 paces to the east of the building. The motor of the Oldsmobile was still warm when the officers investigated. They found the claw hammer on front seat and the chain and some other items inside the Oldsmobile.
Apparently the jurors felt these commonly used hand tools were not burglary tools and acquitted the appellant on this charge, but they did find him guilty of the burglary and larceny of the Quality Poultry Company.
These two offenses are independent. One can commit a burglary without burglary tools, and one can be guilty of the possession of burglary tools without committing a burglary. Each constitutes a separate and distinct offense.
A similar situation was before the court in State v. Murphy, 145 Kan. 242, 65 P. 2d 342: There the jury found the appellant guilty of uttering and returned a verdict of acquittal on forgery under the particular facts. In the opinion the court said:
“. . . By statute in this state, although both forgery of a check and uttering of a check are classified as forgery in the second degree, yet each constitutes a separate and distinct offense. (G. S. 1935, 21-608, 21-609.) Assuming, under the facts in this particular case, the verdict was inconsistent, does that fact require a reversal of the conviction for uttering? Lawyers and courts have frequently observed conduct of juries which was completely devoid of logic. The stories of these varied experiences and observations, reduced to writing, would indeed provide most interesting reading. Supposing, however, in the instant case, the jury was derelict in its duty and should also have found appellant guilty of forgery, would that fact justify this court in following the example of the jury and thus clear appellant on all counts? This court has held otherwise in cases where two parts of a verdict were utterly irreconcilable. (State v. Brizendine, 114 Kan. 699, 200 Pac. 174; State v. Brundige, 114 Kan. 849, 200 Pac. 1039; State v. Hund, 115 Kan. 475, 222 Pac. 766; State v. Stewart, 120 Kan. 516, 243 Pac. 1057; State v. Jackson, 121 Kan. 711, 249 Pac. 688; State v. Axley, 121 Kan. 881, 250 Pac. 284.) The conviction cannot be reversed on the ground of inconsistency.” (p. 243.)
During closing arguments the prosecutor attempted to imply to the jury that it was inconsistent for the appellant to defend on the ground of insanity as well as defending on the ground that he did not commit the alleged crimes. The appellant contends this constituted prejudicial misconduct sufficient to require a reversal of his convictions. While it may be conceded the prosecutor’s comment was improper, on the facts in this case it did not constitute prejudicial error when considered with the court’s admonition to the jury. The trial court admonished the jury to completely disregard the statement and ordered that it be stricken from the record. The court went on to inform the jury that a plea of insanity gives rise to no inference of guilt.
On the facts in this case the inconsistent nature of a plea of insanity, wherein the appellant seeks excuse for his conduct and asserts a defense on the ground that he did not commit the alleged crimes, was first raised by counsel for the appellant in his voir dire examination of the jurors. In addressing the jury he said:
“. . . Now, would you have any feeling against the defendant who made consistent but different defenses? In other words, if Mr. Ogden’s-defense —says not only, 1 did not commit these crimes,’ but if he also says that ‘according to law I couldn’t be charged with any crimes anyway, because, according to the law, I’m insane,’ would you have any feeling against a defendant who took a position like that?”
Under these circumstances we cannot say the appellant was prejudiced.
The appellant placed Dr. Luis Ibarra, M. D., a psychiatrist, on the witness stand to testify in his behalf. The doctor revealed the appellant suffered hallucinations. As a result of his examination and testing he said the appellant was suffering mainly from a personality disorder, but at the time the testing was done he did not show any psychosis.
On cross-examination Dr. Ibarra testified:
“The defendant’s main problem was that he was suffering from a personality disorder and a person like this has more tendency than the average person to get into conflict with society. It is possible that the hallucination was caused by the LSD. My observation was that when he was admitted the defendant was disorganized to a mild degree, he believed that the hallucinations were true. When Ogden was admitted to the hospital he was confined to the lock up section. A person suffering from a personality disorder cannot assess situations correctly.”
He further testified on cross-examination a laboratory test was performed on a sample of the appellant’s blood and it showed a blood level for LSD.
The appellant next contends the evidence obtained in the search and seizure of his house should not have been introduced because of a defective affidavit, and because premises were searched which were not authorized by the search warrant.
At the search made pursuant to the search warrant, the following items were seized: A Smith-Corona typewriter, a Paymaster check protector, an envelope on which there was writing, and some identification owned by Jerry Lee Owen. Photographs of these exhibits in the interior of the house were taken and introduced over objection. The appellant argues the application and affidavit to support the application were defective, relying upon Aguilar v. Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509.
The effect of the United States Supreme Court decisions is recognized in State v. Hart, 200 Kan. 153, 434 P. 2d 999, where the court said:
“We are mindful of what has been said in Nathanson v. United States, 290 U. S. 41, 78 L. Ed. 159, 54 S. Ct. 11; Giordenello v. United States, 357 U. S. 480, 2 L. Ed. 2d 1503, 78 S. Ct. 1245; and Aguilar v. Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509; and we recognize the precedent established by those cases. The import of those decisions, ... is that before a search warrant may validly be issued, there must have been placed before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists; . . . mere affirmations oT belief or suspicion are not enough; . . . there must be sufficient affirmative allegations as to the affiant’s personal knowledge or his knowledge concerning his informant, or as to the informant’s personal knowledge of the things about which the informant spoke, to provide a rational basis upon which the magistrate can make a judicious determination of probable cause.” (p. 162.)
The application for a search warrant properly described the place to be searched as “a white frame residence located at 1350 S. Gordon, Wichita, Sedgwick County, Kansas,” and listed the items of contraband, including “28 blank checks and copies printed ‘Johnson Trucks’ on Fourth National Bank of Wichita.” The body of the affidavit reads:
“George Lux, of lawful age being first duly sworn on oath, states:
“Affiant states that he is a detective for the Wichita Police Department; that he knows from talking to J. R. Johnson that a burglary of Johnson Trucks took place on January 29, 1970, and the checks and television set listed in this application were stolen.
“Affiant further states that Gary K. Belden was arrested by Officer Morris after attempting to cash a forged check drawn on the account of Johnson Trucks at Food City on January 30, 1970, said check having been stolen from Johnson Trucks in the said burglary; that the said Gary K. Belden told him the typewriter, checks and a check protector listed in this application are located at the residence of Garrett Jack Ogden, 1350 S. Gordon, Wichita, Kansas.
"Further affiant saith not."
He argues there was no showing as to the basis for Beldens purported statement that “. . . The typewriter, the checks and the check protector listed in this application are located at the residence of Garrett Jack Ogden.” This point has no merit whatever. The affidavit specifies that Detective Lux knew of his own knowledge of the burglary of Johnson Trucks; that checks had been taken in the burglary; that Belden was apprehended attempting to pass one of these checks and had told him where the checks, check protector and typewriter were located. The affidavit need not pinpoint every source of an affiant’s belief, so long as it discloses a sufficient basis on which a finding of probable cause can be made. (State v. Hart, supra.) If the apparent facts set out in the affidavit for a search warrant are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause to justify the issuance of a search warrant. (Dumbra v. United States, 268 U. S. 435, 69 L. Ed. 1032, 45 S. Ct. 546.)
In United States v. Long, 449 F. 2d 288, the court held statements of an admitted bank robbery participant to an FBI agent, that on a given date one of the alleged bank robbers had in his possession on premises to be searched a black suitcase containing part of the money, established probable cause for a search of such premises, despite the contention that the admitted accomplice could not be classified as a credible person.
The appellant further argues the search warrant authorized the search of “a white frame residence” — not a search of adjoining grounds, yet the envelope was taken from the trash can at the rear of the yard. United States v. Long, supra, also holds that the search of a trash barrel located just outside of the building described in the warrant was properly considered as a part of the “premises” to be searched. (See, also Walker v. United States, 225 F. 2d 447, and Martin v. United States, 155 F. 2d 503.)
Under no theory raised by the appellant was there an illegal search of the property involved and the trial court did not err in admitting the evidence seized.
The appellant next contends the witness Gary Belden should have been allowed to testify about the status of his parole or his knowledge of any crime investigation involving him; and that the witness Jerry Lee Owen should have been allowed to testify as to whether he had any personal interest in testifying against the appellant. The appellant argues Belden’s testimony was very damaging to him, and counsel sought to impeach his testimony by eliciting testimony regarding his motivation for testifying; specifically, that if he did not testify favorably for the prosecution, (1) he feared prosecution from other charges, or (2) he feared that parole previously granted would be revoked. The court sustained the prosecution’s objection to this line of questioning.
The record does not confirm the appellant’s blatant charges. Owen answered directly when asked whether it was true that he did not expect the prosecutor’s office to press prosecution against him. (Owen had not been tried when he testified.) Owen answered, “I don’t know what they will do.” When further cross-examination was attempted along the same line, the court sustained the state’s objection on the ground that the witness had already stated his opinion.
Cross-examination of Belden to determine his motivation for testifying was limited in scope. Belden admitted talking to the prosecuting attorney at various times. He was then asked whether he was aware that his parole officer could revoke his parole with the approval of the court. He answered in the affirmative, and the prosecuting attorney’s objection to the form of the question was sustained. The line of cross-examination was then changed, and Belden was asked whether the police questioned him about other checks that had not been mentioned in the course of his testimony. He answered, “No, sir, they haven’t.” The same question was then repeated and the court sustained the prosecution’s objection.
Counsel for the appellant, out of the jury’s hearing, then pressed the court for permission to pursue the possibility of parole revocation concerning Belden. — “Whether he fears that his parole might be revoked if he doesn’t testify.” The court ruled counsel was making an improper inference, that the regular standard form of conditions in a parole concerned only violation of any law. Counsel for the appellant did not press inquiry for impeachment purposes on cross-examination further.
Limitations on cross-examination are discretionary with the trial court, and the exercise of that discretion will be overturned only upon a showing of abuse which is clearly prejudicial. (State v. Zeilinger, 147 Kan. 707, 78 P. 2d 845; State v. Stewart, 179 Kan. 445, 296 P. 2d 1071; State v. Mitchell, 181 Kan. 193, 310 P. 2d 1063.)
It is not shown the trial court abused the exercise of its power of discretion in curtailing cross-examination on the record here presented.
The appellant contends Laws 1969, eh. 180 (K. S. A. 1971 Supp. 21-4504), should have been followed in sentencing him, thereby leaving it to the discretion of the trial court whether to apply the habitual criminal act, or, in the alternative, the county attorney was guilty of arbitrary and capricious conduct in applying that act to the appellant.
The sentencing occurred on July 1, 1970, the date on which the repeal of K. S. A. 21-107a became effective, and the date on which K. S. A. 1971 Supp. 21-4504 became effective.
K. S. A. 1971 Supp. 21-4504 ( 3) provides:
“Subsections (1) and (2) of this section shall be applicable only to those convicted criminals initially sentenced [for offenses committed] after the effective date of this act. In the event that any defendant has been convicted prior to the effective date of this act and sentenced under K. S. A. 21-107a and thereafter is for any reason returned to the court imposing the initial sentence, he shall be resentenced under the provisions of K. S. A. 2I-107a as it existed prior to July 1, 1970.” (Emphasis supplied and words in brackets added.)
A literal reading of the above section of the statute, without studying subsections 1 and 2, would indicate the appellant’s point has merit. Subsections 1 and 2 clearly make reference to sentences for crimes committed under the new criminal code, which applies only to offenses committed after the effective date of the act. But further clarification is indicated by K. S. A. 1971 Supp. 21-3102, § (4) which provides:
“This code has no application to crimes committed prior to its effective date. A crime is committed prior to the effective date of the code if any of the essential elements of the crime as then defined occurred before that date. Prosecutions for prior crimes shall be governed, prosecuted and punished under the laws existing at the time such crimes were committed.” (Emphasis supplied. )
It is apparent, after careful study of the above sections of the statutes and references, that the trial court correctly sentenced the appellant under K. S. A. 21-107a, and it was discretionary with the prosecuting attorney to invoke it. The legislature might have clarified the section (21-4504 [3], supra) by inserting the words indicated in brackets. This section of the statute (K. S. A. 1971 Supp. 21-4504 [3]) should be and is construed as if the words in brackets had been inserted.
Finally, the appellant contends the trial court 'erred in not allowing him to appear personally at the hearing on his motion for probation from the confinement portion of the sentence.
The appellant had two prior felony convictions and he was referred to the Diagnostic Center for evaluation, examination and report within the statutory time. The trial court had a report on the appellant from the institution when probation was denied. The appellant cites no authority in point to support his assertion and we know of none. The appellant acknowledges the existing Kansas law is that a person convicted of crime and sentenced need not be present at his hearing for probation.
No reversible error having been shown, the judgment of the lower court is afiBrmed. | [
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Per Curiam:
By his will, executed March 1, 1966, the testator, William H. Vreeland, left all of his estate to his wife, Kathryn A. Vreeland, with no provisions for a beneficiary in the event of his wife’s prior death. Contrary to expectations, Mrs. Vreeland, who was a second wife and much younger, died first on June 30, 1967. Mr. Vreeland’s death followed in a few days.
The appellee, W. Frank Wilson, is the son of Kathryn A. Vreeland by a prior marriage and his mother’s only heir, after her husband. Her will is identical to her husband’s, leaving everything to him but in her case, had Mr. Vreeland died first, her estate would have gone to her son by intestate succession, under the law at that time. Her will was executed May 29, 1959.
In the case of Mr. Vreeland’s will, as the law existed prior to the adoption in 1970 of K. S. A. 1971 Supp. 59-615, his estate, since his wife predeceased him, would go if the will were to be taken at face value, to the appellants as his heirs. His will is not ambiguous. It simply leaves the estate by operation of law, subject to disposition by intestate succession because of the prior death of Mrs. Vreeland. The appellee, W. Frank Wilson, stepson of the testator would take no part of his stepfather’s estate as he was not named in the will and was not an heir at law.
The appellee, in the courts below, successfully sought to avoid being eliminated from participation in his mother’s and stepfather’s estates by claiming that the Vreelands had a contract between them to make mutual wills which would leave all of the property to him upon the death of the survivor, and that Mr. Vreeland failed to make a will that would carry out his part of the bargain. Wilson claims by virtue of the alleged contract.
Mrs. Vreeland, as the evidence shows, made her will in 1959 presumably in keeping with the agreement. Mr. Vreeland didn’t get around to it until 1966, constantly insisting that it wasn’t necessary because his younger wife would outlive him. When he made his will, which was simply a copy of his wife’s, it was inadequate as it turned out, to carry out the terms of the alleged agreement.
The district court found that there was such an agreement between Mr. and Mrs. Vreeland and enforced the agreement by assignment of the testator’s estate to the stepson (appellee) W. Frank Wilson, for whose benefit the agreement was made.
We have reviewed the evidence as disclosed by the appellate record and find that it is not disputed and is sufficient to support the findings and judgment of the trial court. The judgment is consistent with the decisions of this court in In re Estate of Wert, 165 Kan. 49, 193 P. 2d 253 (on rehearing see 166 Kan. 159, 199 P. 2d 793); and In re Estate of Billinger, 208 Kan. 327, 491 P. 2d 924.
Appellants raise questions as to the admissibility of evidence. We find no error as they all qualify as admissions, declarations of intent, or contractual utterances.
The right of the appellee to seek enforcement of the agreement for his benefit is not questioned. See Maddock v. Riggs, 106 Kan. 808, 190 Pac. 12; Holmes v. Kalbach, 173 Kan. 736, 252 P. 2d 603; 17 Am. Jur. 2d, Contracts, § 302.
The judgment is affirmed. | [
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Per Curiam:
This is an original action in mandamus in which the plaintiff seeks to establish that despite losing the primary election of August 1, 1972, by two votes, he is nevertheless the lawful Republican nominee for representative to the Kansas legislature from the twentieth district. The state officials named as defendants are members of the state board of canvassers (K. S. A. 1971 Supp. 25-3201). The secretary of state, auditor of state and attorney general are also charged with the duty of considering objections to certificates of nomination filed under K. S. A. 1971 Supp. 25-308. The individual defendant, John T. Brauchi, is the successful candidate for the nomination sought by the plaintiff.
Plaintiff’s claim is based on the fact that Brauchi’s name appeared on the primary ballot as “John T. (Tony) Brauchi, M.D.” His contention is that the initials “M.D.” should not have been appended to Brauchi’s name on the ballot and that their presence gave Brauchi an unfair advantage. The result, he claims, is to invalidate all votes cast for Brauchi, leaving as the only valid votes those which were cast for plaintiff. He asks this court to so declare, and to order by way of mandamus that the state board of canvassers reconvene, recount the votes with regard to those cast for Brauchi, and declare and certify plaintiff to be the nominee. He would also have us enjoin the secretary of state from placing Brauchi’s name on the ballot in the November general election, order her to cancel Brauchi’s certificate of nomination and order her to issue such a certificate to plaintiff.
If this were an action timely brought to enjoin the appearance of “M.D.” on the ballot there would be much merit in plaintiff’s cause. Our election laws speak repeatedly of placing the “names” of candidates on the ballot; e.q., K. S. A. 1971 Supp. 25-205, 25-206, 25-209, 25-211, 25-212, 25-213. There is no provision for adding titles, degrees, or other symbols of accomplishment, occupation or qualification, either by way of prefix or suffix. Those courts which have considered the question have uniformly held that “M.D.” is no part of a person’s “name”, and that under statutes like ours a candidate is not entitled to have any such descriptive matter appear on the ballot with his name. The only exception recognized is where there is such similarity between the names of candidates that some sort of description is necessary to identify them for the electors. See, State, ex rel. Whetsel v. Murphy, 122 Ohio St. 620, 174 N.E. 252; State v. Crowe, (Mo. App.) 382 S.W. 2d 38; People ex rel. Richter v. Telford, 103 Ill. App. 2d 132, 242 N.E. 2d 464; and cases cited in the foregoing. We would agree, and would assume that Kansas election officers will take steps to insure that such descriptions do not hereafter appear unnecessarily on ballots in this state.
Plaintiff, however, filed this action on September 7, 1972, after the primary was over, and defendants urge that he was guilty of laches. “This court has long recognized the doctrine of laches as a defense to mandamus.” (State, ex rel., v. Paulsen, 204 Kan. 857, 863, 465 P. 2d 982.)
Brauchi filed his declaration of candidacy on June 14, 1972, indicating the manner in which his name was to appear on the ballot. On June 26, 1972, the state board of canvassers met pursuant to K. S. A. 1971 Supp. 25-209 to examine the declarations and “determine whether or not such papers have complied with law.” There was no objection to the form of Brauchi’s declaration, and it was in due course certified to the Johnson County election commissioner. That official included Brauchi’s name, with the objectionable appendage, in the official list of candidates published three times pursuant to the same statute, the first publication being on June 28, 1972. A copy of the list, as officially published, was sent to plaintiff on June 30, 1972, as required by K. S. A. 1971 Supp. 25-211. In a covering letter he was instructed to check both his own name and that of his opponent for “any misspellings, errors, omissions.” He made no response to this communication.
Plaintiff thus passed up two opportunities to raise his present complaint at times when an administrative remedy could easily have been afforded without disrupting the electoral process. Instead, the first time plaintiff made known any objection to the form of the primary ballot was on August 23, 1972, when he filed objections under K. S. A. 1972 Supp. 25-308, to the results which had been determined by the state board of canvassers. In the court’s view this was too late. As the Ohio court said in State, ex rel., Whetsel v. Murphy, supra, 122 Ohio St. at 621, 174 N.E. at 253:
“[T]he primary election has already been held, and no objection was made to the descriptive matter, although it appears that by the exercise of due diligence an effective objection could have been made in time to have prevented the descriptive matter being placed upon the ballot. The primary election having been closed and the result declared the court will not order tile choice of the people at the primary election to be disregarded.”
Accordingly, judgment must be for the defendants.
It is so ordered. | [
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The opinion for the court was delivered by
Harman, C.:
Appellant Donald W. Weyer was convicted by a jury of the offense of murder in the second degree as defined in K. S. A. 1971 Supp. 21-3402. His motion for new trial was overruled, he was sentenced to confinement pursuant to K. S. A. 1971 Supp. 21-4501 (b) and he now appeals.
Jerome L. Gronquist, aged nineteen, was the victim of the alleged homicide which occurred near Waterville, Kansas, during the early morning hours of November 22,1970.
The assertions of error necessary to be considered for proper disposition of this appeal require but brief outline of the tragic events revealed at trial.
Appellant Weyer, aged twenty-one, who was married but separated from his wife, had several times sought permission from Gleed Gronquist to go with his seventeen year old daughter Nancy, who was then living on her fathers farm near Blue Rapids. This permission was denied. The last time Gleed accompanied his denial by grabbing appellant by the coat and shaking him. When Nancy Gronquist reached her eighteenth birthday she promptly left the family abode and moved into an apartment in Blue Rapids.
On the evening of November 21, 1970, appellant, his mother and stepfather, and Nancy attended a country western dance at a cafe in Greenleaf. Jerome and Larry Gronquist, sons of Gleed, were at the dance and during its course several times shoved appellant and Nancy, who were dancing together, and also shoved appellant’s mother and stepfather. They directed epithets toward their sister Nancy. After further name-calling, threats against appellant and shoving by the Gronquist brothers appellant’s mother and stepfather summoned law enforcement officers. First the city marshal came and later the sheriff of Washington county arrived at the scene. After the Gronquist group had been gone from the dance for a while the sheriff told appellant’s group they could leave, which they did, departing about 1:00 a. m. Appellant and his stepfather each had a pistol which they had left in the glove compartment of their vehicle during the dance. Appellant evidently was in the habit of carrying a pistol. Upon commencing the return trip appellant removed the pistols from the glove compartment, gave his stepfather the one owned by him and placed his own pistol on the dashboard. Nancy was seated in the front seat beside appellant who drove, and appellant’s mother and stepfather sat in the rear.
Meanwhile Larry had driven back to the Gronquist farm home and about midnight awakened his father Gleed and informed him of Nancy’s presence at the dance with appellant. Larry and his father in one car and Jerome and a friend in another car then proceeded toward Greenleaf in order to intercept appellant en route to return Nancy to Blue Rapids. This interception occurred in the town of Waterville, where the two Gronquist vehicles turned around in pursuit of the vehicle driven eastward by appellant. Just outside Waterville Jerome passed appellant, slammed on his brakes and stopped his vehicle immediately in front of that driven by appellant. At the same time Larry Gronquist drove his vehicle up closely behind appellant’s car.
Jerome approached appellant’s vehicle from the front while Larry and his father, each on a different side, approached it from the rear. From this point on, as revealed by a fragmented record, the testimony differed as to just what occurred. On behalf of the prosecution evidence was received from which it could fairly be said that the second of six shots fired from appellant’s pistol during the en suing melee was the one which ended Jerome’s life, being one fired by appellant at a time when Jerome was about five feet away from appellant’s automobile. At some point in the affray Larry secured appellant’s pistol and threw it across the road.
Appellant and his mother testified for the defense. Appellant’s version was that he first fired two warning shots through the open window of his vehicle, the first toward the rear where Larry was still sitting in his car and the second for Jerome’s benefit — aimed between him and the vehicle he had just left; appellant told Larry to stop Jerome; the Gronquists rushed him and appellant then commenced struggling with them during which time other shots were fired from the gun, three or four or maybe more, he couldn’t be sure how many; after the warning shots Jerome first rushed him, threatening him and coming in through the right car window; Jerome’s head, arms and upper body were inside the car as he struggled for appellant’s gun; someone grabbed appellant’s neck and nearly tore his head off and he was knocked down in the seat; he sustained a bullet wound in the leg; thereafter he saw Jerome lying in the road and he then drove off toward Blue Rapids. Appellant denied shooting Jerome or that he had any intention of shooting him when he fired the warning shot.
Appellant’s mother testified that after they stopped on the highway near Waterville Larry and Jerome approached appellant’s car on the driver’s side. She saw appellant fire one shot to the rear and she heard the second shot; after the second shot Jerome came on into appellant’s car from his waist up. Larry had his arm inside the car as far as he could get it; the Gronquists were fighting for appellant’s gun; Gleed grabbed appellant by the neck and pulled him down in the seat; other shots were fired, one of which struck her in the finger and the knee while she was struggling with Gleed; the third shot went through the roof of the car and the fourth hit Larry in the leg as he “hollered”; she saw appellant’s hands after the fourth shot sounded and they were empty. The gun possessed by appellant’s stepfather was never fired.
Appellant first specifies as error the trial court’s failure to instruct the jury as to the lesser included offense of involuntary manslaughter.
By way of background it may be stated that at trial up through rendition of the verdict appellant was represented by court-appointed counsel, Mr. John R. Elmborg. Evidently at some time after his motion for new trial had been filed and overruled but prior to sentencing appellant became dissatisfied with Mr. Elmborg and he was permitted to withdraw, present counsel was appointed and appellant was sentenced. The record of trial reveals the following colloquy concerning an instruction on involuntary manslaughter:
“Mr. Elmborg: I would like to propose that an instruction be given to the offense of involuntary manslaughter, your Honor.
“The Court: Involuntary manslaughter is defined by our new code and provides it is the unlawful killing of a human being without malice, which is done unintentionally in the commission of an unlawful act not amounting to a felony or in the commission of an unlawful act in an unlawful or wanton manner. The general rule as to instructions, if I understand the rule properly, is that the defendant in a criminal case is entitled to an instruction on any theory or defense which is supported by any substantive evidence regardless of how weak this evidence might be. Mr. Sprouse, do you have any feeling about this?
“Mr. Sprouse: Your Honor, the State would have no objection to the Court including such an instruction.
“Mr. Elmborg: (Interrupting) Your Honor, I think this is a point that I would like to discuss with my client before making the decision as to whether or not this should be requested.
“The Court: Very well, I can get this case for you and you might want to read it. We’ll go off the record if you want to.
“(Whereupon there is a discussion had off the record.)
“Mr. Elmborg: Your Honor, I have discussed the question of whether or not to request an instruction on involuntary manslaughter with my client, at some length, and I think I have thoroughly advised him of the significance of the decision involved in deciding whether or not to request such an instruction. I think he is aware of the effect of this and it is my client’s feeling that he does not want an instruction on involuntary manslaughter.
“Mr. Elmborg: May I state for the record in capsule form what I have told my client in this regard, your Honor. I have informed him that there is evidence in the record to support a finding of involuntary manslaughter, that this would be supported by testimony to the effect that he did indeed kill Jerome Gronquist, although unintentionally and without any malice. I have informed him of the maximum punishment that may be inflicted for the commission of such an offense and I have also informed him that if the jury is not instructed respecting involuntary manslaughter that it may not find him guilty of involuntary manslaughter, but that it may find him guilty only of second degree murder or voluntary manslaughter, each of which is an intentional killing, that it may acquit him on the basis of self defense, but, more particularly, that it may not find him guilty of any offense. If it finds that his actions — that he did in fact kill Jerome Gronquist, and the jury further finds that this was unintentional, he must be acquitted.
“The Court: Very well, and he understands the punishments for murder second and voluntary manslaughter?
“Mb. Elmborg: They have been explained to him, do you understand them Donald?
“Defendant Weyer: Yes, sir.
“The Court: And you also understand what Mr. Elmborg just said concerning this particular instruction or lack of the instruction in this case?
“Defendant Weyer: Yes, sir.
“The Court: Very well, that being the case then, gentlemen, you have both had an opportunity to review the proposed instructions and we have now numbered these instructions from one through twenty-four, do either of you have any proposed instructions or suggestions as to alterations of the instructions as they exist at this time?
“Mr. Sprouse: The State is satisfied with the instructions as they are, your Honor.
“Mr. Elmborg: The defense is satisfied with the instructions as proposed.”
The trial court instructed the jury on murder in the second degree and upon voluntary manslaughter. As indicated the jury found appellant guilty of the former. No instructions as to involuntary manslaughter were given.
Appellee asserts in support of the trial court’s action that appellant knowingly requested that no instruction on involuntary manslaughter be given and, further, certain rulings by this court to the effect that when a defendant has been charged with and convicted of murder under evidence supporting that charge, the correctness of instructions relating to manslaughter becomes immaterial. Respecting this line of authority we stated in State v. Metcalf, 203 Kan. 63, 452 P. 2d 842, as follows:
“. . . [T]he rule has been well established that when a defendant has been charged with and convicted of murder in the first degree, the correctness of instructions relating to manslaughter becomes immaterial. This rule was perhaps most simply stated and explained in State v. Kelly, 131 Kan. 357, 291 Pac. 945, by the following quotation from State v. McCarty, 54 Kan. 52, 36 Pac. 338:
“ ‘ “. . . where the jury under proper instructions have found a defendant guilty of every element of the superior offense, erroneous instructions or a total failure to instruct with reference to an offense inferior in degree and including less criminality cannot, logically, be said to have influenced the jury. The failure of die court can only be said to be prejudicial to the defendant on the theory that the jury failed to fully comprehend the definition of the superior degree, or misconstrued and misapplied the law to the facts. To indulge in such presumptions, even though we know that mistakes are made by juries and courts alike, is to overturn the whole theory of the administration of justice, (p. 58.)”’ (p. 364.)
“See, also, cases cited in State v. Spencer, 186 Kan. 298, 304, 349 P. 2d 920).” (p. 67.)
However, it must be acknowledged the foregoing principle has not always been applied. Several examples could be cited but a most recent one, respecting an alleged homicide occurring in 1969, is State v. Roberson, 210 Kan. 209, 499 P. 2d 1137. There the defendant was convicted of second degree murder. The trial court denied his request for an instruction on first degree manslaughter. In ordering new trial this court stated:
“. • • [W]here, in a criminal prosecution, the evidence is such as to support a finding of guilty of an offense lesser than but included within the more serious offense on which the accused is being tried, the trial court should instruct the jury as to the lesser included charge.” (p. 211.)
Cited in support of the foregoing as related to homicides was our holding in State v. Fouts, 169 Kan. 686, Syl. ¶ 3, 221 P. 2d 841.
This court has also been confronted with situations in which it was apparent the accused in a homicide was quite content not to have instructions given as to lesser included offenses, preferring instead to gamble on the outcome and “go for broke” on an all or nothing basis; that is, either conviction of the most serious crime charged or complete exoneration of any offense whatsoever. Typical of this strategy is that revealed in State v. Post, 139 Kan. 345, 30 P. 2d 1089, wherein this court commented:
“According to defendant’s contention the necessity for instructions relating to lesser offenses was patent and not latent . . .; and the requirement of substantial evidence tending to prove guilt of a lesser offense involved in the main charge . . . was satisfied. If this be true, the question arises, why did defendant’s counsel omit from the studied request for instructions, instructions on the subject of manslaughter, and so protect defendant from conviction of murder? The court is perfectly familiar with the practice, and the answer is simple and obvious.
“Defendant was a grievously wronged husband. His victim was his wife’s would-be seducer. Experience teaches there was strong probability a sympathetic jury could be induced to acquit, rather than convict of murder. If given the opportunity the jury would certainly convict of a lesser offense, entailing comparatively light punishment. If the jury should convict of murder, error in failing to give proper instructions might be urged in an appeal to this court.
“At the trial of a case of this kind, counsel for defendant must decide whether he will request instructions relating to manslaughter, just as he must decide whether he will place his client on the witness stand. Having decided not to make the request, he has waived instructions on manslaughter, and must abide the result. This is familiar law in this state. However, to prevent a miscarriage of justice, the court will examine the proceedings to see if the verdict of guilty of the greater offense was based on satisfying evidence, and was returned under proper instructions relating to that offense.” (p. 351.)
Intriguing as this may be, we think the answer to the problem now comes from a new provision in our recently enacted criminal code. K. S. A. 1971 Supp. 21-3107(3), which became effective July 1, 1970, provides:
“In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to." (Emphasis supplied.)
Plain, unambiguous language is used in this statute and the meaning is clear. No longer is the choice of giving instructions in a situation described therein left to counsel or to the accused, although their views are, of course, to be considered. The statute explicitly places on the trial judge the duty of giving whatever instructions are appropriate upon his analysis of the law and the evidence, and this despite the requests or even the objections of the parties. The statute does no more than recognize a public interest in having a verdict determined in accord with the facts developed at trial. No longer are the choices of the jury to be limited to those agreed upon by the adversaries as a matter of gamesmanship. The statute is specific in nature and, where it is applicable, must control over the general provision contained in K. S. A. 1971 Supp. 22-3414 ( 3) that no party may assign as error the giving or failure to give an instruction unless he objects thereto.
Another consequence of the enactment of 21-3107 (3) is that the principle referred to in State v. Metcalf, supra, no longer remains valid.
K. S. A. 1971 Supp. 21-3404 defines involuntary manslaughter. The elements of this offense basically are (1) That the Trilling was done unintentionally, and (2) that is was done during commission of an unlawful act not amounting to a felony or during commission of a lawful act in an unlawful or wanton manner. Appellant testified he did not intentionally kill Jerome and at the least the evidence was disputed as to just when and under what circumstances the lethal shot was fired. Without laboring the matter we think the record reveals sufficient evidence on behalf of appellant to warrant an instruction on involuntary manslaughter. Hence we hold the trial court erred in not instructing thereon, for which new trial must be ordered.
Appellant challenges his conviction in other respects but in view of the conclusion just reached only a few of them need be noticed. He complains the trial court failed to instruct the jury how it should consider an incriminating pretrial statement made by him to a K. B. I. agent. The trial court gave only general instructions as to how the jury should weight the evidence and determine disputed factual issues. Appellant’s failure to request a more specific instruction on the statement is one which properly falls within the ambit of K. S. A. 1971 Supp. 22-3414 (3), hereinbefore referred to.
Appellant has also challenged the propriety of the court’s action in instructing on self-defense. He asserts such an instruction should not have been given and further complains of the language used in that given, particularly as to the prefatory language in No. 17 to the effect that he claimed he shot the deceased in self-defense. Here again no trial objection was lodged but, treating the issue now on its merits, the trial court’s action was not improper. Upon voir dire examination and in his opening statement to the jury appellant’s counsel asserted the issue of self-defense. Evidence adduced in behalf of appellant, if believed by the jury, would have supported such a defense. Without faulting in anywise the instruction given by the trial court, we would point to the objective handling of this special defense set forth in PIK § 54.17, et seq., Criminal, which closely dovetails with our present statutes on the matter (K. S. A. 1971 Supp. 21-3211, et seq.) and is appropriate where the evidence admits of more than one defense to the most serious offense charged.
Other matters urged upon this appeal, including those raised by way of postconviction proceedings authorized by the trial court because of the withdrawal of appellant’s trial counsel prior to sentencing, have either become moot or are of such nature as not to warrant present consideration.
The judgment is reversed with directions to grant a new trial.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment in favor of the plaintiff recovered for damages caused by injuries sustained in a collision between an automobile in which the plaintiff was riding and a train consisting of an engine and caboose operated by the de fendant at a crossing of a public road and the railroad of the defendant.
The plaintiff alleged that the defendant was negligent in operating its locomotive in a careless and negligent manner and in running it at a dangerous and excessive rate of speed. The cause was tried to a jury, which returned a verdict in favor of the plaintiff for $2,000 and answered special questions as follows:
“Q. 1. Do you find that on the occasion in question the railroad track was straight for about one thousand (1,000) feet northeast from the point of accident? A. Yes.
“Q. 2. At what rate of speed was plaintiff driving his automobile in going onto the railroad track? A. About 10 miles per hour.
“Q. 3. At what rate of speed was defendant's engine approaching the .point of accident on the occasion in question? A. About 30 miles per hour.
“Q. 4. On approaching the railroad track on the occasion in question, did plaintiff stop before going on that track? A. No.
“Q. 5. If you answer the preceding question in the affirmative, state how many feet from the point of accident plaintiff last stopped before going on the track. A.
“Q. 6. On the occasion in question, from the time plaintiff got within 15 feet of the point of collision until he drove on the railroad track, what, if anything, was there to prevent his ascertaining the approach of the defendant’s engine if, before going on the track, he had stopped and carefully looked along that track in the direction from which .the engine was then coming thereon? A. Nothing.
“Q. 7. On the occasion in question, from the time plaintiff got within 25 feet of the point of collision until he drove on the railroad track, what, if anything, was there to prevent his ascertaining the approach of the defendant’s engine if, before going on the track, he had stopped and carefully looked along that track in the direction from which the engine was then coming thereon? A. Nothing.
“Q. 8. On the occasion in question, from the time plaintiff got within 35 feet of the point of collision until he drove on the railroad track, what, if anything, was there to prevent his ■ascertaining the approach of the defendant’s engine if, before going on the track, he had stopped and carefully looked along that track in the direction from which the engine was then coming thereon? A. Nothing.
“Q. 9. If you find for the plaintiff, please state upon what negligence of defendant, if any, you base your verdict. A. Exceeding speed limit and no evidence showing an attempt of the defendant to stop.
“Q. 10. From the time plaintiff entered the paved portion of the street until he got within ten feet of the railroad track, did he look northeast along said track fo'r engines or cars? If so, where? A. No.”
The defendant filed a motion for judgment on the special findings of the jury. That motion was denied, and judgment was rendered in favor of the plaintiff.
1. The defendant assigns error on the overruling of its motion for judgment on the special findings of the jury, on not rendering judgment for the defendant, and on rendering judgment in favor of the plaintiff. All these present but one proposition, and that is: Should judgment have been rendered in favor of the defendant on the special findings of the-jury notwithstanding the general verdict?
The plaintiff seeks to avoid the contentions of the defendant by arguing that the plaintiff was not negligent, and that the findings of the jury were not in conflict with the general verdict. The findings show that both the plaintiff and the defendant were violating the law in the rate of speed at which they were traveling; that the plaintiff did not stop before going on the track; that he could have seen the approaching train when he was fifteen feet, twenty-five feet, and thirty-five feet from the track; and that he did not look to see whether or not a train was coming until he was within ten feet of the railroad track. In Jacobs v. Railway Co., 97 Kan. 247, 252, 154 Pac. 1023, this court said:
“More than a dozen times this court has said that a traveler must look and listen for approaching trains before attempting to cross railroad tracks, and that if he fails to do so and is injured in consequence thereof, damages cannot be recovered for such injury.”
More than a dozen cases, beginning with the 10th Kansas and ending with the 94th Kansas, are cited to support the statement here made. Numerous cases decided since that time might also be cited, among which are Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742; Bunton v. Railway Co., 100 Kan. 165, 163 Pac. 801; Williams v. Electric Railroad Co., 102 Kan. 268,170 Pac. 397; Grisham v. Traction Co., 104 Kan. 712, 715, 181 Pac. 119; Rathbone v. Railway Co., 113 Kan. 257, 260, 214 Pac. 109; Ewing v. Railroad Co., 117 Kan. 200, 206, 231 Pac. 334; and Brown v. St. Louis-San Francisco Rly. Co., 121 Kan. 32, 245 Pac. 1034.
Under the findings of the jury, the plaintiff was guilty of contributory negligence.
2. The plaintiff argues that he was entitled to judgment under the last-clear-chance principle of the law of negligence. We quote that principle from 11 C. J. 281, 283, as follows:
“The party who has the last opportunity of avoiding an accident is not excused by the negligence of anyone else. His negligence and not that of the one first in fault is the proximate cause of the injury. Again it has been stated in this way; where both parties are negligent, the one that has the last clear opportunity to avoid the accident, notwithstanding the negligence of the other, is solely responsible for it, his negligence being deemed the direct and proximate cause of it, . . . but this principle cannot govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them. The doctrine, however, is susceptible of two interpretations. The one is that it will apply only to cases where the negligence of the injured party is wholly antecedent to the negligence of the party causing the accident, and hence that, where the negligence of the injured party is continued up to the time of the accident, it will not apply if there is a physical possibility for him to escape.”
In Juznik v. Railway Co., 109 Kan. 359, 364, 199 Pac. 90, this court said:
“If the defendant was negligent as pleaded and there was contributory negligence on the part of the plaintiff, and his negligence was concurrent and contemporaneous with that of the defendant up to the moment of the injury, there can, of course, be no recovery.” (See, also, Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680; Railway Co. v. Clinkenbeard, 77 Kan. 481, 485, 94 Pac. 1001; Railway Co. v. Bentley, 78 Kan. 221, 93 Pac. 150; Marple v. Railway Co., 85 Kan. 705, 118 Pac. 690; Mourning v. Railway Co., 110 Kan. 417, 420, 204 Pac. 721; Muir v. City Railways Co., 116 Kan. 551, 555, 227 Pac. 536; Tartar v. Missouri-K.-T. Rld. Co., 119 Kan. 365, 239 Pac. 754.)
The plaintiff’s right to recover on the last-clear-chance principle was submitted to the jury by the court, but the evidence abstracted shows that there was no room for the application of the principle. The evidence does not show that the plaintiff was at any time in a place of danger from which he could not extricate himself until the train was so close to him that a collision with his automobile could not be avoided. The evidence tended to prove that along the railroad track there was a clear view of the crossing for a thousand feet; that the plaintiff looked for an approaching train but saw none; that the street was muddy and slippery; that the plaintiff’s car skidded; that the plaintiff first saw the engine when it was about seventy-five feet from him and he was about ten feet from the track; that he could not then stop his car before going on the track; that he attempted to cross ahead of the train; that he would have succeeded if he had had another second of time; that his car was struck by the engine, but his car was moving all the time; that he did not attempt to stop it; and that the train running at six miles an hour ought to have been stopped within ten or fifteen feet, and running at twenty miles an hour ought to have been stopped within sixty feet. The jury found that the train was running thirty miles an hour. When the plaintiff first saw the train, it was seventy-five feet from him. He did not attempt to stop. The trainmen could not assume that he would not stop. He was then in a place of danger from which he could not extricate himself. He tried to beat the train, and failed. The reason given by the plaintiff for not attempting to stop his car was that after he saw the train, he could not stop the car before it got on the railroad-track. The findings of the jury and the evidence of the plaintiff showed that he was negligent in going on the track, and that his negligence continued until the collision occurred.
The judgment is reversed, and judgment is rendered in favor of the defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
In May, 1926, an opinion was rendered in this action. It is found in In re Irish, 121 Kan. 72. In due time a motion for rehearing was filed. That motion urged two important constitutional propositions which had not been theretofore presented to the court. A rehearing was granted. All of the matter urged in the motion for rehearing will now be discussed. It is unnecessary to restate any of the facts except to state that at the time of his arrest H. P. Irish' was an employee of the Jordan Bakery Company, a corporation, doing business in Topeka and selling bread and bakery ■ products in the city of Holton, and that no license fee is exacted of a resident of the city of Holton who sells bread or bakery products therein. The matters disposed of in the former opinion will not be again discussed.
1. The petitioner, H. P. Irish, contends that the ordinance violates that part of section 2 of article 4 of the constitution of the United States which reads:
“The citizens of each state shall be entitled to all privileges and immunities of citizens of the several states.”
We quote from In re Jarvis, 66 Kan. 329, 71 Pac. 576, as follows:
“Chapter 371, Laws of 1901 (Gen. Stat. 1901, §§3922-3929), so far as it exacts the payment of a license tax by nonresidents, from which certain residents of the state are exempted by the fact of their residence, is repugnant to the provision of the federal constitution that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” (Syl. ¶2.)
“The petitioner claims that the statute in question is unconstitutional upon several grounds, only one of which it will be necessary to consider. It provides that it shall be a misdemeanor for any one to deal as a peddler without procuring and paying for a license from the county clerk, but expressly exempts from its operation the owner of goods peddling them in the county in which he is a resident taxpayer, or in any county immediately adjoining thereto. The statute, therefore, attempts to impose a tax on nonresidents of the state from which certain residents of the state are exempted by the fact of such residence. This is an obvious discrimination in favor of the resident and against the nonresident, and is repugnant to section 2 of article 4 of the federal constitution, which provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. (Ward v. Maryland, 12 Wall. 418, 20 L. Ed. 449; Fecheimer Bros. & Co. v. City of Louisville, 84 Ky. 306, 2 S. W. 65; Graffty v. The City of Rushville, 107 Ind. 502, 8 N. E. 609, 57 Am. Rep. 128.) The petitioner avers that he is a citizen and resident of the state of Georgia, and is therefore in a position to complain of the discrimination.” (p. 332.)
A municipality cannot be authorized to do and cannot do what the state cannot do.
H. P. Irish does not show that he is a nonresident of Kansas. In 12 C. J. 760, the rule is declared to be that “it is a firmly established principle of law that the constitutionality of a statute may not be attacked by one whose rights are not affected by the operation of the statute.” A large list of cases is there cited to support the statement quoted. In 12 C. J. 768 it is said:
“The unconstitutionality of a statute on the ground that it denies equal rights and privileges by discriminating between persons or classes of persons may not be raised by one not belonging to the class alleged to be discriminated against.” See, also, City of Kansas City v. Railway Co., 59 Kan. 427, 53 Pac. 468, and State v. Smiley, 65 Kan. 240, 247, 69 Pac. 199.
H. P. Irish cannot invoke section 2 of article 4 of the federal constitution.
2. The petitioner also contends that the ordinance violates that part of the fourteenth amendment to the constitution of the United States which reads:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
If the ordinance deprives the petitioner of liberty or property without due process of law or denies to him the equal protection of the law, he can insist that the ordinance is invalid because it violates that amendment.
In Barbier v. Connolly, 113 U. S. 27, 31, the United States supreme .court said:
“The fourteenth amendment, in declaring that, no state ‘shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,’ undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property . . . that no impediment should be interposed to the pursuits of any one except as applied tocthe same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition.”
The ordinance in question discriminates between residents of the city of Holton and nonresidents thereof.
We quote from the headnotes to Truax v. Raich, 239 U. S. 33, as follows:
“The right to earn a livelihood and to continue employment unmolested by efforts to enforce void enactments is entitled to protection in equity in the absence of an adequate remedy at law. . . .
“The right to work for a living in the common occupations of the community is of the essence of that personal freedom and opportunity which it was the purpose of the fourteenth amendment to secure.” (Syl.)
The Kansas workmen’s compensation ■ act, as enacted by section 3 of chapter 226 of the .Laws of 1917, contained the following provision:
“If the workman does not leave any dependents citizens of and residing at the time of the accident and injury in the United States or the Dominion of Canada, the amount of compensation shall not exceed in any case the sum of seven hundred fifty dollars ($750).”
In Vietti v. Fuel Co., 109 Kan. 179, 197 Pac. 881, an action by two aliens, natives of Italy and dependents of a deceased workman, it was said:
“The statutory provision in question is also in conflict with that clause of the fourteenth amendment to the federal constitution which provides that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ ”
The court there also said:
“The plaintiffs were lawful inhabitants of Kansas, and therefore had a right to invoke the protection of the amendment.” (p. 182.)
In Lochner v. New York, 198 U. S. 45, 53, the rule was declared that—
“The general right to make a contract in relation to his business is part of the liberty of the individual protected by the fourteenth amendment of the federal constitution.”
In Chicago, B. & Quincy R. R. Co. v. McGuire, 219 U. S. 549, 566, the court said:
“It has been held that the right to make contracts is embraced in the conception of liberty as guaranteed by the constitution. (Allgeyer v. Louisiana, 165 U. S. 578; Lochner v. New York, 198 U. S. 45; Adair v. United States, 208 U. S. 161.) In Allgeyer v. Louisiana, supra, the court, in referring to the fourteenth amendment, said (p. 589): ‘The liberty mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.’ ”
In Coppage v. Kansas, 236 U. S. 1, 14, the following language was used:
“Included in the right of personal liberty and the right of private property— partaking of the nature of each — is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money.”
H. P. Irish has the right to invoke the fourteenth amendment to the constitution of the United States for his protection.
In The Town of Pacific Junction v. Dyer, 64 Ia. 38, the supreme court of that state held that a license ordinance discriminating in favor of resident merchants of Pacific Junction and against all other resident merchants of Iowa was in conflict with section 8 of article 1 of the constitution of the United States, the interstate commerce clause.
State v. Osborne, 171 Ia. 678, held an ordinance discriminating in favor of merchants of Indi'anola, Iowa, against those of other places in Iowa invalid. Discriminatory ordinances were held invalid in Ex parte Thomas, 71 Cal. 204, and in Brown v. Judge of Superior Court, 145 Mich. 413.
There is an abundance of authority for holding the ordinance in question invalid. See 2 McQuillin Municipal Corporations, 1604; note, to State v. Bayer, 19 L. R. A., n. s., 297; note to State v. Williams, 40 L. R. A., n. s., 279, 286; 7 Rose’s Notes, 445-449; note in 4 Encyc. U. S. Sup. Ct. Rep. 475; 7 Encyc. U. S. Sup. Ct. Rep. 472; 37 C. J. 205.
The ordinance is invalid because it violates the fourteenth amendment of the constitution of the United States. For that reason, the petitioner is discharged from custody. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs sued to enjoin the defendants from extending the corporate limits of Junction City so as to include real property owned by them. Judgment was rendered in favor of the defendants, and the plaintiffs appeal.
It is argued that the ordinance extending the corporate limits so as to include the property owned by the plaintiffs is invalid because the property had not been platted into lots and blocks, was not circumscribed by territory within the corporate limits, and because no petition had ever been presented to the county commissioners of Geary county asking that the territory be taken into the city.
The petition alleged:
“That a number of the tracts owned by the plaintiffs contain more than five acres in one body; that said territory sought to be added to said city by said ordinance is chiefly farming land.”
The answer alleged that in 1881 the land had been platted as an addition to the city of Junction City and that—
“The certificate of said owner specifically provided that the territory was laid out in lots and blocks as an addition to Junction City and dedicated the streets shown by said plat to public use.”
By stipulation, the cause was tried on the affirmative facts alleged in the pleadings and on a plat of the additions in controversy, which plat showed that part of the city of Junction City adjacent to the territory sought to be annexed. The plat showed that one of the additions adjoined the west corporate limits of the city and that one corner of the other addition adjoined a corner of the south corporate limits of the city. One of the additions was shown as Price’s addition and the other one was shown as the West Side addition. All of the West Side addition was sought to be annexed, but not all of Price’s addition. The whole of Price’s addition was approximately 1,248 feet wide north and south by 2,648 feet long east and west. A strip off the east end of the addition about 331% feet wide east and west and 1,248 feet long north and south was sought to be added to the city, and another strip off the south side of Price’s addition extending west from the south end of the strip just described 2,316% feet east and west and 187- feet wide north and south, was also sought to be added to the city. The east end of Price’s addition had been subdivided into two blocks numbered 6 and 13, the east one-half of each of which had been subdivided into five lots each 125% feet wide north and south by 331% feet long east and west, each of which contained almost one acre. On the north side of Price’s addition was platted a street known as Fair street, thirty feet wide; and on the south side of that addition was shown a road known as Eighth Street road, sixty feet wide. The plat did not show any streets or alleys through Price’s addition. The plat showed that Price’s addition contained more than seventy acres of land.
The West Side addition, the southeast corner of which adjoined the northwest corner of the corporate limits of the city, extended 980 feet north and south by 509 feet east and west. The plat showed that this addition had been divided into numbered, unnamed tracts and showed one street running through it, and showed alleys running through it, north and south, and east and west. The plat showed that the tract was on the south side of Eighth Street road, which was sixty feet wide, and that on the south side of the tract Fifth street had been extended so as to adjoin on the south that part of the tract which had been subdivided into blocks or parcels.
None of the territory sought to be annexed was circumscribed by the corporate limits of the city.
A plat of the territory sought to be annexed and of a part of the city follows:
Pertinent statutes are sections 12-501 and 12-502 of the Revised Statutes. Section 12-501 reads:
"Whenever any city desires to enlarge the limits thereof from territory adjacent thereto, the governing body of such city shall in the name of the city present a petition to the district court of the county in which said city is situated, or the judge thereof, setting forth by metes and bounds the territory sought to be so added and praying that such territory may be added thereto"
Section 12-502, in part, reads:
"Notice of the time and place of said hearing, together with a description of the property sought to be added to said city, and the names of the owners thereof so far as the same can be ascertained from the records of said county shall be published for three consecutive weeks in some newspaper of general circulation in said city: . . . Provided,~ That no such proceeding shall be necessary when the territory sought to be added is subdivided into lots and blocks, but in such cases the city shall have power to add such territory to the city by ordinance."
In Ruland v. City of Augusta, 120 Kan. 42, 242 Pac. 456, the court said:
“The general question of the advisability of enlarging the territorial limits of a municipal corporation is a legislative question which, under our constitution, cannot be delegated to the courts.
“R- S. 12-501, 12-502, in so far as they attempt to confer upon the district-court, or judge thereof, authority to entertain a petition to increase the corporate limits of a city by adding unplatted territory thereto, to determine the advisability of the proposed territorial increase, and to make orders in relation thereto, are void, as an attempt to confer legislative functions upon the judiciary.” (Syl.)
Sections 12-501 and 12-502 are the result of revisions made by the commission to revise the general statutes. Prior to that revision, chapter 118 of the Laws of 1905 was in effect. That law, found in the General Statutes of 1915 as section 808, so far as it is material to the present discussion, reads:
“That whenever the city council of any city of the second or third class desire to enlarge the limits thereof from the territory adjacent thereto, said council shall, in the name of said city, present a petition to the board of county commissioners. . . . Upon such petition being presented to said board of county commissioners . . . they shall proceed to hear testimony as to the advisability of making such addition: . . . Providing [Provided], That no such proceeding shall be necessary where the territory sought to be added is subdivided into lots and blocks, but in such cases the city council of such city shall have power to add such adjacent territory to said city by ordinance: And further provided, No unplatted territory of over five acres shall be taken into said city against the protest of the owner thereof, unless the same is circumscribed by platted territory that is taken into said city.”
The portion of that part of Price’s addition which was sought to be added to the city was adjacent to it, but was not circumscribed by the corporate limits of the city.
In proceedings to assess city property for public improvements, this court has said that “a block is a portion of a city inclosed by streets or avenues.” (Olsson v. City of Topeka, 42 Kan. 709, 21 Pac. 219. See, also, Bowlus v. Iola, 82 Kan. 774, 109 Pac. 405; Railway Co. v. City of Chanute, 95 Kan. 161, 147 Pac. 836; Cravens v. City of Salina, 101 Kan. 161, 163, 165 Pac. 801.) But that definition has not always been strictly followed in such proceedings. (Larson v. City of Ottawa, 101 Kan. 422, 166 Pac. 565; Railway Co. v. City of Topeka, 103 Kan. 897, 176 Pac. 642; Atchison, T. & S. F. Rly. Co. v. City of Ellinwood, 119 Kan. 218, 238 Pac. 341; Union Pac. Rld. Co. v. City of Russell, 119 Kan. 350, 240 Pac. 264.)
In Stewart v. Adams, 50 Kan. 560, 32 Pac. 122, the court said:
“A city of the second class cannot enlarge its limits from the territory adjacent thereto by an ordinance of the city council only, when the territory sought to be added is not subdivided into lots and blocks. (Gen. Stat. 1889, If 884.)” (Syl. ff 3.)
The statute then under consideration provided for a petition to the judge of the district court substantially as is provided in section 12-501 of the Revised Statutes, and then provided “that no such proceeding shall be necessary where the territory sought to be added is subdivided into lots and blocks, but in such cases the city council of such city shall have power to add such adjacent territory to said city by ordinance.”
Was Price’s addition platted into lots and blocks as required by statute so as to enable the city by ordinance alone to include any part of the addition within the corporate limits? It was divided into tracts some of which contained approximately one acre and the remainder more than five acres each, none of which was surrounded by streets, and through which there were no alleys. Four streets from the city extended to the addition but did not go through it. One-half of that part of two of the tracts, shown as block No. 6 and block No. 13, was divided into lots 331% feet long and 125% feet wide. Only three of those lots, the north one and the two south ones, had any street along them. It cannot be said the Prices’ addition was platted into lots and blocks so as to authorize the city to include it within its corporate limits by ordinance.
In Stewart v. Adams, supra, the court said:
“We think the reasons given by the trial judge are sufficient to show that the city council, in passing both ordinances Nos. 115 and 217, acted without jurisdiction, as all the territory sought to be added was not subdivided into lots and blocksj as prescribed by the statutes; and that it cannot be said, considering the language of the ordinances, that either ordinance is valid as to the tracts or pieces of land subdivided into lots and blocks, but not valid as to the tracts or pieces of land which were not subdivided or platted. In this case, the ordinances must all stand or fall together, because all of the parts are inseparably united.” (p. 565.)
It is not necessary to discuss whether or not the West Side addition was platted into lots and blocks and adjoined the city so as to authorize it to annex that addition to the corporate limits. The reason for this conclusion is that the ordinance must fail because of the attempt to annex Price’s addition to the corporate limits of the city, a thing that was beyond the power of the city to do in the manner in which it was attempted to be done. The ordinance is invalid. The plaintiffs should have prevailed.
The judgment is reversed, and judgment is rendered in favor of the plaintiffs.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, W. A. Stout, brought this action in ejectment to obtain possession of 960 acres of Wichita county land to which he held title by quitclaim and warranty deeds executed by the defendant, D. F. Carter.
The defense was that the deeds were intended to have the legal effect of 'an equitable mortgage to secure the return of a sum of money loaned by plaintiff to defendant. Plaintiff’s version of the transaction was that he had bought the land for $8,000, with a year’s option that defendant might repurchase it for $10,000.
Touching the more important facts developed at the trial, it appears that in February, 1922, defendant, D. F. Carter, was the owner of the property in controversy, but it had been subjected to a mortgage-foreclosure sale and the period of redemption was about to expire. To save Carter’s rights the plaintiff, Stout, and defend ant, Carter, made an oral agreement, the exact nature of which was the chief question in dispute in this lawsuit, pursuant to which Carter gave Stout a quitclaim deed to the property, and Stout sent his attorney and agent from Wichita to Scott City to redeem it from the sale in foreclosure. Stout contributed $8,000 for that purpose and Carter contributed the requisite balance, $678.63. The quitclaim deed was executed and delivered on February 18, 1922, and the property redeemed on February 23, 1922, just five days prior to the expiration of the redemption period. On February 23 Carter gave Stout a warranty deed to the land and executed a contract in which he agreed to pay the taxes for 1920 and 1921, then past due.
On the following day, February 24, 1922, Stout executed a reconveyance of the property by warranty deed in favor of Carter and placed that deed in a Wichita bank to be delivered to Carter upon payment of $10,000 on or prior to February 24, 1923, and on the same day the depositary notified Carter of its receipt and apprised him of the terms of the escrow.
Defendant did not take up the deed according to the terms of the escrow; and during the succeeding years he has paid neither rent, taxes, nor interest, but continued in possession of the premises and appropriated the rents and profits to his own use.
On August 8, 1924, plaintiff brought this action in ejectment, alleging his ownership and right to possession, the wrongful possession of defendant, the reasonable value of the use, rents and profits, and prayed for possession and damages.
The pleaded defense was a general denial. At the trial, defendant testified that in February, 1922, he went to see the plaintiff and that—
“He [defendant] discussed with Stout this matter, and Stout made various suggestions as to where he might get the money; that he explained to Stout that he had seen Brown & Crummer [money loaners] and that they would furnish $7,500, and I would have to put up the balance and give a deed to the property, and have twelve months in which to take it up, and they to receive $10,000 in a year, making them a bonus of $2,500, and Mr. Stout said that was too much. . . . And he finally made me the proposition that he would let me have $8,000 if I would clean up everything in the way of the title, provided I would take care of the balance, and the time of the redemption period was so near I was willing to do most anything agreeable to Stout to get the money; that he made him the proposition of $8,000 and $2,000; that is, $8,000, and me raise the balance. . . .
“Q. In your conversation there with Mr. Stout, was it stated what the $2,000 was to ‘be for? A. Well, it was a matter of him furnishing the $8,000 and me paying him back the $2,000 at the end of twelve months.
“Q. What proposition was that, his or yours? A. Mr. Stout’s proposition.”
Plaintiff’s version of these negotiations was that defendant Carter came to see him and proposed that plaintiff should buy the property; that at first he declined to do so and sent defendant to see Brown & Crummer, the money loaners. Plaintiff testified:
“Carter went to see them, and then came back to see me, and proposed that if I would buy the land on a basis of $8,000 and give him an option to purchase it back at the end of a year, and possession of the ground, he would pay the taxes and any deficit there was between the $8,000 and pay him $10,000, and if he did not do that, then the land was Stout’s. . . . That there was a conversation at that time about an option on the property; that an option was mailed to him by Carter, and he filled it out, but decided it was better to put up a deed, because he was in Texas most of the time, and if the deed was in the bank, he could go in and take it up without seeing him [Stout]. Otherwise the place was to be the plaintiff’s with no obligation on the part of any other party.”
The cause was tried without a jury. Extended findings of fact were made, but the precise question whether the transaction testified to by the litigants was an outright conveyance of the property to Stout with an option to reconvey upon payment of a specified price, or whether the deeds of February 18 and 23, 1922, were merely an equitable mortgage to secure the repayment of a loan of $8,000, was not squarely decided.
The trial court’s conclusion of law was—
“That the plaintiff should have judgment against the defendant for the possession of the real property in controversy and for the sum of $655.40, unless the defendant pays to the plaintiff, on or before the 31st day of July, 1925, the sum of $11,987, with interest thereon at the rate of six per cent per annum from June 1, 1925, in which event plaintiff shall execute to defendant a good and sufficient deed to the premises in controversy.”
Judgment was entered accordingly, hence this appeal.
Defendant first assigns error in excluding the evidence of a local bank cashier who knew about Carter’s journey from Leoti to Wichita in February, 1922. This banker would have testified that defendant “told the witness that he had borrowed the money from Stout while in Wichita to redeem his land from the foreclosure suit.” That evidence was clearly incompetent; it did not bind Stout.in any way; Stout did not overhear that statement, and had no opportunity to deny it. (Scoby v. Bank, 112 Kan. 135, syl. ¶ 4, and citations, 211 Pac. 110.)
Appellant next argues that judgment should have been rendered in his favor on the .trial court’s findings of fact. He cites items of testimony and certain evidentiary incidents noted in the findings which did tend in some degree to support the view that the transaction between the litigants was that of a loan secured by deeds which were in effect a mortgage. On the other hand, there was ample evidence to support the position maintained by plaintiff. In addition to plaintiff’s own testimony, there was the potent significance of the deeds of February 18 and 23, 1922, conveying the property to Stout and the precarious situation of defendant at the time, when his right of redemption from the foreclosure sale was about to expire; and there was the fact that upon the redemption being effected and on the receipt of defendant’s warranty deed of conveyance, plaintiff immediately executed a reconveyance and deposited it in escrow, and defendant was promptly notified by the depositary that it held that deed in his favor subject to his payment of $10,000 on or before February 24, 1923. If the escrow did not correctly state the conditions of defendant’s agreement with plaintiff he should have challenged its accuracy at the time. Defendant’s failure to question the terms of that escrow — his long acquiescence in them — was evidence of highly persuasive character in this lawsuit. Qui non improbat, approbat. These evidential incidents, together with othef evidence in the record, furnish ample support for the qualified judgment entered in plaintiff’s behalf. (Root v. Wear, 98 Kan. 234, 237, 238, and syl. ¶ 4, 157 Pac. 1181.) Moreover, the testimony and evidential circumstances give little support to defendant’s claim that the transaction was a loan and mortgage. If the transaction was of the character testified to by defendant, a loan of $8,000 to be repaid in a year with $2,000 additional as interest, bonus, or what not, the oral contract to that effect would have been usurious and unenforceable. But the record does not convincingly show the existence of any debt owed to plaintiff which defendant could be compelled to pay. (Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 27; Kolar v. Eckhardt, 119 Kan. 518, 524, 525, 240 Pac. 947.) In view of all the testimony together and the significant evidentiary circumstances, it would not do for this court to upset the trial court’s judgment and declare that the equitable relationship of mortgagee and mortgagor, rather than that of optioner and optionee, correctly defined the status of these litigants.
We have noted the fact that the trial court did not expressly determine what the relationship of the parties was, but after making extended findings of fact, to which neither litigant took exceptions, the court did enter an equitable judgment which showed marked solicitude for the predicament of defendant. When that judgment was entered, nearly three years had passed since the property was conveyed to plaintiff, yet defendant still held possession of it, nor had he paid one cent as plaintiff’s debtor or tenant, nor had he paid any taxes as owner of the property. Plaintiff might have some complaint to make of this judgment, but neither .error of law nor miscarriage of justice is discernible of which defendant can rightfully complain.
The judgment is affirmed.
Harvey, J., concurs in the result. | [
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The opinion of the court was delivered by
Burch, J.:
The action was commenced by the vendee of real estate against the vendor, to cancel the contract of sale, to recover a cash payment made on the contract, and to recover damages for its breach. A bank and its cashier, alleged to be agents of the vendor, were joined as parties defendant, and relief against them was prayed for. The vendor was a resident of Barton county, and the land was situated in Barton county. The agents were residents of Ellsworth county, and the action was commenced in Ellsworth county. The vendor’s motion to quash service of summons made upon it in Barton county was sustained, and demurrers to the petition filed by the agents were sustained. The grounds of demurrer were that several causes of action were improperly joined, and the petition failed to state facts sufficient to constitute a cause of action. Plaintiff appeals.
The Citizens State Bank of Claflin owned the land, and sold it to plaintiff for $13,000. The contract was dated July 6; 1925, and acknowledged receipt of payment of $1,000. The remainder of the price was to be paid on or before August 1, 1925, at the First National Bank of Holyrood, in Ellsworth county. The vendor agreed to deposit an abstract showing clear title and a deed to plaintiff with the First National Bank, to be delivered to plaintiff on payment of the remainder of the purchase price, and plaintiff was to receive possession of the land on or before August 1, 1925. J. D. Stevenson was cashier of the First National Bank, and was agent of the Southwest Mortgage Company. Plaintiff executed a promissory note for $4,000 and a mortgage on the land securing the note, in favor of the mortgage company, and delivered them to Stevenson. The mortgage was recorded in Barton county. By means of the note and mortgage, Stevenson obtained from the mortgage company the sum of $4,000, which was in the custody of the First National Bank when the action was commenced. The inference from the allegation of means by which Stevenson obtained this money is that he delivered the note and mortgage to his principal, the mortgage company, and there is no allegation in the petition that the instruments were within the jurisdiction of the court when the action was commenced. Plaintiff alleged he was induced to execute and deliver the note and mortgage by false representations of the Citizens bank and its agents, that the title of the Citizens bank to the real estate was good, when in fact the title was not good. The petition also alleged that, when the contract was executed, Stevenson, as cashier of the First National Bank, charged plaintiff’s account with the sum of $1,000, but that plaintiff was informed and believed the money remained in the control of Stevenson and the First National Bank. Breach of the contract of sale by the vendor was alleged, damages in the sum of $1,700 by reason of the breach of contract was alleged, and the petition concluded with the following prayer:
“Wherefore, plaintiff prays judgment against the defendants and each of them, for money, had and received in the sum of $1,000, with interest thereon from July 1, 1925, at the rate of six per cent per annum, and for the sum of $1,700 as damages sustained; that the note executed and delivered by plaintiff to the defendant, J. D. Stevenson, as agent for.the Southwest Mortgage Company, in the sum of $4,000, together with the mortgage securing it, be canceled, released and returned to plaintiff; that said contract herein referred to be canceled, and for such other and further relief, either in law or in equity, as to the court shall seem just and proper.”
The Southwest Mortgage Company was not made a party to the action. Application of the $4,000 to payment of the mortgage com pany’s note and mortgage, and cancellation of those instruments, could not be adjudged against the mortgage company, and the prayer for relief against defendants, that the instruments be canceled and returned to plaintiff, was futile.
Plaintiff did not and could not assert that the initial payment of $1,000 was a fund in possession of the First National Bank and Stevenson, but which the Citizens bank claimed. With respect to that item he sued the First National Bank and Stevenson for money had and received. The contract which he accepted stated that payment had been “made and received” of that money. That contract was signed by the Citizens State Bank of Claflin, Kan., by M. Schumacher, its president. The principal, the Citizens bank, acknowledged to plaintiff that the agency of Stevenson and the First National Bank to receive and pay over plaintiff’s money had been performed. The money had been accounted for by the agents to their principal before plaintiff had any cause of action to recover it, and under such circumstances the agents are not liable to plaintiff for money had and received to the use of plaintiff, or in any other form of action, so far as the $1,000 item is concerned. (2 C. J., title Agency, § 495, pp. 821, 822.) The cases of Simmonds v. Long, 80 Kan. 155, 101 Pac. 1070, and Harwi v. Morton, 106 Kan. 87, 186 Pac. 740, have no application, because in each case the principal refused to be bound by the agent’s conduct, and the agent was left with money in his hands belonging to the person who paid it.
'Stevenson and the First National Bank were not parties to the contract, and did not break it. They are not subject to suit for its cancellation, or to action for damages for its breach.
The result of the foregoing is, the petition failed to state a cause of action against the First National Bank or Stevenson, and without statement of cause of action against them, or one of them, in which the Citizens bank was interested, the Citizens bank could not be brought into the Ellsworth district court by means of summons served in Barton county.
Stevenson and the First National Bank were not interested in cancellation of the contract, in recovery of the initial payment of $1,000 on the contract price, or in the subject of damages for breach of the contract. In no event could the Citizens bank be compelled to litigate those matters in Ellsworth county, unless it were served with summons in Ellsworth county. The Citizens bank was not interested in the money in the First National Bank obtained from the mortgage company on plaintiff’s note and mortgage, and the court was powerless to make an order respecting its disposition having any legal effect. Conceding the First National Bank and Stevenson were interested in disposition of that fund, several causes of action were improperly joined in the petition, and the demurrers on that ground were properly sustained.
Under the heading “Venue,” in the article on Cancellation of Instruments in 9 C. J. 1231, appears the following:
“In Kansas it has been held that an action to rescind a contract relating to land is local, and that therefore such action may be brought in a county other that that in which defendant resides. Neal v. Reynolds, 38 Kan. 432, 10 Pac. 785.” (Note 73 [b].)
This statement expresses a fair inference to be drawn from the commissioner’s opinion in Neal v. Reynolds, but it does not correctly present the views of the court respecting the subject of venue in suits for cancellation. In the opinion in Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785, it was said:
“The action as originally commenced in the district court of Allen county was one to rescind a real-estate contract, whereby the plaintiff in error exchanged real-estate situated in the city of Humboldt, in Allen county, for farming land situated in the state of Missouri. The plaintiff in error (plaintiff below) was a resident of Allen county; the defendants were residents of Lawrence, Douglas county. The exchange had been consummated by the execution of warranty deeds to the property by each of the parties, long before the action was commenced. The action was properly instituted in Allen county, because a part of the property exchanged is situated in that county (Code, §46), and a summons for the defendants issued to and was served by the sheriff of Douglas county (Code, §60). . . . The action for the cause alleged in the original petition was local, and it was only by reason of that and that alone, that Reynolds and wife could be compelled to litigate in Allen county, they being residents of Douglas county.” (p. 434.)
The commissioner omitted from the statement of facts the allegation of the petition that possession of the Humboldt lots had been given to defendants, and they had been in full enjoyment of the rents and profits for a period of about five years. The result was that, while the action was in form one for rescission of contract, it was in essence one for the recovery of real property. The statement that the action for the cause alleged in the original petition was local, was true, and defendants did not contest venue of the action. But the decision did not commit the court to the doctrine that actions to rescind or cancel real-estate contracts generally are local. The subject was considered in the case of Randall v. Ross, 94 Kan. 708, 147 Pac. 72, in which the distinction was drawn between cases in which the judgment would operate in personam only, and cases in which the judgment would operate against the land. The case of Randall v. Ross was decided in 1915, and the decision was not available when the Corpus Juris text was prepared. In the case under decision, the action for cancellation was transitory.
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The opinion of the court was delivered by
Marshall, J.:
Katie Peters appeals from an order directing the partition of real property in Pottawatomie county and denying her any interest therein.
George W. Shehi, at the time of his death, owned the real property in controversy and by will devised that property as follows:
“1. I give, devise and bequeath to my wife, Harriet J. Shehi all my property both real and personal, after all my debts and the expenses of my last sickness have been paid; she to have full control thereof during her lifetime. ,
“2. After the death of my wife, Harriet J. Shehi, I direct that all of my estate shall be divided equally, share and share alike, between my surviving children Mary L. Shehi, Charles W. Shehi, Emma J: Shehi, John A. Shehi, George Edward Shehi, Laura Shehi, Archibald Shehi and Grace Shehi.”
George W. Shehi died-on March 10, 1894, and left surviving him his widow, Harriet J. Shehi, and their eight children, named in subdivision two of the will as above set out. The will was afterward admitted to probate, and Harriet J. Shehi elected to take under the will. Harriet J. Shehi died on March 11, 1925. John A. Shehi, Laura Shehi, Archibald Shehi, and Grace Shehi died after the death of George W. Shehi and before the death of Harriet J. Shehi. John A. Shehi left surviving him Josie Shehi, his widow, and John Shehi, Myrna Shehi, Blanch Shehi, and Helen Shehi, his children, as his heirs, all of whom are now living. Laura Shehi married Cyrus Williamson; he and her child, Ivan Williamson, survived her and are now living. Archibald Shehi died testate and left surviving him his widow, Katie Shehi, and his children, Jane Shehi" Garnett Shehi, Howard Shehi, Geneva Shehi, and Clyde Shehi. The will of Archibald Shehi contained the following provisions:
“I give and bequeath unto my beloved wife Katie Shehi all my personal property and effects wheresoever situated to be hers absolutely. Second, I give and devise unto my said wife Katie Shehi, the one-half of all the real estate I may own at the time of my death wheresoever situated. Third, I give and devise to my five children, Jane, Garnett, Howard, Geneva, and Clyde Shehi, the remaining one-half of my real estate wheresoever situated, to be divided among them share and share alike.”
Katie Shehi elected to take under the will of her deceased husband. She afterward married Charles Peters and is the appellant Katie Peters. Grace Shehi married James Guilford and at her death left surviving her as her heirs her husband, James Guilford, and her chil dren, Boyce Guilford and Bernard Guilford, all of whom are now living.
The material parts of the findings of fact are as follows:
“The court doth find that by the terms and conditions of the last will and testament of George W. Shehi, deceased, that all of the real estate described in the amended petition was devised and bequeathed to his widow, Harriet J. Shehi, ánd that she received thereby title in fee simple to said real estate.
“The court further finds that Harriet J. Shehi died intestate on the 11th day of March, 1925, leaving as her sole heirs the persons named and designated hereafter.
“The court doth further find and determine that the heirs-at-law of Harriett-J. Shehi duly inherited and received title under the laws of the state of Kansas the real estate described in the amended petition. . . .
“The court doth further find that the defendants, Katie Peters, Josie Shehi, Charles Peters, Cyrus Williamson, Ella Williamson, James Guilford, Gussie Guilford, George McCarger, Josie Shehi as administrator of the estate of John A. Shehi, deceased, John Curl as executor of the estate of Archibald A. Shehi, deceased, Ella Shehi, John Curl, and Bertha Shehi, have no right, title, or interest of any kind or character in and to said real estate.”
The court rendered judgment in accordance with those findings, and from that judgment, Katie Peters appeals.
The conclusion of the court that Harriet J. Shehi, under the will, took title in fee simple cannot be sustained because that conclusion is in direct conflict with the terms of the will.
Katie Peters contends that the will of George W. Shehi devised a life estate to Harriet J. Shehi and vested remainder in the eight children of George W. Shehi, who survived him at the time of his death. The appellees contend that, by the will of George W. Shehi, each of his children toot: a remainder, contingent on surviving Harriet J. Shehi. The will directed that Harriet J. Shehi should receive the real property, to have full control thereof during her lifetime, and that after her death it should be divided equally between the named surviving children. Does that mean surviving George W. Shehi, or surviving Harriet J. Shehi? If it means surviving George W. Shehi, Archibald Shehi took a vested remainder, one-half of which was devised to his wife by his will; if the language means surviving Harriet J. Shehi, Archibald Shehi’s interest in the property was terminated by his death.
There is nothing in the will of George W. Shehi to indicate that it was not his intention that title to the property devised to his children should not vest upon his death,' subject, however, to the right of Harriet J. Shehi to control the property during her lifetime, unless it be contained in the language “after the death of my wife my estate shall be divided equally between my surviving children.” The language used is “my surviving children,” not “my children surviving my wife.” The apparent meaning of the phrase “my surviving children” is “my children surviving me.” If it had been the intention of George W. Shehi that the property should be divided between those of his children who survived his wife, it would have been an easy matter to have used explicit language to that effect. That was not done.
In 28 R. C. L. § 192 may be found the following language':
“The law favors the vesting of estates, or, as the rule is sometimes stated, the law favors the early vesting of estates, and it is familiar law that, in the absence of a clear manifestation of the intention of the testator to the contrary, estates are held to vest at the earliest possible period. Any doubt as to whether a legacy is vested or contingent is resolved if possible in favor of vesting, if such conclusion can be reached by a fair and reasonable construction of the whole will, and an estate Will not be held to be contingent unless very decided terms are used, in the will, or it is necessary so to hold in order to carry out the other provisions or implications of the will.”
In 40 Cyc. 1650 the writer says:
“The law favors the vesting of estates, and in the absence of words expressing a clear intent to the contrary, an estate will be construed as vested rather than contingent; and, consistently with testator’s intention, the estate will be construed to vest at the earliest possible time, so that, unless otherwise clearly expressed, it will vest immediately upon testator’s death.”
In Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, this court said:
“In a devise to a wife for life, with remainder to the legal heirs of the testator, to create a contingent remainder the intent so to do must be expressed in words so plain that there is no room for construction.
“No remainder will be construed to be contingent which may, consistently with the words used and the intention expressed, be deemed vested.” (Syl. Ulf 1, 2.)
That rule was recognized by this court in McLaughlin v. Penny, 65 Kan. 523, 530, 70 Pac. 341, and Dixon v. Dixon, 85 Kan. 379, 381, 116 Pac. 886.
In Loan & Trust Co. v. Salmon, 106 Kan. 833, 836, 189 Pac. 941, this court said:
“The rule that in a doubtful case a construction should be preferred favoring an early vesting of a title — a vested rather than a contingent remainder — . does not appear to us to be adapted to aid in the situation here presented.”
In Purl v. Purl, 108 Kan. 673, 675, 197 Pac. 185, the court said:
“A remainder will be regarded as vested rather than contingent, unless such an interpretation would contravene the testator’s expressed intention. A devise may vest, although time of enjoyment may be postponed.” .
Harriet J. Shehi did not take title to the real property in fee; the will of George W. Shehi created a vested remainder in those of his children who were living at the time of his death; Archibald Shehi, who died before the death of Harriet J. Shehi, could by will devise the property that,had been devised to him by George W. Shehi; and Katie Peters, under the will of Archibald Shehi, took one-half of all the real property that had been devised to him by his father, George W. Shehi.
The judgment is reversed, and the cause is remanded with instructions to the trial court to render judgment in accordance with this opinion. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
In this action T. H. Burgess asked a recovery from the St. Louis & San Francisco Railroad Company for personal injuries sustained by him while working in the water-service department of the company. He was employed as a day-laborer in digging a ditch, and on the second day of his employment the bank caved upon him, inflicting severe injury. The work was done under the orders and direction of a foreman and subforeman, whose duties, it is alleged, were to see that the workmen had a reasonably safe place to work, to keep a careful lookout for the safety of the men while working in the ditch, and to give them timely warning of danger from a cave-in of the banks of the ditch. The jury found that" when Burgess was ordered by the foreman to go into the ditch on the day of the injury there was a crack in one of the banks, but that Burgess did not know of it; that one of the workmen called the attention of the subforeman to it before Burgess was directed to go into the ditch; that when the foreman ordered Burgess to go to work he told the men there was no danger of a cave-in, and that Burgess relied upon his statement. It was found that the cave-in was caused by the crack in the banks, the allowing of water to run into and remain in the ditch, and by failing properly to shore up and brace the banks with lumber. Burgess was awarded damages in the sum of $1650.
There is a contention that a propeí preliminary notice of a claimed liability for the injury was not given to the company. In the act making the railroad company liable for injuries to an employee in consequence of the negligence of coemployees there is a prerequisite that notice in writing of the injury so sustained, stating the time and place thereof, shall be given by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident. (Laws 1903, ch. 393, § 1.) In this instance the notice was sufficient if it was served upon the proper representative of the company. It was served upon the ticket agent of the company at Olathe, Kan., and, assuming that a notice was necessary in this case, the one given is deemed to be sufficient. The statute as it then stood did not in terms prescribe how service should be made. The notice was given as a summons is required to be served, and, while the notice is not strictly a process; it is a preliminary and essential step to the institution of an action, and it would seem that in the absence of a pro vision as to the manner of service the kind required for the service of a summons would be sufficient.
Reference is made to K. P. Rly. Co. v. Thacher, 17 Kan. 92, and A. T. & S. F. Rld. Co. v. Sage, 49 Kan. 524, 31 Pac. 140, as authority that notice to a ticket agent is not sufficient. Neither of those cases is controlling. The first holds that notice of an attorney’s lien upon a judgment recovered against a railroad company could not be served upon a person in charge of the company’s depot. As that was a notice in an action to fix a lien upon the amount recovered, it could be served upon the attorney of record, but not upon a depot agent. The second case relates to a notice in a pending proceeding, viz., a notice to take depositions. Under the code it is contemplated that notice shall be given to some one connected with the litigation, and not to any agent of a railway corporation who might be found in any part of the state. As the notice in question is practically an initiatory step in the bringing of an action, its object will be well sub-served if such notic'e be given in the manner necessary for the service of process in the institution of an action. (State, ex rel. Milwaukee, Lake Shore & Western R. Co., v. O’Connor, 78 Wis. 282, 47 N. W. 433.) In the last legislature the statute fixing the liability of railroads in such cases was amended in several particulars, and, among them, as to service of notice as well as proof of service. It provides that service may be made upon the ticket agent as well as other named representatives of railroad companies. (Laws 1905, ch. 341.)
It is next contended that, under the facts of this case, the danger of working in the ditch was obvious to Burgess, and that he assumed the risk of the employment. In this connection it is argued that he knew of the instability of the soil in which he was digging; that it had already caved in places so that it was necessary to brace and shore up the banks; that several inches of water had stood in the ditch and softened the banks; and that the crack in the ground, indicating the danger of a cave-in, was near the ditch and within his view. On the other hand there is testimony that he was inexperienced, the injury having occurred on the second day of his employment; that he was told by the foreman who had the bracing of the banks in charge that it was all right; that it would not cave any more; that he saw no crack in the ground; that the subforeman did see the crack, but did not warn Burgess of its existence or of the danger; that when the subforeman’s attention was called to the crack by another workman he responded that he was there to keep the workmen from being hurt; that when Burgess was told to go to work and that the bank would not cave he relied upon the judgment of the foreman; that he did not hear the conversation about the crack, and did not see it, and that while down in the ditch it was not easy to see it.
In view of the testimony as to his inexperience, his lack of knowledge of the crack in the ground, and his reliance upon the assurance of those in charge of the work that it was safe, the question whether he assumed the risk was fairly one for the jury. There is no question but that he assumed the ordinary and obvious dangers of the employment, but the unusual dangers of which the foreman had knowledge and of which he had not were not assumed. When those in control of the work discovered the crack in the ground and the peril to Burgess, who was in the ditch, it was their duty to warn him of the danger and to take some precautions for his safety. This duty was recognized by the subforeman when he informed one of the workmen that he would look out for their safety.
The plaintiff in error relies upon Walker v. Scott, 67 Kan. 814, 64 Pac. 615, as authority for reversal, but that case is easily distinguishable from the present one. There the servant was fully informed as to the dangers of the employment and place, and had expressed a judgment and belief that a cave-in would occur. It appears that he had as great, if not greater, opportunity to know the conditions than the boss under whom he was working. Here the servant knew nothing of the crack or of the unusual danger, while the foreman did know of it, and notwithstanding this knowledge directed the plaintiff to go into the ditch and proceed with the work.
Complaint is made of that part of the second instruction given by the court in which the jury were told that “the burden is oh the defendant to prove by a preponderance of the evidence the material affirmative allegations of its answer, which are, in substance, that if plaintiff was injured his negligence contributed thereto, and that his injuries, if any, were the result of the ordinary dangers incident to, or attendant upon, his employment.” It is argued that this quotation is similar to an instruction that was condemned in Railway Co. v. Merrill, 61 Kan. 671, 60 Pac. 819. That instruction was held to be faulty because it contained the implication that the testimony in behalf of Merrill showing him to be guilty of contributory negligence could not be considered, and that the contributory negligence of the plaintiff could only be established by the testimony of the railroad company. The one complained of here contains no such implication. It relates to the burden of proof, and, when the whole of the charge is taken together, it is made clear that the jury were instructed to consider any and all evidence that was submitted to them on the subject of contributory negligence.
There are objections to other instructions, but they are not material, and we find nothing substantial in the objections made to the admission of testimony. The judgment is therefore affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
Numerous.objections are made to the rulings of the court on the trial, all of which have been examined but only three of which it will be necessary to discuss. The fourth objection is that the court erred in admitting testimony of a witness, Villorous Hall, charged as an accomplice, of the contents of certain letters not produced by him but alleged to have been burned or delivered to another codefendant, and not shown to have been written by the defendant on trial. There was evidence connecting the defendant with the writing of the letters. The witness Hall testified as follows:
“Ques. What, if anything, did you say to Doctor Kesner with reference to the letter written by Mrs. McConnell? Ans. I asked him [the defendant] what the devil he had those people write to me for more money for.
“Q. When you asked him that question in his office at Le Roy what reply did he make? A. Well, he said he had the damnedest time he ever had in his life; he said the child came all doubled up, . . . and it was worth more money. I told him I did n’t propose to put up any more. He said he had settled with the folks out there; that he would rather give all he got out of it than to have any trouble.”
This was after the witness had testified that he had told defendant that a girl (referring to deceased) was pregnant by him (the witness) and wanted to get rid of it; that he had contracted with the defendant to pay him fifty dollars for causing the abortion and five dollars for the board of the girl at a place where defendant told witness he could have her boarded; that in pursuance of the agreement he (the witness) had taken the girl to defendant’s office and she had in some way been taken or conveyed to the residence of one George McConnell; that he had received a letter, signed “Mrs. George McConnell,” the contents of which the witness stated to be: “It stated that she had had a terrible time; and they wanted ten dollars more, and if I could n’t get ten, why, to send five.”
The witness had also testified that at the time he took the girl (since deceased) to the defendant’s office he paid the defendant’s son, who was in the office —the defendant being absent — thirty dollars of the fifty-five dollars he had agreed to pay; that after he returned home he received an anonymous letter asking him to bring the rest of the money soon or to come and get the girl at once;- that this letter was postmarked “Le Roy,” at which place the defendant lived and had his office; that, soon after receiving the same he went to defendant’s office in Le Roy and said to the defendant: “You ought to have your boy better schooled”; that the defendant answered that he (the witness) ought to have paid it all down or left it with the girl; and that he thereupon paid to the defendant the balance of the fifty-five dollars.
We think the evidence sufficiently connects the defendant with the writing, or with the procuring of the writing, of the letters, shows the destruction of the letters, and justifies secondary evidence of their contents.
The fifth and sixth objections relate to the admission as evidence, and the refusal of the court to strikeout, on motion, a journal entry of the trial court of an order made at a prior term forfeiting the recognizance of the defendant on his failure to appear for trial. This evidence was admitted on the application of the county attorney, after the state had produced its evidence in chief and the defendant had offered his rebuttal testimony. It was within the discretion of the court to reopen the case at this time, and we cannot say the discretion was abused. It is urged that the journal entry was not properly identified. It was a record in the case on trial, and the court had a right to take judicial notice of it and to admit it as evidence to the jury without identification. It is also urged that the evidence itself was incompetent. In recognition of a long-established procedure, it was said, in The State v. Stewart, 65 Kan. 371, 69 Pac. 335:
“The facts of flight, concealment, disguise, denial of identity, change of name, and like acts, done by one accused of crime, after the commission of the offense, may be received in evidence, with all the other facts and circumstances in the case, as bearing on the question of the guilt of defendant.” (Syllabus.)
Failure to appear for trial in accordance with the recognizance is of course not conclusive evidence of flight, and is susceptible of explanation; but it is some evidence of flight, and if so may be. considered with any explanation offered as a circumstance to be considered with all other circumstances as bearing upon the ques tion of the guilt or innocence of the defendant. (1 Wig. Ev. § 276 and note.) ■
The only remaining objection that it is necessary to consider is the eighth: That the court erred in not requiring the corpus delicti to be proved. This objection is not well taken. Proof of the death was made, and there was also evidence tending to show that death resulted from septicemia, resulting from a piece of the placenta having been left in the uterus. There was strong circumstantial evidence that an abortion had been committed upon the deceased and connecting the defendant with the act. It is urged- that admissions or statements of the defendant were improperly admitted before the corpus delicti was established. While it is the better practice first to establish the fact that a crime has been committed, and then to offer evidence to connect the defendant on trial with its commission, this is not an invariable rule; nor is it always possible to proceed in this order. It was said in The State v. Davis, 48 Kan. 1, 28 Pac. 1092:
“In a criminal prosecution for murder in the first degree, where the corpus delicti cannot well be proved except by the introduction of evidence tending to show the defendant’s guilty connection with the offense, held, that evidence tending to prove both the corpus delicti and the defendant’s guilt may be introduced at the same time.” (Syllabus.)
The order of introducing evidence in a case is a matter that rests in the sound discretion of the trial court, and while logical considerations have impelled law-writers to lay down certain orders of procedure it is not reversible error if the prescribed order be not observed. It is sufficient if, from all the evidence in the case, the corpus delicti and every fact essential to establish the defendant’s guilt be proved by the evidence to the satisfaction of the jury beyond a reason-, able doubt, and such finding of the jury or verdict be approved by the trial court.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
This was an action to recover money alleged to' be due for services in drilling certain wells. Plaintiff in error was defendant below. The petition contained two causes of action, one upon a claim for $2652 for drilling three wells on the Muckey farm, and another for $1349 for drilling and cleaning a well on another farm.
The answer set up a general denial and a defense of a settlement, by the terms of which it was averred that defendant had paid a part of the amount agreed upon, leaving a balance of $1000, which defendant admitted was due, and which defendant was ready and willing to pay. Upon the trial plaintiff dismissed the first cause of action, and the trial proceeded upon the second. No amendment or change was made in the answer. Defendant offered proof that the $1000 which was admitted to be due was still on hand and that plaintiff could have it on demand. The jury found for plaintiff in the sum of $1094.60, and in answer to special questions found that no settlement had been made.
By its answer and its evidence plaintiff in error admitted that there was $1000 due plaintiff below. This leaves but $94.60 involved here, the difference between the amount of the judgment and the amount over which there is no controversy, and for that reason the motion to dismiss must be allowed. See the following authorites: Jenness v. Citizens’ National Bank of Rome, 110 U. S. 52, 3 Sup. Ct. 425, 28 L. Ed. 67; 2 Cyc. 576; 2 Cent. Dig., c. 928, § 236.
The case is dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff in error appeals from the judgment of the district court of Lyon county in awarding permanent alimony. Laura B. Galutia brought suit against Anderson R. Galutia for divorce, permanent alimony, and the custody of three minor children. The grounds for divorce alleged were extreme and repeated cruelty, gross neglect of duty, and habitual drunkenness. In November, 1903, the court granted her a decree of divorce, and awarded her the custody of two children, a girl aged seven and a boy aged two. She was awarded as permanent alimony the title in fee to a farm of 100 acres of land in Lyon county, worth $2000, with an encumbrance of $300, two years’ back taxes, and a two-year lease. The husband was awarded a small house which he owned, located on rented land two miles from Osage City, and worth $80. With the exception of some personal property of little value, consisting of household furniture and some farming implements, and a “coal-drift” which he operated upon leased land, he owned nothing. He was awarded the custody of the son aged fifteen years.
The single error assigned is that the allowance to the wife was “unjust, unreasonable, inequitable, and excessive.” We agree with counsel that no rule has been laid down by this court by which it can be determined what would be excessive alimony in any case, although the question has been before this court a number of times. (Snodgrass v. Snodgrass, 40 Kan. 494, 20 Pac. 203; Leach v. Leach, 46 Kan. 724, 27 Pac. 131; Neddo v. Neddo, 56 Kan. 507, 44 Pac. 1; Johnson v. Johnson, 66 Kan. 546, 72 Pac. 267.)
Counsel argue that from the language of these cases “it can be pretty well determined what the boundary-line is between excessive and reasonable alimony in any case,” and think the rule should be laid down that the wife in no case should be awarded more than one-half of the husband’s property, “unless the conduct of the husband had been so outrageous as would justify the award of a larger amount in the nature of a penalty.” Counsel thus find it difficult to lay down a hard-and-fast rule which shall govern in all cases. Circumstances would justify an exception even to their own rule. Courts have experienced, and probably always will experience, a like difficulty, because it is manifest that each case must depend upon its own peculiar facts. (Johnson v. Johnson, 66 Kan. 546.)
In the case at bar the husband was by occupation a coal-miner, and earned about two dollars per .day. The wife was not robust physically. During the time they lived upon the farm in question the testimony shows that to the extent of her ability she performed the labor of a man in the field. While the husband had purchased this farm before the marriage, it, was only partly paid for, and during the marriage the sum of $300 additional was paid, presumably by their joint efforts. The place cost $750, pf which he had paid prior to the marriage $150. There is yet due on the purchase-price $300, which the wife must assume. For a time the husband engaged in keeping a restaurant in Osage City, and the wife helped with her work in carrying on the business. It appears that during the winter the wife was compelled to carry coal a distance of a quarter of a mile in all kinds of weather, and that she was poorly clad. The financial circumstances of the husband were hardly such as to warrant him in furnishing her many luxuries, but the evidence shows he spent a considerable portion of his earnings and much of his time patronizing a “joint,” and left his family without some of the necessaries; that very frequently he took the little girl, aged seven, with him to town and allowed her to accompany him to the “joint,” where he would remain for hours at a time, and often did not return with her to the home until very late at night — ixi some instances as late as two o’clock in the morning.
The court below awarded him the custody of the son Carl, aged fifteen years, and the suggestion is made by counsel that in giving the farm to the wife an injustice has been done to this boy. The evidence shows that the boy worked with his father in the mines, and presumably at the time the decree was granted was able to be of some considerable assistance to his father, and to earn his own living. Besides, this court cannot presume that it will not be to his advantage rather than to his detriment that his mother be allowed this land'. In all probability his interests will be protected better than if it were divided, notwithstanding the fact that for the present the court awarded his custody to the father.
Section 5139 of the General Statutes of 1901, being section 646 of the code, requires that the award shall be just and reasonable. There are many circumstances which properly enter into the mind of the court when making such an award, such as the finan cial ability of the parties, how the property was accumulated, the conduct of the parties, their station in life, and the question of the custody and maintenance of children. It is presumed that the court below considered all these circumstances, together with all the evidence.
Under the circumstances of this case we cannot say that the award was not just and reasonable. As was said in Snodgrass v. Snodgrass, 40 Kan. 494, the court below “has had an opportunity of seeing the parties and the witnesses, and of hearing all the testimony orally, and has therefore had a better opportunity of knowing what would be exact justice between the parties than we have.” The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
William Dalton instituted this suit against Elizabeth Knight and Richard L. Knight to reform a deed purporting to convey real estate,' which they had executed to Susan Dalton, and to quiet the title of William Dalton to the real estate as against the claims made by Elizabeth Knight. On September 18, 1891, Susan Dalton, the wife of William Dalton, owned a quarter-section of land and two city lots, and on that day she and her husband joined in a conveyance of the property to her sister, Elizabeth Knight. Although there was an expressed consideration of $2000 in the deed, no consideration was in fact paid. It appears that about that time Susan Dalton had been sued on a large surety debt, and it is said that the transfer was an effort to place the property beyond danger of an adverse judgment in that litigation. There was no change of possession of the land, nor did Elizabeth Knight assert ownership under the deed during the lifetime of Susan Dalton.
On January 28, 1897, Elizabeth Knight and her husband undertook to reconvey the land to Susan Dalton, but in the deed the quarter-section of land was ihadvertently described as a part of section 32 instead of section 24. The mistake in the description was not discovered until 1899, and in the meantime Susan Dal;ton had become insane. On June 24, 1899, at the instance of the guardian of Susan Dalton, Elizabeth Knight and her husband executed another deed, purporting to convey the same land to Susan Dalton, which correctly described the land, and was intended to cure the error of description in the first conveyance.
On July 6, 1899, William Dalton contracted with Elizabeth Knight to care for his insane wife at the stipulated charge of thirty dollars per month. At the same time he made an instrument, which was in form a quitclaim deed of the property in question, to Elizabeth Knight. It recited, among other things, that the property was owned by Susan Dalton, and the contract which had been made for her care; and it released and quitclaimed his interest and title to the land, subject to a life-estate in him. On September 7, 1899, Susan Dalton died without issue and intestate, leaving her husband as her sole heir at law. Elizabeth Knight was fully paid for the care of Mrs. Dalton out of the personal-estate, but through the instruments mentioned she claimed that the title to the land was in her, subject only to a life-estate in William Dalton. He contended that there had never been an actual transfer of title to Elizabeth Knight; that his wife was the absolute owner of the property at the time of her death; that the so-called quitclaim deed was intended as a mere security for the payment of the care which Elizabeth Knight was to take of his insane wife, and that she had been fully paid for her services in that respect. He asked that the deed of Elizabeth Knight and her husband of January 28, 1897, in which there was a misdescription of the number of the section in which the land was situated, be reformed and his title quieted.
The trial court, in effect, held that reformation of the deed was unnecessary, as the subsequent deed voluntarily made by the same parties cured the error in description, and also that the quitclaim deed of July 6, 1899, was not effectual to convey any title or interest in the property and was no more than a mortgage intended to secure Elizabeth Knight for the care of Susan Dalton.
There is complaint that the petition included two causes of action in a single count, and that the motion of the defendants separately to state and number should have been allowed. It is claimed that there was a cause of action to reform one deed, and a cáuse of action to quiet the plaintiff’s title as against another. If we assume that more than one cause of action was stated, the objection appears to be wholly immaterial. It was conceded in the answer and otherwise that a subsequent deed of Elizabeth Knight had been made and delivered which correctly described the property and cured the error. If a correction of the first deed from Elizabeth Knight was necessary, it was accomplished by the later deed, and the matter of reformation was not, therefore, a contested matter.
There is a contention that the original deed of Susan Dalton was made to defraud creditors, and that neither she nor her heir should be allowed to question .the validity of that conveyance. There might be force in the claim if Dalton were seeking to set aside the conveyance, but the Knights having voluntarily reconveyed the land and placed the legal title in Susan Dalton, nothing remained in them and they are not in a position to question the motive of Susan Dalton in making the transfer.
It appears that Mrs. Knight in her claim of title chiefly relies upon the quitclaim deed executed by Will-. iam Dalton. At that time the absolute title was in Susan Dalton. He had no share in the ownership of the land, and, as the trial court rightly held, had nothing to convey. He had no interest whatever, except the possibility that he might outlive his wife and inherit from her in case the property had not been transferred. As he had no estate or vested interest in the land, his mere quitclaim, if it had been so intended, would not have affected the title nor have carried to the grantee any estate or title which the grantor might subsequently acquire. (Simpson v. Greeley, 8 Kan. 586; Bruce v. Luke, 9 Kan. 201, 12 Am. Rep. 491; Ott v. Sprague, 27 Kan. 623; Johnson v. Williams, 37 Kan. 179, 14 Pac. 537, 1 Am. St. Rep. 243; Price v. King, 44 Kan. 639, 25 Pac. 43.)
In certain cases an heir may make an assignment of a possibility of inheritance which a court of equity will enforce after the death of the ancestor, but this is not one of them. (Clendening v. Wyatt, 54 Kan. 523, 38 Pac. 792, 33 L. R. A. 278.) It is manifest that Dalton was not contracting to convey a future interest which he did not possess and which he expected to acquire at the death of his wife. The proof tends to show that the quitclaim deed was given merely to secure compliance with the contract by which Dalton agreed to pay Mrs. Knight thirty dollars per month for taking care of his insane wife, and upon that testimony the court held it to be a mortgage.
As the indebtedness to Mrs. Knight under the contract had been fully paid, her pretensions to a lien or to title to the land were without foundation, and the judgment of the court quieting Dalton’s title was rightly rendered. It is therefore affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of manslaughter in the second degree under section 16 of the crimes act, which reads as follows:
“The killing of a human being without a design to effect death, in the heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree.” (Gen. Stat. 1901, § 2001.)
In this appeal it is urged that the evidence wholly fails to sustain the verdict and judgment. The facts are few, simple, and, so far as the decisive circumstance is concerned, undisputed. They are outlined in a general way in the opinion of this court rendered upon a former appeal, in the case of The State v. Knoll, 69 Kan. 767, 77 Pac. 580. To the statement there made it is, however, necessary to add a few particulars.
The deceased was a small man, not very stout, in poor health, and a hunchback. The defendant was a much larger and stronger man. The deceased had a revolver, but made no attempt to use it. The defendant, who was unarmed, defied the deceased to shoot," and then grappled him and bore him to the floor. While upon the deceased he choked him and beat him with his fists until they were bloody. After the encounter the deceased was found to have a bruised and bleeding eye, a bruise on the back of his head, bruises on his breast, an abrasion on his back — which, however, was probably a bed-sore — and the tibia of his. left leg was broken.
A daughter of the deceased described the onset as. follows: “Then Knoll jumped up and grabbed my papa . . . and rolled him on the floor.” The wife-of the deceased gave the following testimony:
“They pushed me away, and then Alex and Knoll got together in the dining-room there, in the store. I seen Alex had a revolver, and I said, ‘Alex, give me the revolver,’ and he says, ‘No, I won’t,’ and Knoll says, ‘Shoot me if you can.’ I guess that is how it was; and then they grabbed some way, and I run to the door then to see is this help coming. ... I motioned for them to hurry up, and in this time little Anna says, ‘Mamma, mamma, he has got my papa down; he is choking him.’ And I- run through, and sure enough, there lay the revolver in the corner, and I seen right away that it was n’t discharged. Knoll was on Alex, and I gave Knoll a push away, and Alex says, ‘My leg is broke.’ ‘Now,’ he says, ‘Sponsor, what have you done? You have broke my leg — look at me.’ The blood was running from his face, and his leg was broke.”
She explained the breaking of her husband’s leg thus:
“Where the scuffle was there is a counter; and it has a scantling underneath the counter, and my idea is that he was against the counter this way [illustrating], and he got that leg in there some way, and he pushed him down — threw him down — and twisted that leg off, and John fell on him.”
She further said that she would call it a wrestle at first; that they both staggered; that her husband had been drinking; and that Knoll was “bad drunk.” The defendant’s own account of the occurrence was as follows:
“Then he went up-stairs and got his gun. I says, ‘Alex has gone to get his gun,’ and she says, ‘No, he won’t shoot.’ The house was north and south, and he turns around with his face to the south, and held up the revolver and says, ‘Now, what are you going to do ?’ And I says, ‘Shoot, shoot.’ He did n’t say anything more, but he swore like everything. And then— I don’t know just how it happened — but we grabbed, and I grabbed his left arm this way, and he had the gun this way with this hand, and we grabbed and fell down, and the gun flew away, and Mrs. Denning grabbed the gun; and he tried to hit me, and I got his hands and held them, and says, ‘Now will you quit?’ And he says, ‘No, not for any--,’ and I grabbed his arms so, and crossed them on his breast, and I hit him in the face and in the eye. Then I asked him if he got enough, and he says, ‘Yes, T give up’; and Mrs. Denning came and says, ‘John, that is enough now. What have you done? You have broke Alex’s leg.’ ”
As stated in the former opinion, “Denning was suffering from chronic alcoholism and fatty degeneration of the heart. . In consequence of his injury he was put to bed, and by reason of the inactivity thus enjoined, and his previous diseased condition, self-infection resultant from the inability properly to throw off the natural secretions ensued; from which complication he died on the 23d of March, thirty-two days after his injury. While his physical condition prior to his injury was such as would have eventually resulted in his death, the injury which he received hastened that result.” (69 Kan. 769.) These facts show clearly enough a homicide committed in the heat of passion, without a design to effect death, and without excuse or justification. But was the killing done “in a cruel and unusual manner” ?
There is, of course, no fixed standard, either of cruelty or of ■ wontedness of manner, Tby which homicides may be measured, and yet the legislature evidently attached much meaning to the distinction which it indicated by the use of the words quoted. By section 26 of the crimes act (Gen. Stat. 1901, § 2011) the involuntary killing of another in the heat of passion by means neither cruel nor unusual is made manslaughter in the fourth degree. The punishment for manslaughter accomplished in a cruel and unusual manner is confinement and hard labor in the penitentiary for not less than three nor more than five years, while that for manslaughter by means neither cruel nor unusual is confinement and hard labor in the penitentiary not exceeding three years, or by imprisonment in the county jail for not less than six months. Cruelty and an unusual manner are therefore vital and essential elements of manslaughter in the second degree. To be such, however, they cannot be discovered in the common pitilessness and pain attending homicides generally, nor in the departure from ordinary use involved in turning common weapons or common instruments or methods of accomplishment to the killing of human beings. Fatal shootings and stabbings and poundings, mutilations of flesh and fractures of bones are all cruel enough, and they cannot be said to represent the usual demeanor of men; hence something more must have been intended. Special stress and emphasis must be imposed upon the words used in order to accomplish the legislative purpose, and this may be done without departing from their ordinary signification, since they are comparative terms susceptible of variant shades of meaning.
It must be said, therefore, that in order to constitute manslaughter in the second degree there must be some refinement or excess of cruelty sufficiently marked to approach barbarity, and to make it especially shocking; and the unusual character of the manner displayed must stand out sufficiently peculiar and unique to create surprise and astonishment, and to be capable of discrimination as rare and strange.
“In a sense, every killing may be said to be cruel, and killings may be said to be unusual, but surely it was not in this sense the legislature used the terms, for, if so, they add no meaning to the section. It is not difficult to conceive the idea of a killing in the heat of passion that would be cruel or unusual, but within it would never be embraced the instance of one who in the heat of passion in the course of angry altercation struck a single fatal blow with an ordinary working implement which he had in his hand at the commencement and during the entire progress of the altercation.” (The State v. Wilson, 98 Mo. 440, 447, 11 S. W. 985, 987.)
In the case of Schlect v. The State, 75 Wis. 486, 44 N. W. 509, the defendant, who shot his antagonist with a pistol, was convicted of manslaughter in the fourth degree under a statute defining that crime as “the involuntary killing of another by any weapon, or by any means, neither cruel nor unusual, in the heat of passion, in any cases other than such as are herein declared to be justifiable or excusable homicides.”
The court said:
“There are three ingredients of the offense, which, concurring, are supposed to distinguish this one from any other criminal homicide. They are: (1) Involuntary; (2) a weapon neither cruel nor unusual; and. (3) the heat of passion. . . . What is a cruel weapon we need not define. If a pistol is a cruel weapon, then any weapon that is most likely to take life, or commonly used to take life, is a cruel one, and all weapons are cruel. It must be some other than such a common weapon that can be distinguished as cruel. It is a usual weapon, or not unusual. This is evident.”
On the other hand, a lighted kerosene lamp full of oil has been declared to be undeniably a weapon or means both cruel and unusual. (Bliss v. State 117 Wis. 596, 607, 94 N. W. 325.)
In the facts of this case it is somewhat difficult to discover a sufficient viciousness of mind on the part of the defendant, and a sufficiently grievous effect upon the deceased, to amount to that cruelty which the statute requires. Although severe pain was inflicted without necessity, and although there was not merely an indifference to such pain but a certain savage pleasure in causing it, still there is no more atrocity and no more peculiar or extreme agony than might be 'exhibited in, and result from, any drunken brawl.
Conceding, however, as upon the whole it is probably wisest to do, that the spectacle of a burly, drunken bully crushing to the floor a weak and sickly cripple, snapping a bone and mauling his flesh, is too revolting to pass for less than that extreme cruelty which the law contemplates, the court is unable to say that the manner in which it was accomplished was unusual. Nothing but unaided bodily strength and energy, used according to the common custom of fighting men, appears. The fact that a leg was broken does not change the character of the means employed to break it. Death must always result to complete the crime, and if the deceased’s back or neck had been broken, or his body had been crushed by his fall or as a result of his beating, the circumstance would not have changed the character of the offense, unless perhaps the force displayed had been so tremendous as to become phenomenal. Such an exhibition could scarcely occur with those staggering, wallowing drunkards. If, therefore, the manner of the killing in this case could be said to present an instance of such aggravated cruelty as to amount to brutality, it nevertheless occurred after the ordinary manner in which brutishness is made manifest; and, since both cruelty and unusualness must be proved, the defendant was not shown to be guilty of the crime of manslaughter in the second degree. In the case of State v. Linney, 52 Mo. 40, 42, it was said:
“We know no standard by which the court could define what constitutes cruel or unusual killing. Every killing is generally cruel, and there is no definite or usual manner of performing the act that I am aware of. Therefore, it is a subject that must be left to the jury to be determined by the testimony in the case.”
After the decision in The State v. Wilson, 98 Mo. 440, already quoted, this statement can scarcely any longer be the law, since the same court there undertook to declare a meaning for the statute and to hold a given state of facts to be without that meaning. In the case last referred to the court did no more than discharge its plain duty. Juries are not interpreters of statutes. Their function is to determine what testimony proves. By the statute under consideration the legislature has fixed a standard by which the criminality of killings is to be measured. The meaning of that statute this court is bound to know and to pronounce; and, when a given state of facts is proved, it is under the further obligation to say whether those facts are legally sufficient to meet the requirements of its definition. If the evidence be circumstantial in its character, or if it be conflicting and may be made the basis of different inferences, the court cannot interfere; but such is not this case. The court must here declare whether a killing in an unusual manner is shown, precisely the same as it was obliged to declare whether deliberation and premeditation had been proved in the case of Craft v. The State of Kansas, 3 Kan. 450, and whether murder in the second degree had been established in the case of The State v. Diebolt, 54 Kan. 129, 37 Pac. 992.
If upon another trial the facts should be substantially similar to those presented by this record, instructions under both sections 26 and 27- of the crimes act (Gen. Stat. 1901, §§ 2011, 2012) ought to be given, since the question of cruelty is a difficult one, and the defendant should be allowed the benefit of any reason-; able doubt.
The judgment is reversed and the cause remanded.
Greene, Mason, Smith, Porter, Graves, JJ., concurring. | [
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The opinion of the court was delivered by
Graves, J.:
This suit was commenced in the district court of Jackson county on May 2, 1903, to partition property belonging to the estate of Shough-ne-gish-goquah, deceased. The plaintiff, Wa-me-go, and the defendant, Nah-con-be, alias Henry Clay Bear, each claimed to have been the legal husband of the deceased at the time of her death, and therefore entitled to one-half of her estate. This claim constitutes the principal question in this case. To determine this dispute it is necessary to consider the following facts: Prior to February 8, 1887, Wa-me-go, who commenced this suit, and all the other parties named herein, were members of the Prairie band of the Pottawatomie tribe of Indians, and resided on the diminished Pottawatomie reservation, in Jackson county, Kansas. By an established custom among these Indians marriage is regarded as a relation which may be assumed or dissolved at the pleasure of the parties thereto. No formal contract or ceremony is essential — a mere mating and cohabitation as husband and wife constitute marriage. This important relation may by the same custom be terminated whenever it becomes tiresome, or when for any reason a change is desired. Separation by mutual consent is equivalent to an absolute divorce, and the parties are thereafter free to form other marital alliances, as may best suit their pleasure or convenience.
In accordance with this custom Wa-me-go and Shough-ne-gish-go-quah were married, and became the parents of two sons, George and Henry Wa-me-go. While they were living together as husband and wife the lands of the reservation were allotted among the Indian occupants thereof, and patents were duly issued and delivered in accordance with such allotment, whereby the allottees became the owners in severalty of the lands allotted to them respectively. By such allotment each of the parties named herein became the owner in severalty of a part of the land so allotted, and Shough-ne-gish-go-quah became the owner of the land in controversy.
After this allotment was completed, and patents had been duly issued and delivered to each of the above-mentioned allottees in compliance with the provisions of chapter 119 of volume 24 of the United States Statutes at Large (page 388), Wa-me-go and Shough-negish-go-quah, upon the supposition that they were still living under the tribal customs, as formerly, separated and ceased to live together as husband and wifé, and each again married, in accordance with the tribal cus tom. Thereafter Shough-ne-gish-go-quah and the defendant, Nah-con-be, alias Henry Clay Bear, lived together as husband and wife, and continued so to cohabit until her death, which occurred August 2, 1900.
The separation of the plaintiff and Shough-ne-gishgo-quah, and their subsequent marital relations as hereinbefore stated, took place by virtue of the Indian custom, and had no other sanction or authority. Afterward George Wa-me-go died, leaving his parents, both of whom were then living, as his sole heirs at law.
After the trial in the district court, and after the case-made had been settled and signed, Wa-me-go died, and the suit was revived in the name of J. P. Moore, administrator of the estate of Wa-me-go, who brings the case here, joining Henry Wa-me-go as a defendant in error.
Defendant in error Nah-con-be has filed a motion to dismiss the petition in error for the reason that the subject of the suit appears to be real estate, in which an administrator has no interest. Upon this motion the plaintiff in error claims that after the final decree in the district court, and before the order of revivor was made, all the parties agreed that the lands in controversy should be sold and the proceeds placed in the hands of the United States Indian agent until the final decree was entered in the case, and that then such proceeds should be disposed of in accordance with such final decree; and some evidence (including a conveyance of the lands executed by all the parties, including the defendant and his new wife, and duly approved by the secretary of the interior) has been presented, but no proper showing has been made upon either side of this question, and this court has nothing tangible to act upon. We therefore, in compliance with the general presumption which exists in favor of all judgments and orders of courts of general jursdiction, will assume that the district court, when it made this order of revivor, had adequate reasons therefor, and the motion to dismiss is denied.
The district court decided that the separation of the plaintiff and his wife, Shough-ne-gish-go-quah, under the custom of their tribe, was equivalent to a divorce; that her subsequent affiliation with the defendant, Nah-con-be, in accordance with such custom, constituted a valid marriage; and that the defendant was therefore entitled to the undivided one-half of her estate.
The plaintiff in error claims that after the allotment the tribal relations of these parties were severed, and they immediately became citizens of the state of Kansas and subject to its laws; and that, as this separation and marriage occurred after the allotment, their rights and duties a,s married people are to be measured by the same rule that applies to other citizens. To this contention we agree..
It is a general rule, having few, if any, exceptions, that a marriage valid where consummated is valid everywhere; and this rule has been quite generally applied to Indian marriages, where the marriage was contracted while the tribal relations of the parties continued. (19 A. & E. Encycl. of L. 1216; Earl v. Godley, 42 Minn. 361, 44 N. W. 254, 7 L. R. A. 125, 18 Am. St. Rep. 517.) This rule, however, does not benefit the defendant, for it is conceded that the marriage of Wa-me-go to Shough-ne-gish-go-quah, although an Indian marriage, was valid, and continued to be so until her death. Therefore, their subsequent separation, by mutual consent merely, and her subsequent cohabitation with Nah-con-be, were illegal and void, and conferred no right upon the defendant to share in her estate.
On February 8, 1887, congress enacted a statute (24 U. S. Stat. at L., ch. 119, p. 388) providing for the allotment of lands among Indian bands and tribes, and conferring upon the allottees the rights of citizenship in the state where the lands were located. Section 6 of this act has special application here, and reads:
“That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the state or territory in which they may reside; and no territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law.”
By this statute, congress evidently intended to elevate these allottees from the irresponsible condition of “wards of the nation” to the position of free and independent citizens of the United States and of the state of Kansas. (United States v. Bickert, 188 U. S. 432, 23 Sup. Ct. 478, 47 L. Ed. 532; Matter of Heff, 197 U. S. 488, 25 Sup. Ct. 506, 49 L. Ed. 848; In re Nowge-zhuek, 69 Kan. 410, 67 Pac. 877.)
As soon as the allotment was completed these parties became subject to all the laws of the state of Kansas, like other citizens, and were absolved from all their tribal relations. Thereafter they were bound to take notice of, and conform to, the laws of this state. If they desired a divorce, application should have been made to the courts therefor, in the usual way, and they would have found that the law interposes no unreasonable obstacle to such a proceeding. In this manner the subsequent happiness of the defendant might have been fully realized without violating the law.
The defendant and his supposed wife no doubt acted in good faith, upon the mistaken belief that they were legally married to each other; and their long, continuous cohabitation might be construed into a common-law marriage, which has been held to be valid in this state, were it not that her former marriage with the plaintiff must be held valid, as it has never been legally dissolved.
We, therefore, decide: (1) That the marriage of Wa-me-go to Shough-ne-gish-go-quah was valid; (2) that upon the completion of the allotment proceedings all the parties hereto at once became citizens of the state of Kansas, and subject to all the laws thereof; (3) that thereafter the aforesaid marriage could' not be annulled except by proceedings under the law of this state for that purpose, which were not had; (4) that said marriage existed and was in full force and effect at the time of the death of Shough-ne-gish-goquah, and at that time- Wa-me-go was her legal husband and entitled to one-half of her estate.
The facts having been agreed to, it will be proper for us to direct judgment thereon. The district court is instructed to vacate its judgment so far as the defendant, Nah-con-be, is concerned, and to decree that the plaintiff, Wa-me-go, was the surviving legal husband of Shough-ne-gish-go-quah, and entitled to one-half of her estate, and make such order as will fully carry out the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Andrew Cook drove into what was called an alley with a load of coal, and in passing over a pile of manure the wagon was upset in such a way that he was thrown upon the ground and his leg broken. He brought an action against the city of Topeka, alleging that the injury had occurred within the corporate limits; that the city had failed to maintain the alley in a safe condition for travel; and that the injury which he sustained was due to its negligence. The answer of the city was a general denial of the averments contained in the petition. A trial resulted in a verdict for Cook for $500, and the city complains and alleges several grounds of error.
The principal contention is that the evidence was insufficient to sustain the verdict of the jury. An essential fact to a recovery by the plaintiff was that the place where the accident occurred was within the limits of the city, and one which the city was bound to make safe for public travel. The denial in defendant’s answer made it necessary for Cook to prove every material fact alleged, including the one that he was injured within the boundaries of the city of Topeka. In a somewhat confused way he undertook to designate the place of injury, but no evidence was. given by him, nor by any one else, which showed that the place of injury was within the territorial limits of the city. In the testimony the place was spoken of as an alley between certain designated streets, but the location of the streets or their relation to the boundaries of the city of Topeka was not shown. The omission cannot ;be supplied by judicial notice. Courts may take judicial cognizance of the boundaries of a city established hy a public statute, but they cannot know the boundaries of cities not so established, nor that certain designated streets are in or out of the limits of a city. (Gunning v. The People, 189 Ill. 165, 59 N. E. 494, 82 Am. St. Rep. 433; Waters v. The State, 117 Ala. 189, 23 South. 28.)
Counsel for Cook, however, do not insist that the court had judicial knowledge of the location, but they do contend that the lack of testimony on the part of the plaintiff was supplied by the city. On cross-examination William Core, a witness for the defendant who admitted that he was a health officer of the city, testified that he read of the accident in question in a newspaper and went out to the manure pile and made an examination of the situation. Later the city attorney admitted that the city caused the manure pile to be removed. The visit and inquiry of the subordinate health officer, who had no general authority or power to fix the location of the streets or the boundaries of the city, were certainly not an acknowledgment that the place in question was within the city. Nor did the admission of the city attorney have that effect.
The functions and authority of a city in respect to nuisances, the spread of contagious diseases and the making of quarantine regulations are not circumscribed by its boundaries. (Laws 1903, ch. 122, §§ 35, 189.) By the last-cited section the city is authorized to take steps to abate and prevent the existence or creation of nuisances within three miles of its corporate limits. By section 35 the city is empowered to make quarantine and other regulations to prevent the introduction and spread of contagious diseases into the city, and to enforce the same within five miles of the corporate limits. As the city may give notice or take steps to remove or abate a nuisance like a manure pile outside of the corporate limits, its action in that regard or the causing of the removal of the nuisance is of itself no basis for an inference that the location of the nuisance is within the city. It appears, therefore, to have been neither shown nor admitted that the injury occurred at a place for the safety of which the city was responsible, or that it was within the cor porate limits of the city. In view of this conclusion it is unnecessary to examine the other assignments of error; but for the error mentioned the judgment is reversed and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
A motion to dismiss the proceeding in error is based upon the claim that no definite time for settling the case was fixed by the trial judge. The term of office of Judge Hazen, before whom the case was tried, expired January 9, 1905. The motion for a new trial was denied October 24, 1904, and an extension of sixty days was given to make and serve a case-made. This time expired December 23, 1904. On December 19, 1904, the time was further extended to, and including, January 15, 1905. On January 14, 1905, Judge Dana, the successor in office of Judge Hazen, made an order extending the time to make and serve the cásé-máde thirty days from that date, allowing ten days to suggest amendments, the case to be settled upon three days’ notice, and expressly provided that Judge Hazen should settle and sign the case-made within thirty days from January. 14, 1905. The case was settled and signed by Judge Hazen bn January 25, 1905, upon notice duly given in accordance with the order of extension. It is contended that this state of facts brings the case within the rule laid down in Insurance Co. v. Harn, 69 Kan. 249, 76 Pac. 822, but in that case there was no time for settling and signing fixed by the order of the judge who Succeeded the trial judge in office, and that fact ebritrolled. Here a definite time was fixed by the ordér in which the trial judge should settle and sign the case-made, and it whs properly settled and signed within that time. To the same effect see Robbins v. Mackie, 70 Kan. 646, 79 Pac. 170.
Defendants in error are real-estate agents and brought this action to recover a commission on a sale of real estate'. They claimed that defendant listéd with them his home in Topeka and requested'thíém to sell it for $4500; that they found a purchaser ready and willing to pay the price; and that when they asked him to' complete the sale he refused, and said that the property belonged to his wife and he had no authority to sell it. A jury in the court of Topeka found against him; he appealed to the district court of Shawnee county, and a jury there rendered a verdict against him for $137.50; and from that judgment he prosecutes error.
The first claim is that the court erred in permitting one Martin, the proposed purchaser, to testify to conversations which took place with one of the plaintiffs while showing him the property. It was proper for plaintiffs to prove what effort had been made to bring about a sale', and defendant was not prejudiced by the statements made by the agent in showing the property, nor bound in any way by such statements.
It is urged that there was error in refusing to permit defendant, on the cross-examination of Martin, to inquire fully into the latter’s ability to pay cash for the property. Upon cross-examination on this point he testified that he had an understanding at the bank by which his check for the full amount would be taken care of, and that when he purchased other property soon afterward his check for $5000 was paid under the same arrangement. The court refused to permit further cross-examination as to the details of this arrangement with the bank. When the objection complained of was made the court stated to defendant that, if liability was contested for the reason that a purchaser able to pay the price had not been procured, the objection would be overruled. To this defendant’s attorney simply stated that he denied everything alleged by plaintiffs. The fact appears beyond question, however, that while the defense was a general denial all liability was denied upon the ground that defendant had never listed the property for sale with plaintiffs, had not employed them to sell the property at all, was not the owner, and had no authority from the owner to sell it. This is the substance of his own testimony. After putting his refusal to complete the sale upon these grounds alone, he waived any defense based upon the inability of the proposed purchaser to pay the price in cash, and, as was said in Railway Co. v. McCarthy, 96 U. S. 258, 267, 24 L. Ed. 693, he cannot be “permitted thus to mend his hold. He is es-topped from doing it by a settled principle of law.” (Redinger v. Jones, 68 Kan. 627, 75 Pac. 997; Sandefur v. Hines, 69 Kan. 168, 76 Pac. 444.) If this had been a reason for refusing to complete the sale he should have so stated at the time, so that the other party might know what was lacking and possibly correct it.
The court permitted defendant to be asked upon cross-examination whether he had not listed this property for sale with other real-estate agents. He denied that he had. In rebuttal plaintiffs introduced two other real-estate agents, who testified that defendant had placed the property in their hands for sale as his own at the same terms upon which it is claimed he had listed it with plaintiffs. It is contended that this was error; that the questions asked were not proper cross-examination; and that it was further error to permit the collateral facts to be rebutted. The rule confining cross-examination to matters brought out in chief is always relaxed considerably when the witness is a party. The fact that defendant had listed the same property with other real-estate agents about the same time as his own, and upon the same terms, was a circumstance to some extent inconsistent with, and tending to qualify and impeach, his testimony in chief. It was not so far collateral that in rebuttal the truth could not be shown.
Two juries have found that defendant employed these agents to find a purchaser for his home, representing that he was the owner; and that, upon the agents’ producing a purchaser able and willing to pay the price, he refused to complete the sale. The evidence seems to sustain the verdict. Whether the property in fact belonged to him or to another, under the evidence he would be liable for the usual commission.
There appears to be no error in the record, and the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
Here is the situation: The plaintiff is about to acquire a quitclaim deed to 160 acres of land for $100 — one-half of the government price for preemptive lands. He goes to the office of the register of deeds and traces the title from the United States to F. E. Chaddock. The next entry is of a deed by the sheriff of the county to William Riley of all the interest of F. E. Chaddock in the lands, then a deed from Riley to Heffner, and then one from Heffner to Lydia M. Robertson. Then we imagine he says: “What is this? A deed from F. E. Chaddock and wife to C. W. Carson — the very man that proposes to sell to me! If I cannot prove the contrary, the sheriff’s deed conveyed good title to Riley. (Gen. Stat. 1901, § 4955.) I have a great bargain here if I can get this land, and I will examine further. I see by the sheriff’s deed that the sale was had in the case of Arnold & Carson against F. E. Chaddock. Now for the files in the case — why, this man C. W. Carson made the affidavit for attachment and says he is a member of the firm of Arnold & Carson, and this docket shows he got the proceeds of the sale. How about the service of the summons? There was no service, and the affidavit for publication is bad, and the judgment is void. I will just forget I saw anything but the summons returned ‘not found’ and the worthless affidavit, and I will get this land.”
In short, it does not seem possible — considering the identity of the names and the fact that the petition and affidavit for attachment in the case of Arnold & Carson against Chaddock show Carson’s relation to the case, and that he was in the public business of abstracting, presumably at the county-seat — that plaintiff could have discovered from an examination that the judgment against Chaddock was void without also discovering that his grantor, C. W. Carson, was estopped from profiting thereby, and that Carson acquired no title from Chaddock which he could assert against the purchaser at the execution sale or against the grantees of such purchaser. If so, the plaintiff is also estopped. The records of the register of deeds’ office and of the clerk of the district court put the plaintiff upon inquiry, as did also his deed from Carson; and the very records that suggested the inquiry contained all the information necessary to establish the estoppel, save alone the identity of the C. W. Carson named in the action with the C. W. Carson who was grantor in the deed to plaintiff. Abundant sources of information upon the latter question were also suggested by the papers in the clerk’s office, which the tracing of his title compelled him to examine.
It would be futile to cite authorities to sustain the decision of the court. Without conflict they all support the decision. The law does not permit a man to close his eyes to facts that he cannot otherwise fail to see for the purpose of remaining in ignorance of them, and thus acquiring an unjust advantage. Carson, by his deed from Chaddock, acquired no title to the land as against the defendant, and under the facts of this case the plaintiff, by his quitclaim deed from Carson, acquired no greater rights to the land as against defendant than Carson had.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
Julia Fineke died leaving a will in which she bequeathed her personal property in equal shares to her son, C. W. Fineke, and her daughter, Mary Bundrick, and devised her real estate, one-half to Julia, the daughter of Mary Bundrick, and one-half to her son, C. W. Fincke. The will also contained the following provisions:
“My said son, Christian W. Fincke, is to have full power to handle, take charge of and collect the rentals of said real estate until such time as it shall be ordered to be sold by the court of proper authority, as it shall hereafter appear in said instrument that he is appointed as executor of this, my last will and testament.
“All costs and expenses of administration upon my estate shall be paid from the proceeds of the sale of the said above-described real estate, and the balance shall be equally divided as above stated.”
This will was duly probated, and C. W. Fincke qualified as executor under it. His bond as such executor assured a faithful administration of the estate, and was signed by Christian Schoeller. Something more than a year after his qualification the executor presented to the probate court a petition for the sale of the real estate described in the will. The terms of the will were set forth, and the statement was made that the costs and expenses of administering the estate would amount in the aggregate to the sum of $410.17. No reference was made to any debts of the testatrix. An order of sale was granted, and further proceedings were had, resulting in a sale of the land to the executor’s bondsman for the sum of $775. The sale was approved, and an executor’s deed was issued and recorded.
Subsequently to these proceedings the executor made a final settlement of the estate. In his final account he brought forward against the proceeds of the sale of the land items of various kinds aggregating $799.91, but he acknowledged receiving rents from the real estate in the sum of $111.50, and therefore admitted having in his hands a balance of $86.59, one-half of which, or $43.29%, he said belonged to Julia Bundrick as a devisee of her grandmother’s land. This accounting was approved by the probate court, but the executor did not pay to Julia her share of the money. The account states that it was deposited in court, but she has never received it. During the time covered by the administration of the estate Julia Bundrick was a minor, and, so far as the record shows, without a guardian. She was unrepresented in the proceedings in the probate court, and she was ignorant of the sale of her property until after she became of age. After reaching her majority she discovered and investigated the facts, and brought the suit in the district court from which this proceeding in error arises.
In her petition, as it was finally amended, she related the foregoing facts, charged that at the time the petition for the sale of the real estate was filed the costs and expenses of administration amounted to only $64; that all other items.of the $410.17 were falsely and fraudulently asserted against the land; that the order of sale was procured through the fraud and imposition of the executor upon the probate court; that the sale to the bondsman was a device by which the executor might himself acquire the entire title to the property; that the final account, by means of which the proceeds of the sale were more than consumed, was fraudulently concocted; and that the final settlement was fraudulent and void. The petition contained other attacks upon the validity of the probate proceedings and the conduct of the executor and his bondsman, and other allegations essential to the relief demanded were made. Such relief consisted in setting aside the probate proceedings relating to the sale of the land, canceling the executor’s deed, placing the plaintiff in possession, decreeing partition, and awarding damages for rents and profits. After a trial the court granted substantially the prayer of the petition.
In this court the executor and his bondsman make the following assignments of error:
“(1) Said judgment was in favor of defendant in error when it should have been in favor of each of plaintiffs in error.
“(2) The court erred in overruling the motion of each of plaintiffs in error for a new trial.”
The first assignment of error amounts to nothing. It merely asserts that, the judgment was wrong. The only proposition contained in the motion for a new trial which the defendants argue in their brief is that the decision of the trial court is not sustained by sufficient evidence, and is contrary to law. That, therefore, is the limit of the present inquiry.
There is evidence in the record to show that the executor began his administration by filing a false inventory, in that he failed to list a note of $800 due from himself. After citation and a trial he was ordered by the probate court to include this note among the assets of the estate, whereupon he compromised with his colegatee for her interest in the personal property on a basis confessedly below its value. He then undertook to relieve the personal property of every kind of liability and to make the land, which had been charged with costs and expenses of administration only, bear all the obligations which the personal property alone should have paid. But apparently he was not satisfied with this. Conceiving that the surviving husband of the devisor had a one-half interest in the land, he obtained from such survivor a quitclaim deed of the real estate to himself. The deed, however, conveyed nothing, because the terms of the will had been assented to, and so he attempted to charge the sum paid therefor against the real estate. He included $100 of the amount in the “costs and expenses of administration” referred to in the petition to sell the land, and actually reimbursed himself to that extent from the proceeds of the sale. The decedent left no debts. It cost nothing to collect the assets of the estate, except those due from himself, and yet, upon his showing, the real estate — two lots appraised at $700 and $300, respectively — proved insufficient to meet the costs and expenses of administration. When the estate was finally settled he had title to all the personal property and his only bondsman had title to all the real estate.
The orders of the probate court by which this aston ishing result was accomplished appear to have been made in reliance upon the executor’s sole oath to the truth and correctness of his accounts and proceedings. In the district court he was examined as a witness in reference to his conduct. The trial judge heard all he had to offer in his own behalf and saw his demeanor while testifying. It is not necessary to discuss the testimony in detail. So far as he is concerned the court had the right to conclude that the sale of the land and the final settlement of his accounts were insufferably fraudulent and utterly unsustainable.
On behalf of the bondsman, however, it is contended that he was not a party to his principal’s fraud, or cognizant of it, and that the law enjoined upon him no duty to make inquiries, except to ascertain that the court had jurisdiction to grant the order of sale. The district court probably- believed that the bondsman was implicated in his principal’s fraud. He resided in Oklahoma at the time of the trial, and consequently his evidence appears by deposition. He was asked where he obtained the money with which to pay for the real estate, and he replied that it made no difference. He said he always had plenty of money; that he was not doing a banking business at the time of the sale; that he paid cash for his stuff, and used to carry a lot of money. He admitted that Fincke was in possession of his papers, looked after the insurance and repair of the property, and collected the rents accruing from it, but he was unable to give any accurate information as to when he had received remittances on account of rent or the amount of such remittances. When pressed for information upon those subjects he said: “That is my business,” and “I don’t remember.” When an effort was made to trace the money supposed to have been derived from the sale the executor declared that he kept it in a separate bunch, part currency and part gold, in his pocket and in his house, for some years, and gave an excited account of how completely his house was equipped with burglar-alarms.
Under these circumstances it is difficult to say that thé charge of a proceeding taking the form of a sale, but in fact manipulated by both parties for the benefit of the executor, is wholly unsupported by evidence. But, because of the view which the court takes of the nature of the relation existing between an executor and his bondsman when dealing with each other in reference to property of the estate, it is not necessary to rest a decision upon this ground alone.
By his bond the defendant Schoeller became surety to the beneficiaries of the administration proceedings for the executor’s good conduct. In the language of the books, he undertook that his principal should “do a particular act,” viz., administer his trust faithfully and without fraud. (1 Woerh. Adm., 2d ed., § 255.) This promise was original and primary on the surety’s part, and bound him from the beginning. (1 Brandt, Sur. & Guar., 3d ed., § 2.) The moment the executor by machination and deceit obtained a fraudulent order of sale, a duty was disregarded and a breach of the bond occurred. (Green’s Administratrix v. Creighton et al., 64 U. S. 90, 108, 16 L. Ed. 419.) Knowledge of the fraud was not necessary to make the surety responsible at law on his bond for the result. He is held to know every default of his principal (1 Brandt, Sur. & Guar., 3d ed., § 2); and, whenever a judgment establishing a devastavit against an executor is rendered, his surety is estopped to dispute it. (11 A'. & E. Encycl. of L. 901.)
That the liability of both the principal and surety may be determined in the same proceeding and in a court of equity, if special circumstances similar to those involved in this case exist, is now the generally accepted law of the United States. (11 A. & E. Encycl. of L. 902.) If, therefore, the relief sought in this suit were upon the executor’s bond, liability would immediately attach upon the court’s finding that the order to sell the land had been procured by the executor’s fraud. This being true, it is difficult to perceive why a court of equity and good conscience should allow the surety to enter the breach made by his principal in the citadel of the plaintiff’s rights, carry away the spoils of the fraud, and then, with the booty in his possession, urge the strict character of his contract against a demand for reparation.
So long as a surety keeps aloof from the conduct of the trust whose faithful administration he has guaranteed, and seeks no personal profit from it to himself, he may well stand upon the letter of his bond and refuse to be responsible except in damages. But the moment he abandons such an attitude and begins to deal with his own privy in the property of the estate he ought to be held to a knowledge of all facts vitiating the transaction of which his principal is aware, and ought to be stripped of all the fruits of any fraud perpetrated by his principal, precisely the same as the principal himself.
But little light is thrown upon this precise question by decided cases. In the case of Halsted v. Hyman, 3 Bradf. 426, decided by the surrogate’s court of the county of New York in 1855, it was said that the surety on an administrator’s bond may speculate in claims against the estate, provided no connivance with the administrator appear. This seems to be a dangerous rule; but, granting it to be correct, it does not reach the facts of this controversy. Other cases brought to the attention of the court relate to liability on the bond.
The problem involves the ancient antagonism between self-interest and integrity. (Michoud et al. v. Girod et al., 45 U. S. 503, 555, 11 L. Ed. 1076.) One of the purposes of the law in requiring a bond to be given is that there shall be no fraudulent conduct to repair, and every possible safeguard to this end must be erected and maintained. So long as the surety is not allowed to speculate in the assets of the estate, or is obliged to inform himself of all the facts- if he does speculate, his sole interest is in the rectitude and fidelity of his principal. Open to him a prospect of gain by freely bargaining with his principal, and he at once becomes concerned in the disregard of all those austere principles which must govern the conduct of those who undertake the management of trust estates. He becomes exposed to every temptation that would beset the executor himself if he were allowed to profit from official acts, and, if he should yield, he becomes actively enlisted in the support of fraudulent conduct against which he has engaged to save the estate harmless. No such portent should be suffered to overhang the delicate relation of trustee, surety, and beneficiary.
It is not the purpose to declare in this case that a sale of land by an executor or administrator to his bondsman can be impeached merely because of the relations of the parties, if made in good faith under an order untainted by fraud. But the court is fully persuaded that a sale by an executor to his bondsman ought not to stand if made by virtue of an order procured through the fraudulent conduct of the executor, even although the surety be ignorant of the dishonest character of the proceeding.
Since it was not possible for the plaintiff to obtain relief in the probate court, administration having been closed and the executor finally discharged, the district court had jurisdiction to entertain her suit. (Gafford, Guardian, v. Dickinson, Adm’r, 37 Kan. 287, 15 Pac. 175; McAdow v. Boten, 67 Kan. 136, 72 Pac. 529.) In view of the foregoing, it is not necessary to decide the questions raised by the plaintiff respecting the jurisdiction of the probate court to order a sale.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
A. E. Ireland was convicted in the district court of Cowley county of assaulting, beating and wounding one Harrity. He was sentenced to six months in the county jail, and appeals. The information charged in substance that defendant did unlawfully and feloniously, on purpose, and of malice aforethought, with a deadly weapon, to wit, a large and heavy rock, assault, beat and wound J. D. Harrity with intent to kill. This was a charge under section 38 of chapter 31 of the General Statutes of 1901. The verdict of the jury was as follows:
“We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find the defendant, A. E. Ireland, guilty of assaulting, beating and wounding J. D. Harrity, thereby endangering his life, with a rock, as charged in the information, without design to effect death and without malice aforethought as charged in the information, under section 42 of chapter 31 of the statutes of the state of Kansas.”
It is only necessary to consider four of the specifica tions of error. The first, which is the main contention of appellant, is that the verdict is insufficient to support a judgment. It is urged that the jury failed to specify in the verdict the degree of the offense of which they found appellant guilty, as required by section 239 of the code of criminal procedure, which reads as follows:
“Upon the trial of any indictment or information for any offense, where by law there may be conviction of different degrees of such offense, the jury, if they convict the defendant, shall specify in their verdict of what degree of the offense they find the defendant guilty.” (Gen. Stat. 1901, § 5684.)
The case of The State v. Scarlett, 57 Kan. 252, 45 Pac. 602, is relied upon. In that case the verdict made no reference to any section of the crimes act, and did not attempt to state any of the elements of the offense of which the jury found defendant guilty. The portion of the verdict in that case material to consider was in these words: “Do upon our oaths find the defendant guilty as charged in the second count of. the information.” That count of the information was under section 42 (Gen. Stat. 1901, §2027), which includes assault and battery and simple assault, and this court held that the verdict was insufficient.
The case of The State v. O’Shea, 59 Kan. 593, 53 Pac. 876, is cited by appellant. The verdict there was in these words: “Guilty of an assault with a deadly weapon with intent to kill, as charged and set forth in the information.” This court said:
“The requirement of section 239 of the criminal code that the jury shall specify in their verdict of what degree of the offense they find the defendant guilty has caused very nice and embarrassing questions to arise in a number of cases; but it may now be deemed the law of this state, well settled by a line of decisions, that the degree of offense of which the conviction is had must be determined from the verdict itself, and that the addition of the words ‘as charged and set forth in the information’ is insufficient to show that the jury intended to find the defendant guilty of every element of the principal crime charged in the information.” (Page 596.)
In the opinion (page 597) the court refers especially to the failure of the verdict to “state either that the acts were done on purpose or of malice aforethought. To constitute the crime defined by section 39 these elements are essential.” It is a fair inference from the foregoing that the court would have held the verdict in that case sufficient if it had stated all the essential elements that constitute the offense of which defendant was found guilty so that the degree of the offense could have been determined from the verdict itself.
In the present case the jury have stated the acts done which constitute the offense, and, in further aid of their verdict, have specified the section of the crimes act in which the offense is defined, so that the court is enabled to determine from the verdict itself the grade or character of the offense of which defendant was found guilty. Thus the object of the requirement of section 239, supra, is fully satisfied, and the verdict is sufficient.
Next we shall consider the errors complained of in reference to the instructions. The record in this case comprises almost 500 pages, and includes for some inscrutable reason much of the proceedings upon a previous trial, in December, 1904, where the jury disagreed, including many pages of affidavits for a continuance and all the instructions of the court upon that trial. The case was retried in March, 1905. The instructions upon the last trial take twelve pages of the record. The offense charged was an assault with a deadly weapon with intent to kill, under section 38 of the crimes act. (Gen. Stat. 1901, § 2023.) The court instructed fully under that section, and, also, under sections 42 and 43 (Gen. Stat. 1901, §§ 2027, 2028), defined murder and manslaughter and manslaughter in the first and fourth degrees, informing the jury that manslaughter in either the second or third degree did not apply, gave careful definitions of all the terms used in the three sections referred to, and the usual instructions in criminal cases, but appellant insists that there were not instructions enough. He urges that the court committed prejudicial error in refusing to instruct in reference to the second and third degrees of manslaughter; that these are included in, and are inferior to, the offense charged in the information; and that he was entitled to instructions upon these degrees.
It is the duty of the court to instruct the jury in regard to the law applicable to the facts in the case. (The State v. Ryno, 68 Kan. 348, 74 Pac. 1114, 64 L. R. A. 303.) The defendant was convicted under section 42, which reads as follows:
“If any person shall be maimed, wounded or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned shall, in cases not otherwise provided for, be punished by confinement and hard labor not exceeding five years, or in a county jail not less than six months.” (Gen. Stat. 1901, § 2027.)
This; section makes no reference to any degree of murder nor to any degree of manslaughter. It might have defined an offense which, should death ensue, would amount to murder in the first or second degree, and an offense which under other circumstances, if death should ensue, would amount to manslaughter in any of the four degrees, as defined in previous sections. But it does not do this. It provides that if certain things occur under certain circumstances, “which would constitute murder or manslaughter if death had ensued,” the person guilty shall “be punished by confinement and hard labor not exceeding five years, or in a county jail not less than six months.” Neither murder nor manslaughter is de fined under our crimes act or by any statute. Section 6 (Gen. Stat. 1901, § 1991) provides that “every murder which shall be committed” by certain means “shall be deemed murder in the first degree,” and in section 7 (Gen. Stat. 1901, § 1992) it is provided that “every murder which shall be committed” by certain other means “shall be deemed murder in the second degree.” And so manslaughter in the first, second, third and fourth degrees is defined, but nowhere in the statutes is murder or manslaughter defined.
While this court has said there are no common-law crimes in Kansas (The State v. Young, 55 Kan. 349, 356, 40 Pac. 659), we must look to the common law for the definition of the words “murder” and “manslaughter,” as used in the crimes act, when standing alone. Neither defines a crime of itself under our statutes, but nevertheless each word has a well-known meaning. “In this state, the provisions of the common law remain in force in aid of the general statutes of the state.” (Ætna Life Ins. Co. v. Swayze, Adm’x, 30 Kan. 118, 122, 1 Pac. 36.) When the celebrated case of Commonwealth v. Webster, 59 Mass. 295, 52 Am. Dec. 711, was tried these terms had not been defined by the statute of Massachusetts, and Chief Justice Shaw said: “For these, we resort to that great repository of rules, principles and forms, the common law.”
“Murder ... is the voluntarily killing any person ... of malice prepense or aforethought, either express or implied by law.” (1 East’s Crown Law, ch. 5, §2.) The American authorities usually define it as the unlawful killing of a human being with malice aforethought, express or implied. Manslaughter is the unlawful killing of a human being without malice, express or implied. (Commonwealth v. Webster, 59 Mass. 295; 21 A. & E. Encycl. of L. 131, 171.) In the common parlance of criminal law the words “express or implied” are usually omitted in both definitions.
There was no necessity in this case for any instruction in reference to any of the degrees of murder or manslaughter. The court defined murder and manslaughter, and all that was given in addition could not have prejudiced appellant. He was convicted under section 42 of an offense which, if death had ensued, would have amounted to a lesser grade of offense than those upon which he complains the jury were not instructed.
It is urged, however, that the instruction given by the court upon manslaughter in the fourth degree does not accord with the definition of that crime in sections 26 and 27 (Gen. Stat. 1901, §§2011, 2012). The court defined it as follows:
“Manslaughter in the fourth degree consists in the unlawful killing of a human being, without design to effect death and without malice aforethought, by an unlawful act of a dangerous character.”
Another instruction said:
“Or, if the defendant assaulted, beat and wounded J. D. Harrity with a rock, as charged in the information, and thereby endangered his life, and without a design to effect the death of Harrity, then such facts would have constituted the offense of manslaughter in the fourth degree, had the death of the said Harrity resulted therefrom.”
Appellant claims that instead of these the court should have given sections 26 and 27 of the crimes act, which read as follow:
“The involuntary killing of another by a weapon, or by means neither cruel nor unusual, in the heat of passion, in any cases other than justifiable homicide, shall be deemed manslaughter in the fourth degree.
“Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.” (Gen. Stat. 1901, §§2011, 2012.)
The jury might have difficulty in understanding some of the language of section 27, while the charge of the court is not susceptible of misconstruction and states the necessary elements of the offense. It is not necessary, nor is it always the better plan, in defining an offense, to use the exact words of the statute, if the court in plain language defines it, omitting none of the essential elements thereof.
It is contended further that inasmuch as the jury by their verdict found that the assault was “without design to effect death and without malice aforethought” they necessarily must have acquitted appellant of any intent. That intent is of the essence of crime is' elemental, and counsel hardly needed to cite so many authorities upon that proposition. But the jury found defendant guilty of the offense of an assault, and thereby necessarily found him guilty of the intent to commit that offense. The finding that it was without malice aforethought and without design to effect death did not acquit him of all intent.
The appellant also claims that the verdict is contrary to the evidence. We have examined the record and find that it contains abundant evidence that appellant assaulted Harrity, and struck him upon the back of the head with a rock as large as a man’s fist, wounding and staggering him. The blow was a severe one, and was struck while Harrity was standing with his back to appellant, not expecting an attack, and without provocation or warning. The jury inspected and examined the rock, and found that the assault did endanger the life of Harrity, and we cannot weigh the testimony or disturb their finding. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
James H. Wilson brought this suit to enjoin the plaintiff in error, as treasurer of Rawlins county, from selling the southeast quarter of section 36, township 2, range 31, as school-land. Wilson alleged that he settled upon the land June 11, 1904; that he complied with all the requirements of the law as a settler; that he had placed improvements upon the land to the value of $1000; and that he occupied it with his family as a home. He alleged also that the county treasurer had advertised and was about to sell the land as leased land, and that such sale would be in contravention of his rights. The district court granted a temporary injunction, and defendant brings the case to this court upon a transcript, alleging error in the ruling of the court denying his motion to vacate the temporary injunction.
The first contention is.that the district court was without jurisdiction for the reason that, when the suit was begun, there were pending in this court original proceedings in mandamus involving the same controversy. It is urged that, this court having acquired jurisdiction of the subject-matter, the court below was powerless to entertain the suit or grant the injunction while the other proceedings here were undetermined. The mandamus proceedings in this court have been disposed of at this term. (Wilson v. Winfrey, ante, p. 468.) From an examination of that case it will appear that Wilson sought by mandamus to compel defendants in that proceeding to appraise this same school-land, together with his improvements. The appraisers, however, were appointed under different proceedings, begun for the purpose of having the land sold as leased lands, under section 6341 of the General Statutes of 1901, and the peremptory writ was .denied. This suit is in no sense identical with that, except that the plaintiff is the same, and the land involved is the same. In that action plaintiff sought to compel appraisers to act. In this suit he seeks to enjoin an official act — the sale by the county treasurer. There is nothing whatever in the contention that the district court was without jurisdiction.
It is seriously urged, however, that Wilson cannot maintain this suit because he has no interest in the land in controversy peculiar to himself and different from the interest of the public generally. When a man settles upon school-land with the intention of becoming the purchaser, and erects improvements thereon of the value of $1000, including a permanent dwelling, and occupies the land as a home for himself and a large family, and says it is the only home he has, and all he has in the world in the way of property, it would seem that he has such an interest in the land, aside from that enjoyed by the public generally, as will entitle him to maintain a suit to enjoin an officer from selling it.
The petition states a cause of action, the court below had jurisdiction, and, no abuse of discretion appearing in granting the injunction, there was no error in refusing to vacate it. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
In this case three propositions are presented. First, did the transaction of June 11, 1902, between Walsh, Lockwood and Youngberg convey any interest in the property to Walsh? So far as the bill of sale and mortgage of November 29, 1901, which were delivered to Walsh, are concerned, probably not; but the bill of sale from Youngberg to Walsh, having been delivered with the intention upon the part of all the parties interested that it should give to Walsh a lien upon the property therein described, must, as we think, be regarded as equivalent to a chattel mortgage. The fact that Youngberg’s name appears as grantor is not important, since Lockwood agreed to this form of security by attaching his name thereto, and Walsh assented to it by his acceptance thereof. To hold otherwise would sacrifice the substance of the transaction for the sake of its mere form. We assume from the manner, in which this question was discussed that it is not seriously insisted upon, and pass it without further comment.
The second claim is that this bill of sale, assuming it to be a mortgage, became void as against Youngberg because it was not forthwith deposited in the office of the register of deeds as provided by law. This claim arises upon the construction of section 4244 of the General Statutes of 1901, which reads:
“Every mortgage or conveyance intended to operate as a mortgage of personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be' absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be forthwith deposited in the office of the register of deeds in the county where the property shall then be situated, or if the mortgagor be a resident of this state, then of the county of which he shall at the time be a resident.”
The bill of sale to Walsh was executed June 11, 1902, but was not recorded until November 2, 1908. The Herron mortgage, under which Youngberg claims, was executed November 21, 1903, and was recorded three days thereafter. From this it appears that the bill of sale under which Walsh claims was on record when the Herron mortgage was taken. It has been decided by this court that under the section of the statute just quoted a mortgage, although invalid while withheld from record, becomes valid whenever recorded. In the case of Cameron, Hull & Co. v. Marvin, 26 Kan. 612, 626, Mr. Justice Valentine used the following language:
“Counsel for defendant in error seem to contend that where a chattel mortgage is not recorded immediately after it is executed, and the property is not immediately delivered to the mortgagees, it is absolutely void as to all creditors whose debts have been created subsequent to the execution of the mortgage and prior to its being recorded, and prior to the delivery of the property, without reference to any lien procured upon the property by virtue of an attachment, or an execution, or otherwise. That is, they claim that such a mortgage is so absolutely void as to general creditors, whose debts have been created after the execution of the mortgage and before the recording of the same, or before the delivery of the property, that they may obtain a lien upon the property after the mortgage is recorded and after the property is delivered, by virtue of an attachment or other legal process. . . . But whether the doctrine claimed by counsel is sustained by any authority or not, we do not think it is sound.”
This language has since been cited, approved and followed in McVay v. English, 30 Kan. 368; 1 Pac. 795; Dry Goods Company v. McKee, 51 Kan. 704, 33 Pac. 594; Lead Pencil Co. v. Champion, 57 Kan. 352, 46 Pac. 696. The rule has become settled in this court that an unrecorded mortgage, although void for some purposes, becomes valid whenever recorded, and of the same force and effect thereafter as a new mortgage then executed and recorded. (Utley v. Fee, 33 Kan. 683, 7 Pac. 555, and cases cited supra.) The failure of Walsh to place his bill of sale upon record was therefore immaterial, as to the Herron mortgage, for the reason that when the latter was taken the Walsh bill of sale was on record.
It may be further mentioned that Youngberg was not a creditor within the meaning of the statute under consideration. The protection given to creditors by this law was intended to include only those having some specific lien upon, or right to, the mortgaged property, and not mere general creditors. (Cameron, Hull & Co. v. Marvin, 26 Kan. 612; Dry Goods Company v. McKee, 51 Kan. 704; Hausner v. Leebrick, 51 Kan. 591, 33 Pac. 375.)
The only case cited by plaintiff in error directly supporting a contrary doctrine is the case of Dempsey v. Pforzheimer, 86 Mich. 652, 49 N. W. 465, 13 L. R. A. 388. That case does sustain his contention, and, were it not that this state has adopted another rule, it would be a strong authority. In the case of Cameron, Hull & Co. v. Marvin, 26 Kan. 612, Mr. Justice Valentine challenged the law as announced in Michigan and elsewhere, and since that time this court has followed 'the decisions that sustain the position hereinbefore stated, as shown by the case above cited.
Again, Herron, through his agent, Phillips, had actual notice of the Walsh mortgage and knew that it was on record before the execution of the one under which Youngberg claims. Youngberg was a party to the transaction with Walsh, had full knowledge thereof, and was again duly notified at the time of the mortgage sale at which he purchased the goods. He is in no better position than Herron would be, and probably not so good. (Gagnon v. Brown, 47 Kan. 83, 27 Pac. 104.)
Finally it is urged that Youngberg is entitled to the equitable protection of this court because Walsh did not compel Lockwood to satisfy this lien upon the stock out of the proceeds of the sale of the homestead, when he might have done so. This claim for equitable protection is founded upon the idea that, as the debt of Walsh was secured by a mortgage upon the personal property in controversy, and also upon the homestead of Lockwood, and the debt of Herron was secured by a junior lien upon the personal property only, Walsh ought to have paid himself in full out of the proceeds of the homestead; and, not having done so, should for that reason have been denied a recovery in the replevin action. This is said to be a proper application of the general rule in equity that requires the holder of a mortgage upon several pieces of property, upon a part of which there is a junior mortgage, to protect the junior mortgagee by first exhausting that portion of the property not covered by both mortgages.
The case of Bank v. Taylor, 69 Kan. 28, 76 Pac. 425, is cited as an authority directly in point upon this proposition. In that case, however, the surplus in the hands of the senior mortgagee was not the proceeds of ■exempt property. Besides, the holder of that surplus ■expressly agreed with the junior mortgagee to satisfy his claim out of such surplus; but, in violation of this .agreement, he failed so to do, and surrendered the ■surplus, whereby it passed beyond the reach of the junior mortgagee, who, except for his reliance upon ;such promise, might have secured his debt. The bad faith of the senior mortgagee in this respect was the real ground upon which that case was decided.
In this case the surplus was the proceeds of exempt property, and Lockwood, the owner, not being a party, the question of exemption could not be conclusively determined. No application was made by the junior mortgagee to Walsh to use the surplus in thé way now suggested, and Walsh at no time agreed so to do. At the time of the settlement of Walsh with Lockwood this action was pending in the district court, and the personal property in controversy at that time was worth $600, while the aggregate of both liens thereon was only $455. The practical effect of the action here invoked as ordinary equity would have compelled Lockwood to surrender to Walsh and Youngberg property and cash amounting to $875 to satisfy an indebtedness of $455, the only reason therefor being to enable Youngberg to retain and enjoy the unconscionable bargain that he had obtained as the result of the fraud and force of Phillips.
It will be seen, therefore, that these cases are wholly dissimilar. The case cited was intended to prevent one person from acting in bad faith, and in violation of his agreement, to the detriment of another; while the rule, if applied in this case, would enable one person not only to act in bad faith with another, but would sanction his wrongful and illegal conduct. This would be highly inequitable.
The judgment of the district court is affirmed.
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Per Curiam:
Stephen Else owned and occupied a farm in Hamilton county, Kansas, which he exchanged with M. M. Freeman for land in Howell county, Mis souri. The trade was made by correspondence between the parties. Neither of them had seen the land traded for until after the exchange of deeds. Else executed the deed to his farm May 11, 1901. In June following he removed to his land in Missouri, but being dissatisfied therewith left immediately, and on November 12, 1901, began this suit to cancel the conveyance •of his Kansas farm and to recover possession. He •claimed in his petition that the conveyance was obtained by false and fraudulent representations concerning the Missouri land.
Stephen Else died on the 13th day of January, 1902, and the suit was subsequently revived in the names of Sarah Else, his widow and heir at law, and James Else, as his administrator.
The court made findings of fact and conclusions of law in which it found generally for the defendant, and specifically found that, of the numerous false representations alleged in the petition, only three were sustained, and they were not actionable. These three' were the following: (1) “Fences are good; (2)- place is watered by a spring, cistern, and stock pond; (3) the place is worth $2500.” Each of these statements was made to induce the trade, and was false, and known to be so when made. The court also found that the second representation was not relied upon by Else, leaving plaintiffs’ case resting entirely upon findings of fact Nos. 1 and 3, which were decided to be in the nature of opinions, rather than representations, and not actionable.
The court in its conclusions did not find either way as to the truth or falsity of the other representations; but by its general finding they must be held to have been against the plaintiffs.
Complaint is made of this failure of the court to cover all the representations by its special findings, but the failure of the plaintiffs to call the attention of the court to this omission and to request further findings relieves the court of criticism therefor. This narrows the questions for this court to consider to whether the court erred in holding that the two false representations established were not actionable. As to the representation concerning the value of the land, as used herein, the district court is sustained by practically a unanimous' line of authorities. As to the statement “fences are good,” we have not been favored by either party with a single case directly in point, and none that is closely analogous, and we have been unable after a limited search to find any. We find, however, that the meaning of the word “good” depends almost entirely upon its associations with other words and relation to the subject-matter about which it is used.
Fences vary so much in kind and condition, and what constitutes a good fence in the estimation of people depends so much upon the neighborhood where it is located and the material of which it is constructed, that to us the expression “good fence” conveys an idea so vague and uncertain that it seems more appropriate to classify it with opinions than representations. No intimation is given as to the kind of fence, nor quantity; some of the fences were concededly good, and it was not pretended that all of the fences were of that quality. Therefore, in the absence of authority, we are inclined to agree with the district court. Besides, this representation was a minor one among many others contained in the same statement, and it does not appear that any or all of them were relied upon by Stephen Else, or that the trade would not have been made anyhow. Without some evidence that this particular representation, standing alone, had some influence upon his mind, the ruling of the trial court must be sustained; and, this being the only representation left to be considered, no reason for reversal appears.
The judgment is affirmed.
Mason, J., not sitting. | [
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Per Curiam:
This is an action for damages on account of a personal injury received by the defendant in error while in the employment of the plaintiff in error as a section-hand, on April 15, 1902, in Kansas City, Mo. Action was brought against the plaintiff in error in Johnson county, Kansas, where a recovery was had, and the plaintiff in error is here asking that the judgment be reversed. There are many questions presented, but the conclusion reached by this court makes it unnecessary to consider more than one.
The injury complained of occurred at a street-crossing where there were four tracks over which trains were run; all trains going into the union depot were run on the east track, and all coming out ran on the west track.
The defendant in error, and the crew with which he was working, were engaged in removing old ties from under the west track and replacing them with new ties. Trains passed so frequently that it became a custom for the foreman of the crew to watch for trains and warn the workmen thereof in time for them to escape injury. Upon the trial the jury returned special findings of fact, answered at the request of the plaintiff, which read:
“(9) Ques. Did or did not the foreman warn and signal plaintiff to leave his work on the west track on that day? Ans. Yes.
“(10) Q. If you answer the last question ‘yes,’ then state if plaintiff understood the signal for him to go to the east between the tracks. A. Yes.”
“(12) Q. Did or did not plaintiff immediately obey said signal and warning? A. Yes.
“(13) Q. While plaintiff was going from the west track to the east track did he or did he not look in both directions and listen for approaching trains? A. Yes.
“(14) Q. If you answer the last question ‘yes,’ then state if he saw or heard any train approaching him on the east track. A. No.
“(15) Q. Did or did not the plaintiff inadvertently and unintentionally, when under more or less excitement and fear, stop too near the west rail of the east track? A. Yes.
“(16) Q. If you answer the last question 'he did,’ then state if while standing there he did or did not look and listen for approaching trains. A. He did not.”
“(27) Q. If you answer question 22 ‘yes,’ then state at what rate of speed were said engine and train of passenger-cars running over said public crossing, per hour, when the same collided with and injured plaintiff. A. Twenty-five miles per hour.
“(28) Q. At what rate of speed per hour was that freight-train then running on the west track over and upon said crossing? A. Ten miles per hour.
“ (29) Q. Were said trains then and there going in ■opposite directions? A. Yes.”
The jury returned special findings of fact, answered at the request of the defendant, which read:
“(1) Ques. Did a train strike Robert McMinn on April 15, 1902? Ans. Yes.”
“ (8) Q. By what company was said train operated and in whose employ were the persons in charge of the engine and the train No. 134?- A. Kansas City, Clinton & Springfield Railway Company.
“ (4) Q. How many tracks were at the place where plaintiff was injured? A. Four.
“(5) Q. What was the distance from the center of one main track to the center of the other main track? A. About fourteen feet.
“ (6) Q.' What was the distance between the inside rails of the two main tracks? A. About eight feet and six inches.”
“(9) Q. What was the distance in the clear for a person to stand in with a freight-car on one track and a passenger-coach on the other? A. About four feet and six inches.
“(10) Q. How long had plaintiff been working for defendant as a section-man? A. About six weeks.
“(11) Q. Did he know that defendant’s track,where he was working and had been working, was a double track? A. Yes.
“(12) Q. How frequently did trains pass going either way on defendant’s double track at the point of the accident? A. About twenty-five trains per day.
“(13) Q. Was this fact known to plaintiff? A. Yes.
“(14) Q. On which track was plaintiff working at the time he was hurt? A. West track.
“(15) Q. Which train passed upon this track? A. Freight- or drag-train.
“(16) Q. Did the transfer or freight-train pass plaintiff or arrive at the point of the accident before the passenger-train? A. It arrived and partly passed.
“ (17) Q. Did not defendant’s foreman warn plaintiff of the approach of the transfer or freight-train? A. Yes.
“(18) Q. What position did plaintiff take after being notified of the approach of the transfer or freight-train? A. Between the tracks.
“(19) Q. What position did all the other section-men, with the exception of the foreman, take with reference to the double tracks? A. Outside of the main tracks.
“ (20) Q. How near did plaintiff stand to the outgoing track as the outgoing freight-train or transfer passed ? A. About six and one-half to seven feet.
“(21) Q. How near did he stand to the east or incoming track? A. About eighteen inches.
“ (22) Q. Was there sufficient room for a person to stand between the two tracks when there was a passenger-train on the incoming track and a freight or transfer passing on the outgoing track? A. Yes.
“(23) Q. Did not section foreman Thomas Carter stand between the two tracks, when the trains were passing, without being hurt? A. Yes.
“(24) Q: How far could plaintiff have seen the incoming train if he had looked in time? A. About 150 feet.
“ (25) Q. Did plaintiff have time to take a position outside of both tracks when first notified by the section foreman? A. Yes.
“(26) Q. If plaintiff had looked in time could he not have seen the incoming train in time to have passed over the east or incoming track in time to have avoided being hurt? A. Yes.”
“(32) Q. How far could plaintiff have seen the engine of the passenger-train on the incoming track, if he had looked in time, before he was struck? A. One hundred and fifty feet.
“(33) Q. Did plaintiff see the engine of the passenger-train on the incoming track before he was struck? A. No.
“(34) Q. What movement, if any, did plaintiff make toward the incoming track at the time he was injured and just before he was struck? A. He turned.
“ (35) Q. What direction was plaintiff facing when he first took a position between the two tracks? A. West.
“(36) Q. What direction was plaintiff facing at the time he was struck? A. North.
“(37) Q. What effort did plaintiff make, if any, in order to avoid being struck? A. None; hadn’t time.
“(38) Q. Was plaintiff engaged in any work at the time he was struck? A. No.
“(39) Q. How far west or toward, the outgoing track would plaintiff have had to move in order to •clear the engine on the incoming track? A. About three feet.
“(40) Q. Was plaintiff’s hearing and eyesight good? A. Yes.
“(41) Q. What, if anything, was there to prevent plaintiff from crossing over the east track to a place of absolute safety before he was struck? A. Nothing.
“(42) Q. In how many seconds could plaintiff, in the exercise of ordinary care, after he left the west track, have moved across the east track to a place of safety? A. About ten seconds.”
“ (44) Q. Was this about the usual time for train No. 134 of the Kansas City, Clinton & Springfield railway to pass the point of the accident? A. Yes.
“(45) Q. Was plaintiff familiar with the time when train 134 of the Kansas City, Clinton & Springfield railway should pass ? A. No.
“(46) Q. How much of the transfer train or drag had passed plaintiff when plaintiff was struck? A. Half.
“(47) Q. How many cars were there in defendant’s transfer train or drag, and what was the approximate length of the train? A. About ten cars; about 450 feet.
“ (48) Q. What was the speed of the transfer train or drag? A. About ten miles per hour.
“(49) Q. Did defendant’s foreman give plaintiff notice or warning of the approach of the transfer train or drag in ample time for plaintiff to get out of the way of same? A. Yes.
“(50) Q. How much time elapsed from the time plaintiff left the west track before he was struck by train 134 of the Kansas City, Clinton & Springfield railway on the east track? A. About fifteen seconds.”
“(52) Q. Was the warning which the foreman gave to plaintiff of the approach of the drag or transfer train on the outgoing or west track given in the usual and ordinary way ? A. Yes.”
“(56) Q. If, instead of standing and looking at the freshly painted cars in the transfer train, plaintiff had been looking up the east track toward Rosedale could he have seen train No. 134 in time to have reached a place of safety in the exercise of ordinary care? A. Yes.
“(57) Q. Did plaintiff know that only northbound trains ran on the east or ‘in-bound’ track? A. Yes.”
The plaintiff in error claims that these findings of fact show that the plaintiff in the district court was guilty of contributory negligence, and that the court erred in refusing to direct a verdict for the defendant thereon. We think this contention is correct. It appears from these findings that the defendant in error was familiar with the whole situation. He knew as well as the foreman the number of trains liable to pass, the time of passing, and that those coming in would be on the east track and those going out on the west track. He knew the distance between the tracks and between cars of trains as they met and passed. On the occasion in question he was warned in ample time to have reached a place of safety. He stopped close to the track upon which he knew a train might come at any time and upon which one was then due. While heedlessly standing in this place of known danger, instead of looking in the direction from which a train was expected, as any prudent person would, he turned his back in that direction and looked the other way. He had good hearing and eyesight. He was voluntarily in a place of known danger and received an injury.
A person cannot disregard his own safety and recklessly encounter danger, and then recover damages for Injuries sustained thereby, even though the injury was the result in part of the negligence of another.
The motion of plaintiff in error for judgment on the findings of the jury ought to have been allowed.
The judgment of the district court is reversed and the court directed to enter judgment for the plaintiff in error for costs. | [
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The opinion of the court was delivered by
GRAVES, J.:
This is an application for a writ of mandamus requiring the defendants to appraise certain school-lands in Rawlins county. It is claimed that the defendants have been appointed to perform this duty, but refuse so to do.
The defendants say in their return to the alternative writ that they have performed the duty devolving upon them as appraisers, and do not feel authorized to comply with the demands of the plaintiff. The case has been submitted upon an agreed statement of facts, from which it appears that on January 7, 1901, the land was school-land and was on that day leased for five years. On June 11, 1904, the lessee paid all rent due and to become due under his lease, the lease was canceled, and he abandoned the premises. On the same day the plaintiff entered upon the land as a settler, and has erected improvements thereon, and is apparently entitled to purchase as a settler.
In January, 1904, while the lease on the land was in full force and effect, a petition was filed with the county superintendent requesting that the land be sold as leased land. Such sale would have taken place one year after the publication of notice of the filing of the petition. Publication thereof was first made January 15, 1904. On December 16, 1904, the plaintiff filed a petition to have the land appraised, so that he could apply to become the purchaser thereof as an actual settler. On the 21st day of January, 1905, the county superintendent appointed the defendants to appraise the land as leased land under the petition- filed in January, 1904, of which publication had been made.
The order by which these appraisers were appointed expressly directed them to appraise the land at its real value, which is the rule where the land is to be sold as leased land — that is, subject to the lease. When the appraisers went to view the land the plaintiff requested them to appraise the land and the improvements separately, which is the rule when the land is to be sold to an actual settler, but they refused so to do. The appraisers reported their appraisement as directed, and filed the same in the probate court. The plaintiff afterward requested them to make an ap praisement of the land and the improvements separately, which they refused and still refuse to do, and he now asks this court to compel the defendants to make such appraisement.
Apparently the plaintiff is a settler on the land and entitled to purchase the same as such. No steps seem to have been taken, however, to perfect that right. No appraisers have been appointed under his petition ■to make the appraisement which the law requires. The defendants have no authority under their appointment so to do.
Mandamus will not lie to enforce the performance of official duty unless the duty sought to be enforced be clearly one that is incumbent upon such officer to perform. (19 A. & E. Encycl. of L. 725; National Bank v. Hovey, 48 Kan. 20, 28 Pac. 1090; Swartz v. Large, 47 Kan. 304, 27 Pac. 993; Cassatt v. Comm’rs of Barber Co., 39 Kan. 505, 18 Pac. 517.) It was not the duty of the defendants to make the appraisement desired by the plaintiff. They have fully performed the duty required of them under their appointment.
If the plaintiff has any remedy by mandamus it is to compel the appointment of appraisers to make the appraisement desired. The writ is denied. .
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
This was an action to recover damages for a breach of the covenants of a warranty deed. The transaction was evidenced by a contract of sale, dáted April 8, 1902, which specified the subsequent steps to be taken by each party in completing the conveyance. The defendants in error were grantors, and the plaintiff in error grantee.
The contract of sale, together with $1000 cash paid by the grantee upon the purchase-price of the land, was placed in escrow with an El Dorado bank to await the performance of the subsequent requirements of each party. It was stipulated that the grantors should furnish an abstract of title and execute a warranty deed to the land, and place them in the bank with the contract, there to remain until August 1, 1902, when the grantee should pay the remainder of the purchase-money and receive the deed and abstract of title. These conditions were performed by each party, and the deed and abstract of title wére duly delivered to the grantee as stipulated.
At the date of the contract of sale the land was in the possession of tenants. The cultivated portion was occupied by one Arnall, and the pasture-lands by one Pirtle. Arnall paid his rent tó the grantee, and Pirtle paid to the grantors. The grantee began this action to recover damages as a substitute for the Pirtle rent.
The case was tried to a jury. The controversy on the, trial was whether, if a recovery could be had at all, it should be for rent accruing from the date of the contract of sale, or from the date when the grantee actually received the deed, to November 1, 1902, when the Pirtle lease expired. The case was presented to the jury upon both theories, and the amount returned in the verdict indicated that it was intended to cover the longer period. The court, on a motion for a new trial, decided that the finding should have been for the shorter period, and thereupon Offered to deny the motion if the plaintiff would accept an amount stated, being the value of the rent after August 1, 1902; if not, the court indicated that it would grant a new trial. The plaintiff declined the offer and the motion was allowed.
This court has held that a trial court, by such an offer, approved the verdict in all respects except the amount. (McCubbin v. City of Atchison, 12 Kan. 166.) Plaintiff urges that the amount found by the jury is unquestionably correct, and that under the above decision he is entitled to judgment for that sum. But we think the amount is not conclusive. Aside from the question whether or hot the jury intended by this amount to cover the rent from April 8, 1902, to November 1, 1902, is the further inquiry of whether or not the sum returned is the proper amount, under the evidence, for that period. The evidence upon this last question was conflicting. The court did not approve this finding. It expressly refused to do so, and gave no reason for its rejection other than that the afnount was not correct. If the court had placed its refusal to accept the verdict upon the specific ground that it covered the wrong period, -another and different question would be presented. We do hot feel that the amount stated in the verdict as the reasonable value of rent after April 8, 1902, has been fixed with sufficient certainty to justify the direction of a judgment therefor, and therefore we cannot say the court erred in granting a new trial. Its ruling in that respect is affirmed.
We might let the case rest here,.but, as a new trial is necessary and the legal questions involved are controlling, we deem it best to decide them now, arid thereby save the parties the delay and expense of further litigation in this court. The trial court erred in holding that the grantee could recover rent only from the date he actually received the deed — August 2, 1902. Where land is sold by a transaction involving a contract of sale containing stipulations for the subsequent performance of specified acts by each of the parties, pending which performance the contract is placed in escrow, and afterward in compliance with such escrow the grantor executes and delivers his deed, to be also held in escrow with the contract and delivered to the grantee when payment has been made by him as stipulated, and all the provisions of the escrow are performed and the deed delivered to the grantee accordingly, such delivery completes the conveyance, and the deed relates back to the date of the contract of sale and is not limited to the date when actual delivery is made to the grantee.
This doctrine of relation is of ancient origin, and has always been applied, both at law and in equity, to meet the requirements of justice, to protect purchasers, and to effectuate the intent of the parties to contracts. (18 Vin. Abr. 286-293; 2 Greenl. Cruise on Real Prop. 441; 24 A. & E. Encycl. of L. 275; Welch v. Dutton et al., 79 Ill. 465; Young v. Guy, 87 N. Y. 457; Sutherland v. Goodnow et al., 108 Ill. 528, 48 Am. Rep. 560; Nellis v. Lathrop, 22 Wend. [N. Y.] 121, 34 Am. Dec. 285; Thompson v. Spencer, 50 Cal. 532; Cummings v. Newell, 86 Minn. 130, 90 N. W. 311; Davis v. Clark, 58 Kan. 100, 48 Pac. 563.)
It. has been held that whether by this rule of relation the operation of the deed will be carried back to the date of the contract of sale, to the execution of the deed, or only to its actual delivery to the grantee, will depend upon the intent of the parties as shown by the transaction. (1 Devlin, Deeds, 2d ed., § 262.) But whatever test may be applied to this case, the result will be the same. It is necessary to protect the grantee in the enjoyment of the property which he has bought and paid for, and it is necessary to carry out the manifest intention of the parties that this deed should relate back to the date of the contract of sale.
The grantors purchased the land in controversy less than a week before the sale in question. The grantee paid interest on the purchase-price from the date of the contract. A vendor, in the absence of express stipulations therefor, cannot receive interest on the purchase-price and the rents also. (29 A. & E. Encycl. of L. 708; Siemers v. Hunt, 28 Tex. Civ. App. 44, 65 S. W. 62, 66 S. W. 115.) The grantors knew when they executed the contract of sale, and on May 6, 1902, when they placed their deed with full covenants of warranty in escrow, to be delivered August 1, 1902, that tenants were on the land, but no reservation or suggestion was made that they expected the rent. It must be presumed that they intended to convey by their deed every right which its covenants covered.
Placing a deed in escrow practically withdraws the land from the market, and renders the grantor powerless to convey or encumber it, so far as the vendee is concerned. After the grantee had paid the purchase-money in full, as agreed, including interest thereon from the date of the contract of sale, it would be manifestly unjust to deprive him of the rent conveyed by the covenants of his deed. We conclude that under the facts and circumstances shown in this case the plaintiff is entitled to receive rents from the date of the contract of sale, April 8, 1902.
■ The order of the court granting a new trial is affirmed, with direction that on the further trial the views herein expressed be followed.
All the Justices concurring. | [
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Per Curiam:
This case is in all respects similar to Ogg v. Glover, ante, p. 247, except that the office involved is that of police judge. Applying the principles announced in that case to a count of the ballots in this gives the plaintiff 598 votes and the defendant 570. Judgment is therefore rendered for the plaintiff. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a proceeding begun in the probate court to obtain a distribution of the estate of Kate Brandt. She was killed by her husband on March 14, 1903, for the purpose of obtaining her property, and in a prosecution for the offense he was convicted of murder in the first degree and is now imprisoned in the penitentiary under a death sentence. She had no children, and under ordinary and normal circumstances her husband would inherit her estate. She left a personal estate said to be worth about $1000, and the husband assigned and transferred his interest in it to G. A. Bailey, the attorney who defended him against the criminal charge. Her brothers and sisters, the nearest blood relatives living, claimed the estate, alleging that the husband’s crime disabled him from taking any interest in it. In the probate court, and also in the district court, to which the case was ap pealed, it was held that the husband was the only heir of his deceased wife; that her estate descended to him ; and that Bailey was entitled to it under the assignment.
The plaintiffs complain, and insist that a murderer should not be permitted to inherit the estate of his victim. The descent and devolution of property is regulated by statute. Section 2521 of the General Statutes of 1901 provides: “If the intestate leave no issue, the whole of his estate shall go to his wife; and if he leave no wife nor issue, the whole of his estate shall go to his parents.” Section 2529 provides: “All the provisions hereinbefore made in relation to the widow of a deceased husband, shall be applicable to the husband of a deceased wife. Each is entitled to the same rights or portion in the estate of the other, and like interests shall in the same manner descend to their respective heirs.” Section 2532 provides that “the personal property of the deceased not necessary for the payment of debts, nor otherwise disposed of according to law, shall be distributed to the same persons and in the same proportions as though it were real estate.” It is conceded that the statute is general and inclusive in its terms, but it is said to be inconceivable that the legislature intended to give an estate to a husband who murdered his wife to obtain it. It is argued that the letter of a statute should not prevail over its sense and spirit, and that a literal interpretation of the statute in question would in effect be giving property as a reward for crime. It is said that the legislature is presumed to have enacted the statute in question having in view the maxims of the common law that no man shall take advantage of his own wrong, or acquire property by his own crime, or use the law to accomplish his unlawful purposes, and, therefore, that the courts are justified in imputing a different intention to the legislature and excepting murderers from the operation of the statute.
These considerations would have great weight if there were ambiguity in the statute, or if it were the province of the court to settle the policy of the state with respect tp the descent of property or as to the character and extent of punishment which should be inflicted for the commission of crime. That any one should be given property as the result of his crime is abhorrent to the mind of every right-thinking person, and is a strong reason why the lawmakers, in fixing the rules of inheritance and prescribing punishment for felonious homicide, should provide that no person shall inherit property from one whose life he has feloniously taken. A statute of this character has been enacted in at least one state. (Iowa Code, 1897, •§ 3386; Kuhn v. Kuhn, 125 Iowa, 449, 101 N. W. 151.) The horror and repulsion caused by such an atrocity, however, do not warrant the court in reading into a plain statutory provision an exception which the statute itself in no way suggests. If the statute were of ■doubtful meaning and open to two constructions there might be room to infer that the legislature intended the one which would be most reasonable and just in its application. As will be observed, however, the rule of inheritance is explicit, and the statute contains no hint that any one is to be excluded on account of misconduct or crime.
In Ayers v. Comm’rs of Trego Co., 37 Kan. 240, 15 Pac. 229, the court was asked to read into a statute a meaning which its words did not import, and the reply was made: “We have not the right to change the statute where it is clear and free from ambiguity, by •any judicial interpretation.” In the recent case of Railway Co. v. Grain Co., 68 Kan. 585, 75 Pac. 1051, it was held that the fraud and misconduct of one party which prevented another from bringing an action did not create an implied exception to the statute of limitations; that, the legislature having made no exception on that ground, none could be made by the courts; that it was the duty of the courts to administer the law regardless of particular cases of hardship; that the function of changing a law because it works unjustly or oppressively belongs to the legislature, and for a court to engraft an exception upon a statute would be judicial legislation.
The argument that a literal interpretation of the statute would in effect encourage crime and contravene public policy is no reason why the courts should disregard a plain statutory provision, nor would it justify them in determining the policy of the state upon the question. The right to determine what is the best policy for the people is in the legislature, and courts cannot assume that they have a wisdom superior to that of the legislature and proceed to inject into a statute a clause which, in their opinion, would be more in consonance with good morals or better accomplish justice than the rule declared by the legislature. It has been said that “the well-considered cases warrant the pertinent conclusion that when the legislature, not transcending the limits of its power, speaks in clear language upon a question of policy, it becomes the judicial tribunals to remain silent.” (Malinda Deem et al. v. Thomas Millikin et al., 6 Ohio C. C. 357, 360.)
The statute makes nearness of relationship to the decedent, and not the character or conduct of the heir, the controlling factor as to the right of inheritance. Besides, the penalties for felonious homicides are definitely prescribed in another statute, and the loss of the inheritable quality or the forfeiture of an estate is not among them. If the court should hold that the loss of heirship and the forfeiture of an estate were a consequence of Brandt’s crime, it would have to ignore the legislative rule governing the descent of property, and would, in effect, impose a punishment for his crime in addition to that prescribed by the only body authorized to declare penalties for violations of law. Nor is it easy to attribute to the legislature an intention to take from a criminal the right to inherit as a consequence of his crime, since the constitution provides that no conviction shall work a corruption of blood or forfeiture of estate. (Bill of Eights, § 12; Gen. Stat. 1901, § 94.)
The cases relied on by plaintiffs in error as authorities against the right to inherit are those involving insurance policies, wills, and the like. (Riggs et al. v. Palmer et al., 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819; Ellerson v. Westcott, 148 N. Y. 149, 42 N. E. 540; Lundy v. Lundy, 24 Can. S. C. 650; N. Y. Life Ins. Co. v. Armstrong, 117 U. S. 591, 6 Sup. Ct. 877, 29 L. Ed. 997; Schmidt v. Northern L. Asso., 112 Iowa, 41, 83 N. W. 800, 51 L. R. A. 141, 84 Am. St. Rep. 323; Box v. Lanier, 112 Tenn. 393, 79 S. W. 1042, 64 L. R. A. 458.)
There is a manifest difference, however, between private grants, conveyances and contracts of individuals and a public act of the legislature. It might be that a person would not be permitted to avail himself of the benefits of an insurance policy the maturity of which had been accelerated by his felonious act. Many considerations of an equitable nature might affect the operation or enforcement of a grant or contract of a private person which would have no application or bearing on a statute enacted by the legislature. So far as the descent of property is concerned, the courts are practically unanimous in holding that all the power and responsibility rest with the legislature. They have spoken with one voice in opposition to the exclusion of an heir from taking an estate on account of crime, where the statute in plain terms designates him as one entitled to inherit.
In Owens v. Owens, 100 N. C. 240, 6 S. E. 794, the court had under consideration the question whether a wife who had been convicted of being accessory to the killing of her husband was disabled from taking the share of the estate left by the deceased which the statute gave to her. It was said:
“We are unable to find any sufficient legal grounds for denying to the petitioner the relief which she demands ; and it belongs to the' lawmaking power alone to prescribe additional grounds for the .forfeiture of the right, which the law itself gives, to a surviving wife.
“Forfeitures of property for crime are unknown to our law, nor does it intercept for such cause the transmission of an intestate’s property to heirs and distributees, nor can we recognize any such operating principle.” (Page 242.)
In Carpenter’s Estate, 170 Pa. St. 203, 32 Atl. 637, 29 L. R. A. 145, 50 Am. St. Rep. 765, it was held that a son who murdered his father for the purpose of securing the father’s estate was entitled to take the estate under the intestate laws, and that his crime did not destroy his right of inheritance. Among other things the court remarked:
“The legislature has never imposed any penalty of corruption of blood or forfeiture of estate for the crime of murder, and therefore no such penalty has any legal existence. . . . The intestate law in the plainest words designates the persons who shall succeed to the estates of deceased intestates. It is impossible for the courts to designate any different persons to take such estates without violating the law. . . . It is argued however that it would be contrary to public policy to allow a parricide to inherit his father’s estate. Where is the authority for such a contention ? How can such a proposition be maintained when there is a positive statute which disposes of the whole subject? How can there be a public policy leading to one conclusion when there is a positive statute directing a precisely opposite conclusion? In other words when the imperative language of a statute prescribes that upon the death of a person his estate shall vest in his children in the absence of a will, how can any doctrine, or principle, or other thing called public policy, take away the estate of a child and give it to some other person? The intestate law casts the estate upon certain designated persons, and this is absolute and peremptory, and the estate cannot be diverted from those persons and given to other persons without violating the statute. There can be no public policy which contravenes the positive language of a statute.” (Page 208.)
In Malinda Deem et al. v. Thomas Millikin et al., 6 Ohio C. C. 357, it was held that “the statute of descents provides in clear terms that where one dies intestate and seized in fee of lands, they shall descend and pass to the children of such intestate; and the courts cannot, upon considerations of policy, so interpret the statute as to exclude from the inheritance one who murders such intestate.” (Syllabus.) This decision was affirmed by the supreme court of Ohio upon the reasons given by the circuit court. (53 Ohio St. 668, 44 N. E. 1134.)
In Shellenberger v. Ransom, 41 Neb. 631, 59 N. W. 939, 25 L. R. A. 564, the supreme court of Nebraska first held that one who killed an ancestor could not share in an estate (31 Neb. 61, 47 N. W. 700, 10 L. R. A. 810, 28 Am. St. Rep. 500), but upon a rehearing and a fuller consideration the court changed its position and declared that where the statute of descents contains no exception on account of crime the courts can add none. In determining the question the court, at page 643, quoted approvingly from Bosley v. Mattingly, 53 Ky. (14 B. Mon.) 89, 90, as follows:
“When the law is clear and explicit, and its provisions are susceptible of but one interpretation, its consequences, if evil, can only be avoided by a change of the law itself, to be effected by legislative, and not judicial, action.”
In meeting the suggestion that to allow a person to gain property by intentional homicide is shocking to the senses, and that the legislature would necessarily have shared in a feeling of abhorrence against such a rule if they had given it attention when the act was passed, the court remarked:
“This is no justification to this court for assuming to supply legislation, the necessity for which has been suggested by subsequent events, but which did not occur to the minds of those legislators by whom our statute of descent was framed. Neither the limitations of the civil law nor the promptings of humanity can be read into a statute from which, without question, they are absent, no matter how desirable the result to be attained may be.” (Page 644.)
In the case of Kuhn v. Kuhn, 125 Iowa, 449, it was contended that public policy forbids a party from deriving advantage from a criminal act, but the answer made by the supreme court of Iowa was:
“The public policy of a state is the law of that state as found in its constitution, its statutory enactments, and its judicial records. (People v. Hawkins, 157 N. Y. 12, 51 N. E. 257, 42 L. R. A. 490, 68 Am. St. Rep. 736.) And when such policy, touching a particular subject, has been declared by statute, as in this case, it is limited by such statute, and the courts have no authority to say that the legislature should have made it of wider application.” (Page 453.)
In Box v. Lanier, 112 Tenn. 393, which is cited as an authority against the husband’s right to inherit, there was a contest over the proceeds of an insurance policy, and, while it was held that the husband who feloniously killed his wife was incapacitated to take her choses in action, it was determined upon the rules of the common law, and not upon a statute of descents. The majority of the court recognized that the weight of authority, as well as the better legal reasoning, supported the view that an unqualified statute casting descent should be given effect, and in the opinion it was said:
“For it may be true that it would be a stretch of judicial authority to hold that an unambiguous statute providing a line of devolution of property should be interpreted to mean that this line was to be broken upon the felonious homicide of the ancestor or testator by the one next in succession.” (Page 407.)
The court then proceeded to determine that no statute existed in the state governing the devolution of property in such cases, and based its judgment on common-law principles entirely. (See, also, 41 Cent. L. J. 377.)
Although a theory cutting a murderer out of any benefits resulting from his crime appeals to the court’s sense of justice, it cannot be overlooked that the legislature has the power to declare a rule of descents; it has done so in language that is plain and peremptory, and no rule of interpretation would justify the court in reading into the statute an exception or clause disinheriting those guilty of crime.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
An information, otherwise sufficient, presented, signed and sworn to by the county attorney, is not vulnerable to a motion to quash because the clerk of the district court, who administered the oath, after naming the county, omitted to follow such name with the word “county.”
The denying of an application to delay a trial until a party might present affidavits showing what absent witnesses would testify, not excepted to, cannot be considered by this court. In the present case no exceptions were taken to the denying of the application.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This suit was brought by plaintiff in error in the district court of Bourbon county. In a very lengthy petition, embracing over twenty causes of action, it was alleged in substance that the Beatty Oil Company was incorporated under the laws of Texas, with its principal office and place of business at Beaumont, Tex., giving the amount of its capital stock, etc.; that its directors had done many specified wrongful acts in fraud of the rights of the stockholders, and particularly had misappropriated, in part to their own use, a large amount of the funds of the company; that plaintiff was a stockholder in the company, and had made charges and specifications of such wrongful acts and had caused the same to be served upon a number of persons, including the two served with summons in this suit, who, it was alleged, were directors of the company; that after such notice the board of directors, instead of attempting to recover the funds alleged to have been misappropriated, attempted to justify the wrongful acts.
The prayer for relief was, in substance, that the defendants, other than the Beatty Oil Company, be adjudged to be indebted to the Beatty Oil Company in the sum of $161,300, and that, if the company fail to appear, the court “shall appoint one of its officers, or some other appropriate person, as trustee for said company to receive and hold whatever money may be found to be due said company,” etc.
It was conceded in court that neither the company nor any officer or director thereof had been served with summons, but it was shown that two defendants, residents of Bourbon county, Kansas, who were alleged to have been directors of the company at the time of the alleged misappropriations, had been served with summons, and these defendants and two others, who were alleged to have participated in the wrongful transactions, appeared- and filed separate demurrers to the petition on several grounds, among which was “that it appears upon the face of said second amended petition and the amendment thereto that there is a defect of parties defendant therein.”
The demurrers were argued and submitted without any request for time to bring in the corporation. Indeed, it seems to have been conceded, tacitly or ex pressly, that the corporation could not be served with summons, and would not voluntarily appear. The prayer in the last petition for the appointment of a trustee, and all the subsequent proceedings, lead to this conclusion. The demurrers were sustained, and the plaintiff brings the case here for a review of that ruling.
In the brief of plaintiff it is claimed that the company is insolvent; that if the suit had been instituted in Texas there were no directors who were solvent that could have been summoned; and that the defendants in Kansas were the only solvent persons who were responsible for the alleged wrongs. But none of these facts were alleged in the petition. There were no averments in the petition which, taken as true, would indicate that the plaintiff could not be accorded full redress in the courts of Texas, not to mention the proper circuit court of the United States.
So far as a corporation may be said to have a domicil or a residence, the same is located for the defendant corporation, by the allegations of the petition, in the state of Texas, and it has the same right to a hearing in the proper forum of that state as an individual in a like case would have.
The general rule that in suits of this kind the corporation is a necessary party is admitted, and we are not cited to any case where a court of equity permitted an exception; but it is urged that a court of equity may make a new rule, or even invent a new remedy, whenever necessary to the administration of justice, and that, under the circumstances, the court below should have admitted the exception in this case. If this contention be admitted so far as the power of the court is concerned, we cannot, as before indicated, see that the necessity existed. It is plain to be seen that, should the exception be admitted on the showing in this case, the occasions for invoking it would soon become so frequent as almost to substitute the exception for the general rule.
Nor does the suggestion that a trustee be appointed for the defendant corporation help the situation. The corporation has a right to be heard which the court cannot take from it. The ruling of the court sustaining the demurrers is sustained and the case is remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The defendant in error, as the real plaintiff, though not nominally, in the court below, filed an answer and cross-petition setting up a note and mortgage, and asked judgment for a mortgage lien and foreclosure of the mortgage on the land described therein. He also alleged that the mortgage was executed by one Barnes, who was the owner of the land at that time, and that by successive assignments he became and was the owner and holder of the note and mortgage.
Kibby, in answer to the cross-petition, denied “all the allegations contained in the cross-petition . . . inconsistent with the plaintiff’s [Kibby’s] ownership” of the land. This did not put the ownership of Barnes in issue.
At the trial Gibson, over the objections of Kibby, introduced in evidence the original note and mortgage under which he claimed, with the indorsements. None of these objections was-well taken. Gibson might well have rested his case here, but he proceeded to introduce in evidence a tax deed, and quitclaim deeds tending to show that Kibby’s title was derived from the tax deed, but introduced no evidence tending to show any infirmity in the tax deed. Thereupon he rested his case, and Kibby demurred to the evidence on the ground that it was not sufficient to justify a judgment in favor of Gibson. The court overruled the demurrer and rendered judgment, giving Kibby a first lien for taxes, of which there was no evidence unless it was the tax deed, and also adjudged Gibson a second lien for the amount of the note and interest, and ordered the foreclosure of the mortgage and sale of the land. Kibby brings the case here.
The evidence shows that Kibby obtained all the title acquired through the tax deed by the grantee therein, and, if the tax deed is valid, it defeats Gibson’s mortgage lien on the land. No fact tending to show that the deed was void was shown in the evidence, and no infirmity on the face of the deed is suggested. We did not feel called upon to do so, but we have scrutinized the face of the deed and have failed to discover any-, thing that would render it void, and there is no admission that it is void.
As' the case stands, then, Gibson offered evidence which, uncontroverted, showed his right to obtain the relief for which he prayed. He then proceeded to offer evidence which, prima facie, defeated his right of recovery, and the demurrer to his evidence as a whole should have been sustained.
The party upon whom rests the burden of the issues may, if he so elect and there be no objection thereto, proceed to offer evidence upon all the issues in the case, pro and con. If, however, he produces evidence which, unrebutted, defeats his cause of action, or if he does his opponent the service of setting up a straw man and omits to knock it down, he does so at his peril. He may safely follow the order of trial prescribed by section 275 of the code of civil procedure (Gen. Stat. 1901, §4722).
The judgment of the district court is reversed and the case remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Foth, C.:
This case is here because, since the 1965 act (Laws 1965, ch. 278.) fixing the age of adult responsibility for males at eighteen years, Kansas has utterly failed in its responsibility to the troubled 16 and 17 year old boys it now classifies as juveniles.
The dilemma our state faces in dealing with these young men was pointed out by this court six years ago in State, ex rel., v. Owens, 197 Kan. 212, 416 P. 2d 259, where we first considered the act which extended the juvenile age from 16 to 18. In that case we recognized and approved the constitutionality of the parens patriae approach to offenders in this age group, but struck down that part of the act authorizing the commitment of juveniles to the Kansas state industrial reformatory.
Commitment to what is clearly a penal institution was found to be incompatible with the concern expressed elsewhere in the juvenile code for the individual needs of the errant boy. It would, additionally, result in penal servitude for which a criminal conviction conforming to due process would be constitutionally required. Commitment to the boys industrial school (B. I. S.), an institution having far different aims and characteristics from the reformatory, was- said to have neither of these drawbacks. It was partly because of the availability of B. I. S. that we upheld the 1965 act.
When the legislature spoke in 1965, and when we wrote in Owens a year later, it was assumed by all that resources and a program would soon be made available to meet the clearly recognized needs of this age group. The 1965 act conditioned their commitment to B. I. S. on the prior approval of the director of the division of institutional management, the state welfare department official having supervisory authority over that and other similar state institutions. In 1969 the legislature said that such approval would be required only for commitments made prior to July 1, 1971 (Laws 1969, ch. 224, § 4), while in 1971 it extended the approval requirement until July 1, 1973 (Laws 1971, ch. 151, §2).
By these later provisos a self-imposed deadline for state action was set, and then extended; the first perceptible step to meet it has yet to be taken.
One product of such inaction is this case, in which the courts find themselves at a loss for what to do with three young men who have gotten themselves into serious trouble. Edward Bobby Patterson, Terry Lee Payne and Donald Wendell Dyer are all over 16 but under 18. They stand accused of conduct which, if committed by an adult, would be first degree murder. The homicide apparently happened during a liquor store robbery.
Proceedings were initiated in the juvenile court of Wyandotte county to have each adjudged a delinquent child. As a preliminary matter that court held a hearing and on November 3, 1971, found that none of them was “amenable to the care, treatment and training program available through the facilities of the juvenile court,” and therefore that none was “a fit and proper subject to be dealt with under the Kansas juvenile code.” (K. S. A. 1971 Supp. 38-808 [&].) They were ordered to be prosecuted as adults, and as such they would be liable for life sentences if convicted.
In the juvenile judge’s findings he said:
“. . . Since the charges would be first degree murder under the definition of our Criminal Laws, and since it is the belief of this Court that if first degree murder is proved it should not be a parolable or probatable offense. It is therefore the finding of the Court that these youngsters are not amenable to the care, treatment and facilities available to this Juvenile Court, and that these three juveniles, Terry Lee Payne, Edward Bobby Patterson, and Donald Wendell Dyer, are not fit and proper subjects to be dealt with under the Kansas Juvenile Court Code in this particular procedure. I am not finding that they should not in the future be dealt with as juveniles; in other words, that this finding applies only to this alleged crime; . . .”
The juvenile court thus expressly eschewed its statutory option of “attaching” its finding to future acts — it deliberately refrained from committing these boys forever to the adult courts, as it could have done under K. S. A. 1971 Supp. 38-808 (b). The clear implication is that they were not thought to be incorrigible or uncorrectable by the juvenile court, but only that they stood charged with an offense regarded as too serious to merit any treatment which did not feature confinement as a primary ingredient.
The boys appealed to the district court, where a consolidated hearing was held on the “amenability” of all three. The state produced only one witness, Patrick J. Finley, director of court services for the Wyandotte County juvenile court. (He had been the only witness for either side in the juvenile court.) The crucial aspect of his testimony was that B. I. S. would not take any of these boys because of their age and the nature of the crime charged; this allegation was based on a conversation he had had with the superintendent of the school. From this he concluded that probation was the only course available if they should be handled through the facilities of the juvenile court. The nonavailability of B. I. S. was his sole consideration in recommending a finding that the boys were not “amenable” to the courts processes.
He also testified as to the ages of the boys, which was not disputed; that Patterson had previously been adjudged a delinquent and placed on six months probation; that Dyer had been before the juvenile court, but for counseling only; and that Payne had had no contact with the court, nor had any investigation been made into his school record, home life or medical history.
Patterson and Payne, prior to the district court hearing, had been interviewed at their own behest by a clinical psychologist, Dr. V. W. Harris. His testimony on their behalf is summarized in the parties’ stipulation as follows:
“. . . He indicated that Terry Lee Payne was interviewed by him two times and found to be of average intelligence, not psychotic or suffering from mental or physical disorder, anxious and inclined to be passive. He indicated that he felt Payne was amenable to treatment and that his biggest problem was passivity. In regard to Patterson, Dr. Harris said that he found him to be of average intelligence with an above average verbal aptitude. He stated that he found Patterson not dangerous nor anti-social. He viewed him as close to sick but not sick and susceptible to rehabilitation in some kind of planned environment.”
The boys also produced Payne’s mother, who testified as to his good school and home record and produced a letter from his high school principal saying he would take him back despite the trouble he was in. Dyer’s mother likewise testified as to his past good conduct.
On this evidence the district court made the following findings:
“Under 38-808 K. S. A. the Juvenile Court is authorized to certify a young man to the criminal courts for trial as an adult when substantial evidence has been adduced to support a finding:
“(1) that the young man was 16 years of age or older at the time of the alleged commission of the offense; and
“(2) that the offense charged is of such a nature that it would be a felony if committed by a person 18 years of age or older; and
“(3) that the young man would not be amenable to the care, treatment and training program available through the facilities of the juvenile court before whom he is brought.
“There is no dispute about (1) or (2); the entire issue here centers about (3).
“We must keep in mind that we are concerned not with the treatment and training program available through the Juvenile Court of Judge Paul Alexander at Toledo, Ohio, where treatment facilities are unlimited; not through the Juvenile Court of Judge Gilliam at Denver, Colorado, where for years the Judge has been able to come up with whatever he needed in the way of per sonnel and facilities; but with the care, treatment and training program available through the Juvenile Court of Wyandotte County, Kansas.
“Substantial evidence has been adduced that if tried in the Juvenile Court of Wyandotte County, Kansas, and if convicted of what would be murder in the first degree if committed by a person 18 years of age or older, the Juvenile Court Judge would have available to him but one disposition of the case— to place the young man on probation.
‘Dr. Harris characterizes Terry Payne as being of average intelligence . . . poor memory and concentration . . . poorly informed . . . very anxious . . . mildly depressed . . . fearful and suspicious . . . a high need for contact with others ... a need to be popular and to be liked by his peers . . . greatly in need of emotional support and attention . . . passive . . . likely to follow the lead of others . . . not decisive . . . does not assume initiative ... a ‘sucker’ for a more dominant unfavorable companion . . .
‘Dr. Harris recommends for Terry Payne psychological treatment dealing with this passivity and fear, along with educative planning emphasizing some trade or skill development.
“Dr. Harris concludes that if all of these things can be put together, so to speak, Terry can be reached emotionally and is amenable to treatment. It is crystal clear that there is no care, treatment or training program availble through the Juvenile Court of Wyandotte County, Kansas that can supply Terry’s needs.
“Dr. Harris characterizes Bobby Patterson as being of average intelligence . . . average judgment . . . memory and concentration good . . . passive and suspicious . . . desperately in need of a father figure . . . angry at women who he views as critical, nagging, immoral and otherwise unfair to men . . . not likely to respect or obey a mother’s control . . . a bright boy, capable, who needs guidance in order to be able to develop.
"Dr. Harris says Patterson is amenable to psychological treatment under the strong and supportive guidance of an adult male; that educative planning should be along the line of business computer skills, where his interest lies.
“It is crystal clear that there is no care, treatment or training program available through the Juvenile Court of Wyandotte County, Kansas that can supply Bobby’s needs.
“We do not have the benefit of an examination of Donald Dyer by Dr. Harris. When the statute speaks of ‘treatment and training program,’ it gives the Judge of the Juvenile Court a wide latitude. I have to assume that he conscientiously exercised his best judgment in making the determination that his court did not have a treatment and training program that could assist in Dyer’s rehabilitation. I make the same finding.
“The end result is that in all three cases I do arrive at the same conclusion and enter the same judgment the Juvenile Court of this county entered. The restraining orders issued by Judge Burns on December 6th are dissolved and the cases against these three young men should proceed to preliminary hearing in the Magistrate Court.”
From this finding the boys have appealed to this court, where their primary claim is that the district court’s finding is not supported by substantial evidence.
In its memorandum the district court correctly enumerated the jurisdictional findings necessary to certify a young man for trial as an adult, i. e., age, the felonious nature of the offense, and the lack of amenability of the boy. See, In re Templeton, 202 Kan. 89, 447 P. 2d 158. It also correctly noted that its findings as to all three must be based on “substantial evidence.” K. S. A. 1971 Supp. 38-808 (b); In re Templeton, supra; State, ex rel., v. Owens, 197 Kan. 212, 416 P. 2d 259; In re Stephenson & Hudson, 204 Kan. 80, 460 P. 2d 442.
Here, of course, only the amenability issue was in dispute, and it is on that question that we must search the record for “substantial evidence.” Such a search reveals one basic and apparently controlling fact — B. I. S. wouldn’t accept them.
Beyond that we have only the psychologist’s opinion that two of the boys would respond to treatment and the district court’s bald assertion that it is “crystal clear” that such treatment is unavailable through the Wyandotte County juvenile court. As to the third boy the record is devoid of evidence concerning his background or personality. As to him the district court deferred entirely to the juvenile judge’s determination, saying, “I have to assume that he conscientiously exercised his best judgment. . . .” In so doing the district court failed to make the independent evaluation contemplated by a de novo hearing, and as required by Templeton, supra, and, especially, In re Long, 202 Kan. 216, 448 P. 2d 25.
Nowhere in the record do we have the normal and expected social record or staff reports alluded to in Templeton, nor do we have the prior juvenile files showing unsuccessful efforts at rehabilitation which were found to be an acceptable substitute in that case. The nature of Patterson’s previous delinquency, its date, and the success or failure of his probation do not appear. The cause, nature and result of Dyer’s counseling were likewise not before the court. There was no evidence of persistent prior misconduct such as that which supported the finding of nonamenability in In re Stephenson isr Hudson, supra. Further, no effort was made to differentiate among the boys as to culpability for this particular offense, any more than there was as to their past history or future potential.
In sum, the three were lumped together as being charged with an offense for which commitment to an institution was conceived as the only answer. We cannot escape the conclusion that the district court, like the juvenile court, saw disposition as being dictated by the offense and not the offender. If the seriousness of the offense is the prime consideration, the lack of concern for the individual potential of the boys is understandablé — it is simply not relevant to determining what procedure will result in confinement.
We think, however, that the approach taken below misconceives the thrust of the juvenile code, as set out in K. S. A. 38-801 and reviewed at some length in State, ex rel., v. Owens, supra. Mr. Justice Schroeder succinctly summarized the statutory and case law by saying:
“From the foregoing it may be said a juvenile proceeding under Kansas law is a protective proceeding entirely concerned with the welfare of the child, and is not punitive.” (Id., 197 Kan., at 220.)
Nowhere is it indicated that the nature of the transgression should alter this philosophy.
Looking at the record from this point of view, we are unable to perceive any substantial evidence from which one could reasonably conclude that these boys are not amenable to the processes of the juvenile court. We are therefore reversing the district court’s order and remanding this case for a re-examination of the question of whether any of the three boys is a fit and proper subject to be dealt with under the juvenile code.
Upon such re-examination the unavailability of B. I. S., if shown, would be a proper factor for the court’s consideration, but should not be controlling. Other possible dispositions should be considered, including other institutions within or without the state which might be willing to accept one or more of the boys, the availability of public or private sources of the treatment and regimen recommended by Dr. Harris, and whether any alternate routes available would “best serve the child’s welfare and the best interests of the state.” (K.S.A. 38-801.)
It may well be that such further exploration will result in no new discoveries. We can well appreciate the trial judge’s comments in comparing Kansas juvenile facilities to those available to juvenile courts in more enlightened jurisdictions; we empathize with the sense of frustration both he and the juvenile judge must feel. However, we would anticipate that after such reconsideration the record will reflect the avenues considered and their suitability or lack thereof as they relate to each individual boy.
At this point we note that the boys here argue strenuously that the unavailability of B. I. S. was not established by any competent evidence, much less by “substantial” evidence. Their argument, which has much merit, is that the only evidence on this issue is a purely hearsay statement which, in turn, was made by the superintendent of the school and not by the director of the division of institutional management with whom the permission authority is lodged. To the extent that this was an evidentiary shortcut it may easily be remedied at a future hearing. To the extent that the director’s considered judgment is required we assume such a decision, one way or another, will be made and properly presented to the court.
They also complain that in granting or denying permission for commitment to B. I. S. the director has unbridled discretion, and does not afford an opportunity to be heard during his decision making process. If his decision were to be the sole factor determining whether a boy was to receive juvenile court “care, treatment and training” or a life sentence to a penal institution, we might be required to face the constitutional questions thus raised. However, in view of what we have said and our disposition of this case we think their discussion unnecessary at this time.
It is also urged that the statute makes an unreasonable discrimination between boys in this age group who may be tried as adults and girls who may not, thus denying boys the equal protection of the laws. In support the boys cite Lamb v. Brown, 456 F. 2d 18 (10th Cir. 1972), where a mere reference to unspecified “demonstrated facts of life” was held to be insufficient to justify a similar distinction in the Oklahoma juvenile code. This issue was not raised below, and no opportunity was offered for the introduction of evidence seeking to justify the treatment of 16 and 17 year old girls differently from boys of the same age. Under these circumstances we will not consider the question for the first time on appeal.
The judgment is reversed and the case is remanded for further proceedings in harmony with this opinion.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fromme, J.:
This is a direct appeal from a conviction for murder in the second degree. The charge was under K. S. A. 21-402 (now K. S. A. 1971 Supp. 21-3402). Appellant was sentenced to the custody of the State Penal Director for a term of fifteen years. The murder victim was appellant’s 84 year old grandfather.
The events leading to the prosecution will be highly summarized in view of the points of error to be discussed later. Around 8:00 o’clock p. m. on September 27, 1969, a fire alarm was sent in for 9247 Leavenworth Road in Kansas City, Kansas. The appellant’s grandfather, Grover Cleveland Gress, lived alone at this rural address. The residence was destroyed by the fire and the firemen discovered the badly charred body of appellant’s grandfather in the ashes of his home. The body bore marks of an apparent shotgun blast.
Police officers were summoned and they began an investigation into the homicide. In the course of the investigation a pickup order was issued for the grandson of the victim and his vehicle. Shortly before noon the next day the grandson and some companions arrived at the scene of the fire and inquired as to what had happened. A deputy sheriff asked the appellant-grandson if he would accompany the officer to the courthouse to help him make out a report. The appellant agreed and accompanied the officer without being advised of the issuance of the previous pickup order and without being advised that he was under arrest. The officer stated that the appellant-Gress was not a suspect at this time but that he was in custody and would have been restrained if he had attempted to leave without answering questions.
Two separate periods of interrogation followed at the police station. The first interrogation was without a Miranda warning. (See Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974.) It lasted twenty-four minutes and at the end of that period of time the warning was given. Thereafter the interrogation continued and this period of the questioning will be referred to as the second interrogation. Eventually around midnight that same evening a confession on which the conviction rests was signed by appellant.
Appellant raises three points of error. His principal contention is that the trial court erred in overruling his motion to suppress the confession. We will consider this point of error first.
Although there is some confusion in the record it appears from testimony given by Captain Hall and Agent Purdy that when the warning was eventually given the warning of rights was sufficient under the Miranda guidelines. Captain Hall testified, “I advised the man that he had the right to remain silent; that he had the right to the services of an attorney; that any statement he made could be used against him in a court of law; that if he could not afford an attorney that one would be appointed for him.” This explanation appears to have been elicited both on a motion to suppress and during the trial of the case.
The Miranda opinion, requiring a proper warning or advice of rights, applies to both admissions and confessions. (State v. Phinis, 199 Kan. 472, 475, 430 P. 2d 251; State v. Lekas, 201 Kan. 579, 587, 442 P. 2d 11.) A confession obtained after a Miranda warning may nevertheless be inadmissible in evidence as “fruit of the poisonous tree” if it is the product of earlier statements obtained by interrogation without the necessary advice of constitutional rights. (State v. Lekas, supra.)
However, a prior custodial interrogation without the Miranda warning does not automatically render subsequent in-custody statements made during a later interrogation inadmissible when the later statements are made after a proper warning of rights, for it is only when the subsequent statements or confession are a product of the earlier impermissible interrogation that the “fruit of the poisonous tree” doctrine is applied. The facts, circumstances and the interrelationship of separate interrogations must be examined to determine whether there is sufficient causal relationship between them to render the subsequent statement a product of the earlier impermissible interrogation. (Harney v. United States, 407 F. 2d 586 [1969]; Westover v. United States, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974; Commonwealth v. Frazier, 443 Pa. 178, 279 A. 2d 33; State v. Lekas, supra.)
A further detailing of the facts surrounding the interrogations is necessary to determine if the confession was a product of the earlier twenty-four minute interrogation carried on without adequate warning. During this first twenty-four minutes at the police station, from 12:30 p. m. to 12:54 p. m., appellant was asked his name, age and address. In addition, with reference to the night of the fire, he was asked the names of the people he was with, the kind of car he was driving, where he had gone and who could verify his whereabouts. On cross-examination Agent Purdy testified these latter questions were asked to determine whether appellant had an alibi for the afternoon and evening of the fire. During tifie interrogation two of appellant’s companions were also being questioned by other officers. It appeared to the officers during the initial questioning that appellant’s alleged companions were not giving their correct names. It also appeared that appellant had not been in Topeka with them on the afternoon and evening of the fire, as appellant had stated. It was at this time that the officers gave the appellant the Miranda warning.
Thereafter, the interrogation continued from 12:54 p. m. to 3:45 p. m. and the appellant iterated the events of the afternoon and evening, consistently maintaining that he had not been to his grandfather’s house. Instead, he stated he had spent the evening in Topeka. At 3:45 p. m. without having changed his story, appellant was taken to jail where he remained until approximately 9:30 p. m. In the meantime the services of a polygraph (lie detector) operator were secured and appellant was returned to the courthouse. He submitted to a polygraph examination. Shortly after this examination the appellant completely changed his story and gave the officers a written statement and confession on which his conviction now rests.
The prosecution contends that the preliminary interrogation was prior to the decisive stage, that the officers were merely engaged in the fact finding process to determine if a crime had been committed. The appellant, on the other hand, contends the interrogation was an attempt to break down his alibi and prepare for the prosecution. As we view the facts and circumstances the initial interrogation went beyond general questioning to obtain background information.
The police are permitted to ask an accused who is under arrest some general background questions before it is necessary to give the Miranda warning. See People v. Hernandez, 263 C. A. 2d 242, 69 Cal. Rptr. 448; Sciberras v. United States, 380 F. 2d 732; State v. Rassmussen, 92 Idaho 731, 449 P. 2d 837; Clarke v. State, 3 Md. App. 447, 240 A. 2d 291. Questions which seek to determine name, address, age, occupation and place of employment are of such a nature. It appears clear, however, in this case that the officers inquired into not only the background facts but also the merits of appellant’s alibi. Therefore, it is necessary for us to determine whether the final confession was a product of the earlier statements made during the initial interrogation.
After studying the facts and circumstances surrounding the two periods of interrogation, we conclude the confession was not a prod uct of the earlier interrogation. Appellant was a grandson of the victim. Normally he would not be viewed as a suspect. He would ordinarily have information concerning his deceased grandfather which could aid in the investigation. Several persons were being questioned simultaneously. It was not until the investigation began to focus on appellant that the Miranda warning had to be given. This exact time is not apparent from the record. The appellant made no incriminating statements prior to the Miranda warning and he continued thereafter to give the same answers to the questions. The exculpatory alibi was given by appellant both before and after the warning. It was not introduced into evidence at the trial. Since no inculpatory statement or confession was given by the appellant during the initial interrogation, the case of State v. Lekas, supra, is readily distinguishable. Where the initial interrogation elicits no inculpatory admissions there can be no pressure on the suspect to repeat and enlarge upon the same at a subsequent interrogation which is preceded by a Miranda warning. After considering the facts, circumstances and extent of these separate interrogations we find no causal relationship between them which would render the subsequent confession, made more than nine hours after the Miranda warning was given, a product of the earlier impermissible interrogation. The confession appears independent and free from any influence of the initial questioning. Accordingly the motion to suppress the confession was properly overruled.
The appellant contends his attorney was erroneously refused permission to freely confer with a material witness, Joy Wilcox, in advance of trial.
An attorney for an accused has a right to interview witnesses held in custody prior to trial without the prosecutor being present. Witnesses are not parties and should not be partisans. The defendant has not only the right to compulsory process for obtaining witnesses to testify in his behalf but also the right, either personally or by attorney, to ascertain what their testimony will be. (K. S. A. 1971 Supp. 7-125, DR 7-109; Gregory v. United States, 369 F. 2d 185 [1966]; Commonwealth v. Balliro, 349 Mass. 505, 209 N. E. 2d 308; State v. Berstein, 372 S. W. 2d 57 [Mo.], cert. den. 376 U. S. 953, 11 L. Ed. 2d 972, 84 S. Ct. 970.) However, reasonable restraints may be imposed by a court to assure the personal safety of a witness in legal custody and to prevent unnecessary annoyance or embarrassment to a witness and undue demands and hardship upon the persons in whose custody the witness remains. (14 A. L. R. 3d 652 anno.; ABA Standards for Criminal Justice, Discovery, § 2.5, §4.1; Id. The Defense Function, §4.3 [d].) In the present case appellant’s contention is without substance for several reasons.
Joy Wilcox was with appellant at the time of his arrest. She testified at the preliminary hearing. Appellant’s attorney then took her deposition. She left the state and was not available as a witness during tihe first trial which ended with a hung jury. However, she did keep in touch with the defense attorney by telephone both during and after the trial.
The witness was then charged with being an accessory after the fact in the Gress murder and she was brought back to Kansas. The defense attorney interviewed her on at least one occasion thereafter while in custody and unable to make bond. The attorney obtained an order from the trial judge granting him permission to interview the witness. This interview was conducted in the company of an independent observer appointed by the court, Mr. John Fisette. When the second trial commenced the defense attorney again sought to interview Miss Wilcox. He was informed by the jailer that such an interview would have to be in the presence of her corut appointed attorney, Phil Sieve.
Although appellant’s attorney states that the court refused to permit interviews, the record does not support his contention. Under the record it appears appellant’s attorney was permitted reasonable access to the witness for he not only interviewed her but also took her deposition. She testified at the preliminary hearing. The contention is without substance. (See State v. Clark, 125 Kan. 791, 796, 266 Pac. 37.)
Appellant’s final claim of error relates to the failure of the trial judge to declare a mistrial on the basis of the prosecutor’s reference during his closing argument to a polygraph examination administered to appellant. No attempt was made during the trial to introduce testimony on the results of the test or the opinions of the expert who administered the same. In State v. Lee, 197 Kan. 463, 419 P. 2d 927, cert. den. 386 U. S. 925, 17 L. Ed. 2d 797, 87 S. Ct. 900, reh. den. 386 U. S. 978, 18 L. Ed. 2d 142, 87 S. Ct. 1170, it was said:
“. . . The result of the he detector test was not admissible as evidence under the decisions of this court and any reference thereto on the part of the state or its witnesses would have constituted error under the circumstances. [Citing authorities.] . . .” (p. 464.)
Reference to the polygraph examination was made three times during the trial. Detective Monchil testified that appellant had been interviewed by another officer and was asked, “All right, do you know who this other officer is?” He replied, “He was a polygraph examiner for the Kansas City, Missouri, Police Department.” No objection was made. Captain Hall was asked when he had next seen appellant after the first interview ended at 3:45 p. m. The following ensued:
“A. It was late Sunday evening when we had him brought from the jail to take a polygraph examination.
“Q. All right. Now, from 12:45 to 3:45 until you brought him from the jail for this examination, was anyone interviewing him?
“A. Not to my knowledge, no, sir.
"Q. Well, do you know?
“A. Not to my knowledge, no, sir, I don’t think so. I don’t recall assigning anyone to interview him.
“Q. About what time did you take him out of the jail for this examination?
“A. I don’t recall the exact time, Mr. Menghini, but it was late that evening.”
At this point appellant objected. The court thought it should caution the witness against revealing the result of the polygraph examination. Appellant’s counsel asked that the witness not be cautioned because this would merely focus the jury’s attention on the fact that the polygraph examination was given. Later, appellant requested an instruction be given covering polygraph tests. The following instruction was given.
“You are instructed that there has been certain testimony presented which would indicate that a polygraph test, more commonly referred to as a lie detector test, was given to the defendant herein, the results of which have not been given by the testimony. In this regard, you are instructed that the results of such a test are inadmissible as evidence, and you are directed not to speculate or consider the possible result of said test in arriving at your decision in this case.”
In his closing statement the county attorney commented on the examination, as follows:
“Then the officers said they didn’t bother him until later on that night when they ran this examination on him, and after the examination he said, ‘I’m ready to give a statement now,’ and he gave this statement, and you take it up to your jury room and read it.”
Appellant then made his motion for a mistrial.
In this case the results of the test were not referred to in any of the statements. The prosecutor’s remark upon which the motion for mistrial is based referred to an “examination” but did not expressly refer to a polygraph or a lie detector. However, as appellant argues the jury might well infer from the proximity of the examination and the confession that the examination results were unfavorable. The trial court sustained all objections made by the appellant and instructed the jury not to speculate or consider the possible result of said test in arriving at a verdict. In State v. Smith, 187 Kan. 42, 353 P. 2d 510, a similar contention was made and rejected when it appeared the jury had been properly admonished not to consider references to the giving of such a test. Under the circumstances of the present case we conclude no prejudicial error occurred.
One other matter deserves comment before we conclude our discussion of this appeal. On July 1, 1970, this court adopted the same rules for criminal appellate practice as had previously governed civil appellate practice. (See Rules of the Supreme Court, Rule No. 1(d), 205 Kan. xxvii.) The record on appeal should now be made up in accordance with the requirements of Rule No. 6. The appellant and the appellee should prepare and file their designation and counter designation of the contents of the record. The record can then be prepared in one volume without the confusion and overlapping which appears in the abstract and counter abstract filed in the present case. To supply the omissions in the abstract in the present case it was necessary for this court to compare the material in the counter abstract and insert such material in the abstract in order to determine what transpired in the court below. This is an unwelcome burden which we do not choose to assume in the future. Two years should be sufficient time to become familiar with the present rules.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is a proceeding in indirect contempt of court initiated upon relation of the county attorney of Sedgwick county against Al M. Bissing and four other individuals; Jack W. Robinson, Leo A. Rasmussen, Sr., Henry D. Rodgers and James Jonkers, because of their particaption in “doggy bingo”. The trial court granted only limited relief and the state has brought the matter here.
The background of the proceeding may be summarized as follows:
In the summer of 1954 Al M. Bissing, the owner of a tract of land adjacent to the city of Wichita (8130 South Broadway), commenced conducting thereon dog races in connection with a system of parimutuel betting. Dr. Bissing was also the owner and operator of the Wichita Greyhound Club. The then county attorney of Sedgwick county initiated an action against Bissing and the club wherein the state, relying on the constitutional proscription of lotteries, sought to enjoin further operation of the racing enterprise and to have the premises declared a common nuisance. The trial court ruled that the enterprise did not constitute a lottery and denied the relief requested. On appeal by the state this court reversed, ruling that the activities in question constituted a lottery in violation of the state constitution. The action was remanded for further proceedings in the trial court consistent with this court’s decision (State, ex rel., v. Bissing, 178 Kan. 111, 283 P. 2d 418).
On June 30, 1955, pursuant to this court’s mandate, the district court of Sedgwick county entered a permanent injunction, incorporating this court’s judgment, in personam against Dr. Bissing, the Wichita Greyhound Club, and all agents, servants and employees! of each of them, and in rem against the premises, prohibiting use of the premises in connection with a lottery and gambling in the form of bookmaking, pool selling, betting and wagering on dog races.
The next event to be noticed is enactment by the 1971 legislature of that which is now K. S. A. 1971 Supp. 21-4302, which purported to exclude bingo and other games of chance with comparable characteristics from the definition of a lottery.
During the fall of 1971, Ken’s Klub, Inc., a nonprofit Kansas corporation and the holder of a tax exemption certificate under paragraphs 3,4, 7, 8 and 10 of subsection (c) of section 501 of the internal revenue code of 1954, doing business as The Wichita Kennel Club, entered into a lease with Patricia Bissing, the then owner of the property at 8130 South Broadway, Wichita, for the possession of such premises for the purpose of operating doggy bingo. Leo A. Rasmussen, Sr., Henry D. Rodgers and James Jonkers are all officers of the lessee corporation. Jack W. Robinson was retained by the corporation as its public relations director.
On September 14, 1971, a practice session of doggy bingo was held on the premises in order to test the equipment. Members of various law enforcement agencies were invited to be present; however, no legal proceeding resulted from this activity.
On the night of October 5, 1971, following an intensive advertising campaign by the alleged contemners, the first “live” session of doggy bingo was held. Members of the public were admitted to the premises upon their completion of an application for membership in the Wichita Greyhound Club and payment of one dollar for which they received a membership card valid for that night only and a copy of the rules for doggy bingo. Applications for membership were distributed to the occupants of automobiles as they were lined up on the road leading to the entrance of the premises. The membership fee was collected and the cards and rules were distributed at the entrance.
Standard bingo cards were sold at a price of two dollars each at a booth located on the premises. A lighted bingo board and a small glass box containing numbered ping-pong balls were situated on a raised platform. A person withdrew balls from the box one at a time and announced the successive numbers to the purchasers of the bingo cards. Doggy bingo was played in the following manner: At the top of each bingo card the letters B,I,N,G,0 appear. Under each letter are five numbers so that each card contains a block of twenty-five numbers. No cards contain exactly the same numbers. As the operator of the game draws numbers by chance and announces them, each player blocks out that number if it appears on a card held by him.
In ordinary bingo any player who by reason of numbers drawn blocks out a line of five numbers either vertically, horizontally or diagonally on his card has a “bingo” and is entitled to the prize. Doggy bingo operates somewhat differently in that to bingo it is necessary to have five numbers blocked out vertically and the game continues and numbers are drawn until someone has a bingo under each of the five letters on the cards. Each person thus favored by Dame Fortune is entitled to a monetary prize and in addition, as a holder of one of the letters, is entitled to participate in the ensuing dog race. At the conclusion of each bingo game five greyhound dogs are brought to the race track. Each dog wears one of five letters: B,I,N,G or O. A mechanical rabbit is started on the track, which device the dogs chase around the track to a finish line. The dog first crossing the line is declared the winner. Each participant who completes a vertical bingo is paid a cash prize without regard to where his dog finishes in the race. The bingo winner holding the card with the letter of the winning canine is paid an additional sum. Prize money is derived from the money received at the gate from memberships and from the sale of bingo cards. The activity was conducted in this manner five times during the night of October 5, 1971. At the end of each race new bingo cards were sold, bingo was again played and another race run. Ken s Klub had previously made arrangements with Dr. Bissing to conduct the greyhound races upon its behalf and he was generally in charge of the activities on the premises on the night in question.
That same night an affidavit in contempt was filed in the trial court, setting out alleged violations of the permanent injunction previously issued against Bissing, the Wichita Greyhound Club and the particular property. After an evidentiary hearing at which the foregoing facts were substantially developed the trial court issued an order directing the sheriff of Sedgwick county to seize the gambling paraphernalia used on the premises along with a show cause order directed to the individual defendants as to why they should not be cited and punished for contempt. Pursuant to the seizure order the sheriff took possession of certain bingo equipment described as a jet action bingo blower, flashboard, hard cards, usher apron, colored ping-pong balls, cardboard markers, bingo case with set of balls and master board, and green bingo cards.
Eventually the five individuals heretofore named were accused in contempt with willful violation of the permanent injunction issued in State, ex rel., v. Bissing, supra, the accusation detailing the activities conducted on the premises in question. Issues were joined by the filing of answers and hearing was had thereon. The alleged contemners made certain admissions as to the facts, and oral testimony and a mass of exhibits were offered by the state and received in evidence.
At the conclusion of the hearing October 29, 1971, the trial court announced its ruling in the following colloquy:
“The Court: As I understand this particular contempt action, it grew out of a condition wherein certain citizens of our community were trying to ascertain whether or not doggie bingo, involving the racing of dogs, was legalized under Chapter 111 of the 1971 Session Laws. I agree that there was no intentional vicious contemptuous action on the part of these people to violate an injunction that was issued by this court back in 1955. Also, the state, instead of proceeding against these individuals in a criminal matter, saw fit to file contempt citations. I feel everybody concerned in this matter has tried to place the question before the court fairly and squarely as to whether the so-called doggie bingo is in violation of Chapter 111. As the court understands Chapter 111 the legislature attempted to legalize bingo under certain conditions and added to that a game of chance with comparable characteristics.
“The facts before us show us that we had a bingo game and that out of the bingo game certain winners became eligible for additional prizes to be determined by the racing of dogs, and, as I understand it, that the bingo was played until someone had completed the vertical line under each of the five letters, and upon the completion of the fifth line these five winners were given a dog in a five-dog race and that, for example, if the winner of Y had the dog that had Y on it won the race, that the winner of the bingo card holding Y on the Y column won the pot. To me that is not a game of chance with comparable characteristics. Therefore, it is the opinion of the court that we do have a violation of Chapter 111, and, therefore, also a violation of the injunction heretofore entered by this court.
“The injunction that was entered back in 1955 said, ‘The defendants, and each of them, are hereby permanently restrained and enjoined from conducting a lottery and gambling in the form of bookmaking, pool selling, betting and wagering upon the premises above described upon dog races,’ et cetera. The defendants in that case were Al M. Bissing and the Wichita Greyhound Club, and all agents, servants and employees of each of them.
“The court is of the opinion that with reference to Mr. Rasmussen and Mr. Rodgers that there is no evidence here to find them guilty of contempt of that order. With reference to Senator Robinson and Mr. Jonkers the court is of the opinion that they are not included within the words ‘agents, servants and employees.’ Therefore, the court is going to find Mr. Jonkers and Senator Robinson, Mr. Rodgers and Mr. Rasmussen not guilty of contempt of the injunction.
“With reference to Dr. Bissing the court is going to find Dr. Bissing guilty of contempt of this court in violating the injunction of 1955. The court is going to assess, in view of everything I have said, Dr. Bissing to pay a fine of twenty-five dollars.
“With reference to the equipment that is in the custody of the sheriff the court will order that to be returned to the owners.
“Mr. Sanborn: Are you going to tax the costs, Your Honor?
“The Court: No, I’m not going to tax the costs.
“Mr. Sanborn: We move the court tax the costs against the defendant in these proceedings.
“The Court: I’m not going to tax the costs.”
The state immediately announced its intention to appeal and thereafter filed notice of appeal to this court. No cross-appeal was taken by appellee Bissing. Meanwhile, the trial court, upon the state’s request, granted a ten day stay of execution of its order directing return of the seized paraphernalia to appellees and its order dissolving an interim order made October 11, 1971, directing that the financial status quo with respect to the doggy bingo operation be maintained. This stay order was granted to permit application to be made to this court for similar relief, which application was made and sustained November 9, 1971, with the result the trial court’s stay order was extended until further order of this court.
As indicated, the state has appealed, specifying as error (1) the trial court’s failure to sustain the state’s motion asking summarily for judgment against all alleged contemners on the basis of the admissions contained in their answers and in the factual stipulation made in open court; (2) failure upon full hearing to find the four individuals guilty of contempt; (3) refusal to tax costs including reasonable attorney fees; (4) ordering return of the seized paraphernalia; and (5) inadequacy of the fine imposed upon Dr. Bissing. The state also urges that in the exercise of its superintending power this court by way of quo warranto should oust contemners from the exercise of the corporate power of operating doggy bingo under the charter of Ken’s Klub, Inc., and by way of mandamus should grant all relief requested.
Appellees Robinson, Rasmussen, Rodgers and Jonkers raise the threshold issue that in a criminal contempt proceeding an appeal may not be taken from a finding of not guilty and indeed this court has so held. Hendrix v. Consolidated Van Lines, Inc., 176 Kan. 101, 269 P. 2d 435, was such a proceeding brought against certain insur anee companies by reason of their publication of advertisements allegedly designed to affect the right to fair trial by jury. The court’s ruling was summarized thus:
“In a general way, civil contempt is defined as being the failure to do something ordered by a court to be done for the benefit or advantage of another party to the proceeding, that is, disobedience of a court order or decree made in behalf of a litigant. A proceeding in civil contempt ordinarily is remedial and coercive in nature, and is brought for the enforcement of private rights and remedies.
“In a general way, criminal contempt is defined as being conduct which is in disrespect of a court or its processes, or which obstructs the administration of justice.
“In a civil contempt proceeding an appeal may be taken from a judgment of not guilty as well as from a judgment of guilty.
“In a criminal contempt proceeding an appeal may be taken from a judgment of guilty, but not from a judgment of not guilty.” (Syl. ¶| 1, 2, 3, and 4.)
The foregoing rules were subsequently recognized, albeit by way of dictum, in Roush v. Hodge, 193 Kan. 473, 394 P. 2d 101.
It is clear that the alleged contempt in the case at bar is criminal contempt — appellant does not contend otherwise. Appellant does assert as authority for its position that an appeal lies in a situation as here presented this court’s decision in State, ex rel., v. Ramsey, 151 Kan. 764, 100 P. 2d 637. That was an appeal from a judgment sustaining defendants’ demurrer to the evidence in a proceeding for contemptuous violation of an injunction against certain premises which had been judicially declared a common nuisance because of illegal gambling and liquor sales conducted thereon. The trial court’s ruling absolving the alleged contemners was premised on the fact there was no showing they had knowledge of the injunction alleged to have been violated. On appeal by the state this court reversed, holding that an injunctive decree prohibiting gambling or liquor law violations on particular premises is “an encumbrance which runs with the land, of which everybody must take notice”, (p. 767.)
The state urges the posture of Hendrix is sufficiently distinguishable from that in Ramsey that the latter should control. The principal distinction relied upon is that the ruling appealed from in Ramsey was based on an erroneous interpretation of law while in Hendrix the dispute did not concern the law but rather application of the facts to the law. Also pointed out is that in Ramsey the contempt proceeding was brought to enforce an in rem injunction against a common nuisance while in Hendrix the contempt pro ceeding was initiated within the context of a civil suit for damages.
It is noteworthy the issue of appealability was never raised nor considered in Ramsey. In Hendrix this statement appears:
“We know of no statute or decision of this state, and none has been cited, which authorizes an appeal from a judgment of not guilty in a criminal contempt proceeding.” (p. 111.)
Upon reexamination we are satisfied with the soundness of the rule stated in Hendrix, which appears to be that applied in the majority of jurisdictions where the issue has been considered (see anno. 24 ALR 3d 650, 654). Additionally, under the particular circumstances of the case at bar, we would decline by extraordinary writ to assume jurisdiction as urged by appellant. By way of further defense these four appellees have asserted the legality of their doggy bingo enterprise by virtue of K. S. A. 1971 Supp. 21-4302, the constitutionality of which had not yet been determined when this action was heard. That issue has now been considered and settled in State v. Nelson, 210 Kan. 439, 502 P. 2d 841, so there is no occasion for the utilization of any extraordinary authority to settle an important public question or to prevent general circumvention of the constitutional prohibition of lotteries as asserted by appellant. This disposes of the appeal with respect to the four individuals not parties to the original injunction suit, excepting only the seized paraphernalia to be mentioned later.
Appellee Bissing asserts the state did not appeal from the judgment rendered against him and that the fine which was assessed against him has been paid and therefore all points raised by appellant as to him are moot. His argument is, there was no allegation in the notice of appeal referring to him. Also, as supportive, he points to the following statement contained in appellant’s brief:
“From all of the above rulings, save the conviction of Bissing, the State appeals.”
This assertion lacks merit. The notice of appeal was directed to and served upon appellee Bissing; it pointed out that the trial court’s ruling allowed contemners to profit by their own wrongdoing and, more specifically, requested that a fine more appropriate to the offense be levied and that the costs of the proceeding, including reasonable attorney fees, be taxed against contemners. Although not the most skillfully drawn we think the notice of appeal suffi ciently identified the judgment and the part thereof asserted to be erroneous. Certainly the appeal was not from the judgment of conviction, rather it was from certain aspects of the penalty imposed including the failure to tax costs and to impound the articles allegedly used in gambling.
The assertion of mootness may be quickly disposed of. Generally, an issue is moot when a judgment of the appellate court would be of no consequence (Diehn v. Penner, 169 Kan. 63, 216 P. 2d 815). A ruling by this court on the issues raised as to appellee Bissing would have practical consequences; hence those issues are not moot.
We treat first with appellant’s contention the twenty-five dollar fine was so inadequate as to amount to arbitrary action inasmuch as it allowed appellee Bissing (and the other alleged contemners) to realize a profit from wrongful conduct. The record by no means supports this latter conclusion; .however, the crux of the matter is that the degree of punishment for criminal contempt rests in the sound discretion of the trial court (see 17 Am. Jur. 2d, Contempt, § 105) which discretion will not be reviewed or revised on appeal except for abuse. Nothing in the record suggests partiality, prejudice or corrupt motive in the assessment of the fine and the appeal is not sustained on the grounds of its inadequacy.
Appellant also complains the trial court erred in failing to tax the costs, including attorney fees for the prosecuting attorney, against appellee Bissing after finding him guilty of criminal contempt. As to this we must agree.
Our former statutory proceedings for abatement of nuisances resulting from prohibited activity are now encompassed in K. S. A. 1971 Supp. Chapter 22, Article 39, effective July 1, 1970. 22-3901 prescribes the scope of the activities declared to be common nuisances when used in connection with real and personal property; proscribed activities include commercial gambling and possession of gambling devices. Property used in connection with these activities is made subject to injunction and abatement. 22-3902 and 22-3903 provide a procedure for abatement. 22-3904 deals with the types of final judgments which may be entered in nuisance proceedings. Subsection (3) provides:
“Upon final judgment for the state the court shall adjudge that the defendant pay all costs, including a reasonable fee, to be fixed by the court, to be paid to the prosecuting attorney. Such costs shall be a lien upon any real property against which an order of abatement is obtained.”
The property in question was already subject to a final injunctive order. Appellee Bissing was likewise subject to that order and has now been finally adjudged guilty of contempt of that order. An action for contempt grounded on violation of an injunction is not a separate independent action but is a part of the original injunction suit (Frey v. Willey, 161 Kan. 196, 166 P. 2d 659).
The impact of this rule on the precise question under consideration was dealt with many years ago in State v. Plamondon, 75 Kan. 269, 89 Pac. 23. There the accused was convicted of contempt of court upon his violation of an order enjoining the maintenance of a liquor nuisance on particular property. At issue was the authority of the trial court to award a reasonable fee to the prosecuting attorney as a part of the costs taxed against the contemner. In upholding such authority this court stated:
“The right of the court to give judgment for an attorney’s fee is also questioned. The statute expressly authorizes an award for attorney’s fees in a suit for abating and enjoining a nuisance. ... A like statute has been held to justify an allowance of an attorney’s fee as a part of the costs in a proceeding for contempt which is incidental to a suit for an injunction. (The State, ex rel., v. Durein, 46 Kan. 695, 27 Pac. 148.) It is argued that the statute referred to provides only for an award of attorney’s fees in suits for injunctions, but does not cover proceedings for contempt. The proceeding for contempt, although criminal in its nature, is an incident to, and one of the final steps in, the suit for an injunction. It was remarked by Mr. Justice Porter, in the recent case of The State v. Thomas, 74 Kan. 360, 86 Pac. 499, that ‘the proceeding is a part of the original case and the court properly took judicial notice of the previous order granted in that case.’ ” (p. 272.)
Although on its face 22-3904 ( 3) pertains only to actions for abatement of a common nuisance by way of injunction, such a statute must be held to apply with equal force to contempt actions for violation of an injunction so. obtained. It mandates that the defendant pay all costs, including a reasonable attorney fee to be fixed by the trial court. Hence we conclude the trial court erred in this omission. It is no answer, as suggested by appellee, tihat the issue of attorney fees was not specifically raised in the trial court. Attorney fees when allowable are taxed as a part of the costs and here the prosecuting attorney was effectively foreclosed by the trial court on the cost aspect of the judgment before reaching the elements involved.
Finally, appellant urges error in the trial court’s order directing return to appellees of the gambling paraphernalia seized. The trial court did in effect find that the seized property was being used for an unlawful purpose. That property fully qualifies as “gambling devices” as defined in K. S. A. 1971 Supp. 21-4302 ( 4). In its comment accompanying this annotated section the Judicial Council notes “this definition includes not only mechanical and electronic devices but lottery tickets, numbers slips, and other evidence of participation in gambling enterprises.” (p. 381.) K. S. A. 1971 Supp. 22-3904 ( 2) authorizes the district court to order public destruction of any paraphernalia designed for and used in carrying on any of the unlawful activities mentioned in 22-3901, but this authority is couched in permissive terms and no specific standard is prescribed for its exercise. Enacted at the same time as 22-3904 and in pari materia as relating to the same subject matter is K. S. A. 1971 Supp. 22-2512, providing for the custody and disposition of property validly seized by an officer. Subsection (4) states:
“(4) Articles of contraband shall be destroyed, except that any such articles which may be capable of innocent use may in the discretion of the court be sold and the proceeds disposed of as provided in subsection (2). . . .” (Emphasis supplied.)
In Campbell American Legion v. Wade, 210 Kan. 537, 502 P. 2d 773, this court emphasized the interest of the state of Kansas in gambling property seized as contraband under 22-2512. This interest derives, of course, from the policy plainly expressed in the unqualified constitutional proscription of lotteries (Kan. Const., Art. 15, §3). The undoubted purpose of the legislative enactments, with respect to gambling, is to eliminate effectively the use of personal property in connection with lotteries or gambling. Hence we conclude, to accomplish that purpose, disposition of the seized property should be that mandated by 22-2512 ( 4). The record does not disclose ownership of the property. On oral argument it was stated to be in one of the four individual appellees as to whom this appeal is dismissed. The proceeding nonetheless is one in rem as to the property, making it subject to the disposition directed.
The appeal relating to appellees Robinson, Rasmussen, Rodgers and Jonkers is dismissed. As to appellee Bissing the judgment respecting the fine imposed is affirmed; that relating to taxation of costs including attorney fees for services in the trial court and to disposition of the seized property is reversed and the cause is remanded for further proceedings in accordance with this opinion. This court’s stay order of November 9, 1971, is set aside, effective upon receipt of the mandate herein.
APPROVED BY THE COURT. | [
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|
The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action where the appellant La Verta A. Murray was tried by a jury and convicted of aggravated assault under K. S. A. 1969 Supp. 21-3410 and criminal damage to property of less than $50 under K. S. A. 1969 Supp. 21-3720. The appellant on this appeal raises only one point as a basis of claimed error. Appellant complains of the instruction given by the court on the subject of alibi. Instruction No. 10 covering this subject was as follows:
“You are further instructed that one of the defenses made by the defendant in this case is what is known in law as an alibi. That is, that defendant was in another place at the time of the commission of the crime.
“This is a proper defense and the defendant is not required to prove an alibi beyond a reasonable doubt, or even by a preponderance of the evidence. It is sufficient to justify an acquittal if the evidence upon that point raises a reasonable doubt of his presence at the time and place of the commission of the crime charged, and the attempt of the defendant to prove an alibi does not shift the burden of proof from the prosecution, but the prosecution is bound to prove his presence, beyond a reasonable doubt. An alibi is easy to prove and hard to disprove, and testimony offered to prove this defense should be subjected, like all other evidence in the case, to rigid scrutiny for the reason that witnesses, even when truthful, may be honestly mistaken of, or forgetful of times and places.”
Specifically it is the contention of the appellant that the last sentence contained in instruction No. 10 to the effect that an alibi is easy to prove and hard to disprove and should be rigidly scrutinized denied the appellant due' process of law and equal protection of the law as provided by the United States Constitution and the Bill of Rights of the State of Kansas. Appellant argues that ihe language of the instruction in effect placed the burden of proof on the defendant to prove his defense of alibi and that the trial court improperly singled out a certain portion of the evidence and commented on it.
In State v. Skinner, 210 Kan. 354, 503 P. 2d 168, we held that a separate instruction on the defense of alibi is not required where adequate and proper instructions are given on the elements of the crime charged and on the prosecution’s burden to prove guilt beyond a reasonable doubt. In Skinner we approved the recommendation made in PIK Criminal 52.19 prepared by the Committee on Pattern Jury Instructions of the Kansas District Judges Association and published in 1971 under the sponsorship of the Kansas Judicial Council. Under PIK 52.19 the committee recommended that there be no separate instruction on alibi. The problem presented in the case at bar arises from the fact that an alibi instruction was given and the issue to be determined is whether or not the giving of the instruction constituted judicial error.
In State v. Woolworth, 148 Kan. 180, 81 P. 2d 43, an instruction identical with instruction No. 10 was approved by this court. We do not find that instruction No. 10 was prejudicial error in this case. In Sullivan v. Scafati, 428 F. 2d 1023 (1970), cert. den. 400 U. S. 1001, 27 L. Ed. 2d 452, 91 S. Ct. 478, the appellant contended that an instruction similar to the one given here prejudiced his right to due process of law and equal protection of the law. The United States Court of Appeals of the First Circuit refused to reverse stating as follows:
“In the present case the rigid scrutiny’ language was supplemented by a reference to the frequency with which alibi evidence was attended by ‘contrivance, subornation and perjury.’ These words, while gilding the lily, merely make explicit the reason underlying the court’s instruction to scrutinize an alibi carefully. While we would prefer not to have such words used, we see no real possibility that this language in this context actually misled the jury as to its duty or the state’s heavy burden of proof. Cf. Bihn v. United States, 328 U. S. 633, 636-637, 66 S. Ct. 1172, 90 L. Ed. 1485 (1946).” (p. 1025.)
In reviewing in its entirety instruction No. 10 we find that it was not manifestly erroneous. Instruction No. 10 informed the jury about the defense of alibi and clearly placed the burden of proving the appellant’s presence at the scene of the crime upon the prosecution. The instruction emphasized that the prosecution must prove the guilt of the defendant beyond a reasonable doubt. The last sentence states that testimony to prove alibi “should be subjected, like all other evidence in the case, to rigid scrutiny.”
We also note that the record does not disclose that any objection was made to instruction No. 10 by appellant at the trial nor is it included as a ground of error in appellant’s motion for a new trial. We would prefer that no alibi instruction be given at all. State v. Skinner, supra.) We do not believe that the language contained in instruction No. 10 actually misled the jury as to its duty or the state’s heavy burden of proof. We find no prejudicial error justifying a reversal.
Judgment affirmed. | [
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|
The opinion of the court was delivered by
Fontron, J.:
The question presented on this appeal is whether the sale and assignment of a contract for the purchase of real estate was void as having been made to defraud creditors. This issue was tried out in the court below in garnishment proceedings, and no question is raised concerning the propriety or regularity of these proceedings. The trial court upheld the validity of the assignment and an appeal has been taken by the plaintiff-garnishor, James K. Polk.
For the sake of clarity we shall refer to the garnishor as plaintiff or James, and the garnishee, Dwayne Little, either as Little, or Dwayne. Frank M. Polk, the defendant in the original action and the present judgment debtor, will be called Frank.
Highly summarized the record reveals that James K. Polk and Frank M. Polk are brothers between whom the bonds of brotherly love and affection had become somewhat strained. On October 17, 1966, James filed an action against brother Frank and Margaret, his wife, to recover some $18,000. This lawsuit apparently stemmed from the sale of a Ford agency at Burden, Kansas. The action was eventually tried, and resulted in a judgment against Frank for $17,000, plus considerable interest.
Dwayne Little, the garnishee, is a brother-in-law of the Polk brothers, having married their sister. During the 1966 Thanksgiving season Mr. Little, accompanied by his wife, took his mother to Arizona where she was going to stay. On this trip the Littles visited in the home of the Frank Polks, who had moved to Arizona from their former home in Douglas, Kansas. At one time during the visitation, and following a telephone conversation between Frank and some unknown person, Frank told Dwayne that he wanted to sell a contract which he held on his Douglas home— that Douglas was about 1200 miles away and the contract was hard for him to sell where he was.
Mr. Little inquired what Frank wanted for the contract, which at the time carried an unpaid balance of approximately $7200, and Frank replied he would sell it for $3500. Little then said that if he could have a week after he got home he would see if he could raise the money, and if so, he would take the contract. On arriving home Mr. Little was able to borrow the money from his bank by giving a mortgage on his own home, and on December 5, 1966, he sent Frank a check for $3500. Frank’s assignment of the contract to Dwayne was recorded on December 12, 1966.
The contract itself is not set out in the record, but the files of the bank in which it was escrowed show that it bore 5%% interest and was payable in monthly amounts of some $52, each payment to be applied first on interest and the remainder on the unpaid principal. The last payment is shown to become due on April 1, 1986.
As we have previously said, James K. Polk recovered judgment against Frank in November, 1969. In the month of June, 1970, garnishment proceedings were initiated by James in which the issue ultimately became whether Frank’s assignment of the real estate contract to Dwayne was valid or whether it was void as a fraudulent conveyance. The trial court found the contract to be valid and entered judgment in Little’s favor on the following findings:
“. • . the Court, after considering the briefs filed and the evidence offered, finds that the garnishee had no knowledge that the defendants Frank M. Polk and Margaret B. Polk committed fraud in their assignment of the real estate contract referred to in the pleadings to Dwayne Little.
“The Court further finds that there was no attempt on the part of either of the defendants or the garnishee to defraud the plaintiff in any manner and the Court finds that the garnishee is not in any manner liable to the plaintiff on his answer in garnishment.”
The single point raised by the plaintiff on appeal is phrased in this fashion:
“The court erred in finding no fraudulent conveyance in a transaction wherein defendants Frank M. Polk and Margaret B. Polk conveyed a certain tract of real property and assigned an agreement for a Warranty Deed to Duane [sic] Little.”
It is the plaintiff’s position, as we understand his argument, that the evidence of record presents a classic example of a fraudulent conveyance in that six so-called badges or indicia of fraud have been established, which in their total impact, constitute a prima facie case of fraud — and that this prima facie showing has not been rebutted.
There is little disagreement between the parties as to the legal principles applicable to fraudulent conveyances. In his brief the plaintiff contends that the elements of a fraudulent conveyance are first, an intent on the part of the grantor to hinder, delay or defraud his creditors and second, participation by the grantee in the fraudulent scheme or such knowledge of facts and circumstances by the grantee as would impute knowledge of the fraud to him. In general, this appears to be a fair statement of prevailing law. (McDonald v. Gaunt, 30 Kan. 693, 2 Pac. 871; Gollober v. Martin, Sheriff, 33 Kan. 252, 6 Pac. 267; 37 Am. Jur. 2d, Fraudulent Conveyances, § 6-9, pp. 694-701.)
Continuing, the plaintiff calls attention to evidence which he maintains establishes six badges or indicia of fraud which he asserts are generally recognized: (1) a relationship between grantor and grantee; (2) the grantee’s knowledge of litigation against the grantor; (3) insolvency of the grantor; (4) a belief on the grantee’s part that the contract was the grantor’s last asset subject to a Kansas execution; (5) inadequacy of consideration; and (6) consummation of the transaction contrary to normal business procedures.
Prior decisions of this court have accorded general recognition to the badges or indicia of fraud which are mentioned and one or more of them have been applied in this jurisdiction in certain specific situations. (Gollober v. Martin, Sheriff, supra; McDonald v. Gaunt, supra; Gish v. Unruh, 160 Kan. 757, 165 P. 2d 417; Stephenson v. Wilson, 147 Kan. 261, 76 P. 2d 810; Vickers v. Buck, 60 Kan. 598, 57 Pac. 517; Cox v. Cox, 39 Kan. 121, 17 Pac. 847.)
On the other hand, our decisions have recognized that whether a conveyance is or is not fraudulent as to creditors is largely a question of fact. (Houska v. Lake, 148 Kan. 229, 80 P. 2d 1102; Bank of Inman v. Graves, 148 Kan. 468, 83 P. 2d 666.) That being so, our ancient rule must be applied in this case, namely, that where findings made by the trial court are supported by substantial competent evidence, they are to be upheld on appeal. (See cases in 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, § 507.)
Before taking a look at the evidence we should point out that the testimony consisted entirely of that given by the plaintiff himself, and that given by Dwayne Little, whom the plaintiff called as his own witness. Only Mr. Little’s testimony has been included in the record, and we must advert to it alone, in conjunction with the surrounding circumstances, in determining whether the findings of tire trial court, on which judgment was entered in favor of Dwayne, can be sustained.
It will not be necessary to enter into an extended or detailed discussion of Dwayne Little’s testimony, but a few portions require brief comment. First, it should be noted that Mr. Little testified he bought the contract because he thought it was a good investment; that he paid $3500 for the contract and mortgaged his own home to raise the purchase price; that he had just finished paying off the mortgage at the time o£ trial (December, 1970) and had not, at that point, recouped his $3500 investment. Although Little had heard of James’ lawsuit against Frank and the amount of damages claimed, he testified he knew nothing about their fraternal troubles or their business relationships and had never inquired into them— that they were none of his business and he didn’t poke into other people’s affairs. He testified positively that he had made no arrangements to pay Frank any of the money he received under the contract and that he was in no way obligated to do so.
We discern little in the record on which to base the plaintiff’s claim that Frank was insolvent. Certainly Dwayne did not testify to that effect; he merely testified that Frank said he needed the money — without defining the need. Nor does the record bear out the statement that Frank, to Dwayne’s knowledge, had removed all his assets from this state and had placed them beyond the reach of Kansas process.
As to the manner in which the sale was transacted, it is true Dwayne testified he did not inspect the house at that particular time. However, both he and his wife were familiar with the property, having visited the Polk family during 1965 while Frank was living there, and Dwayne, who had lived in that vicinity all his life, was doubtless familiar with its value on the local market.
The burden of establishing a fraudulent conveyance lies with the party asserting it. (Cox v. Cox, supra.) The plaintiff appears not to dispute this rule but he maintains that a prima facie case of fraud has been made through the cumulative effect of the several badges of fraud which he maintains have fairly been established. But even though it be assumed that an inference of fraud could be drawn from the circumstances which surrounded the transaction in question, the inference would be subject to refutation and rebuttal. It was said in Baughman, Sheriff, v. Penn, 33 Kan. 504, 6 Pac. 890, that while certain circumstances may give rise to an inference of fraud, the law never presumes it, and that any person who alleges that acts have been committed in bad faith and for a fraudulent purpose takes upon himself the burden of proving his allegations. This question was treated in Schreiber Milling Co. v. Nutrena Mills, Inc., 149 Kan. 276, 87 P. 2d 577, where the court said:
“Plaintiff next argues that there are certain badges of fraud in the record which compel a finding of fact against the defendants. ‘Badges of fraud’ is defined as meaning those signs or indicia from which its existence may be inferred as a matter of law. Many of those badges are pointed out in this record. This is but another way of raising the question with which we have already dealt. While these badges might give rise to an inference of fraud, this inference would be subject to explanation and contradiction by other circumstances and by oral testimony. A badge of fraud is but little more than a suspicious circumstance. . . .” (p.282.)
We could not say the trial court was unjustified in concluding that fraud was not established on Little’s part. The court was in a position, which we are not, to observe the manner and demeanor of Mr. Little while on the stand, dining which time he was subjected to searching cross-examination. The court could thus evaluate the quality of his testimony; it had the opportunity to assess his credibility under oath, and to weigh the evidence he gave in the light of all the surrounding circumstances which bore upon the question of intent. In pondering the adequacy of consideration, the court might have taken into account, among other matters, the fact that interest had to be paid on Dwayne’s mortgage to the bank, as well as the length of time that Dwayne would be out of the use of his money and the possibility that default could occur in payments due under the contract (although they have since been made like clock work) which might entail lengthy and expensive litigation. Overall it might be said that some of the assumptions which the plaintiff has seen fit to draw from Little’s testimony will bear close scrutiny, for it appears to us that more than one inference might reasonably have been drawn from certain segments of the evidence.
The real underlying question in this case concerns the bona fides of the transaction had between Frank M. Polk and Dwayne Little. This was a question to be determined by the trial court. (First Nat’l Bank v. Cottingim, 145 Kan. 330, 65 P. 2d 293.) The trial court found, in effect, there was no fraudulent intent on Little’s part in entering the transaction and no attempt on the part of either assignor or assignee to defraud the plaintiff. We deem the findings to have sufficient substantial support in the evidence to require affirmance of the judgment entered by the trial court, and it is so ordered. | [
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The opinion o£ the court was delivered by
Kaul, J.:
Defendant appeals from a felony conviction for the sale of d-lysergic acid diethylamide, commonly called LSD, in violation of provisions of the Uniform Narcotic Drug Act, (K. S. A. and K. S. A. 1971 Supp. 65-2601, et seq. [repealed, Laws of 1972, Chapter 234 (Laws of 1972, Chapter 235, amending Chapter 234)]). A jury was waived and in a trial to the court defendant admitted the drug sale but claimed entrapment as a defense.
The state’s evidence consisted primarily of the testimony of David Stolzheise, an employee of the Sedgwick County Sheriff, who was assigned to the narcotic section. At the direction of Detective Goddard of the sheriff’s staff, Stolzheise met with Fred Griffin, an informant, and Goddard the evening of July 23, 1971. Stolzheise was searched by Goddard and given $15 in marked money. Stolzheise and Griffin, pursuant to directions by Goddard, proceeded to the Nomar Theater Parking Lot in Wichita. Stolzheise testified that he and Griffin were looking for a person other than defendant.
Stolzheise further testified:
“Q. Were there people at this location?
“A. Yes, quite a few.
“Q. Continue, please.
“A. We got out and asked if the suspect was around. Somebody said that he had just left. We looked around. Mr. Griffin saw Mr. Houpt and he went over to where he was.
“Q. Did you go with him?
“A. I was about five feet away from him.
“Q. Did Mr. Houpt and Mr. Griffin have a conversation: yes or no.
“A. Yes, they did.
“Q. Were you present?
“A. Like I said — about five feet away from them.
“Q. Could you hear what they said?
“A. Yes.
“Q. What was the conversation?
“A. Mr. Griffin asked Mr. Houpt if he had any LSD for sale, and he said, ‘Yes.’ Mr. Griffin pointed me out to Mr. Houpt at which time Mr. Houpt came over and asked me if I would like to buy some LSD, and I responded with ‘Yes.’
“Q. Did you have a further conversation?
“A. Only as we walked back to his car. He asked me if I would like to buy eight hits for fifteen dollars, I think, and I said, ‘No.’ And then he asked me if I would go nine for sixteen, and I said, ‘No.’ I said that he was still a little high on his price.
“Q. Did you then give him any money?
“A. When we reached the car he was riding in I did give him fifteen dollars.
“Q. Apparently you went to a car, is that correct?
“A. Yes.
“Q. What kind of a car was it?
“A. A black ’59 Ford Sedan.
“Q. Did you have any idea before you went to the Nomar Parking Lot that you would have anything to do with this car?
“A. No.
“Q. How is it you went to this car?
“A. That is where Mr. Houpt took me.
“Q. What happened at the car?
“A. I gave him the fifteen dollars. He put it in his pocket and then he got into the passenger side of the car and proceeded to count me ten hits of LSD and handed them to me, and then he counted five more and handed them to me.”
Stolzheise further testified that he received a telephone call the next day from a man who identified himself as defendant. The result of the telephone call was that Stolzheise met with defendant at another parking lot. Defendant claimed that he had given Stolzheise too many pills and after some conversation, Stolzheise refunded five dollars to defendant. Stolzheise testified that he refunded the five dollars because he thought it was best to try to cover his undercover work.
Defendant, who testified in his own behalf, said that he was standing in a group talking when Griffin and Stolzheise approached and that “Griffin asked us in the group if there was any LSD.” Defendant said he did not have any LSD in his possession, but that a friend handed him some, and then he and Stolzheise went to a friend’s car where the transaction was consummated.
In view of the trial court’s decision we are bound to accept the version of the state’s witnesses. Under familiar rules governing appellate review, we will not weigh the evidence or pass upon the credibility of defendant’s testimony — that was the function of the trial court as the trier of facts. (State v. Duke, 205 Kan. 37, 468 P. 2d 132; and State v. Scott, 199 Kan. 203, 428 P. 2d 458.) Thus, the narrow question before us is whether the conduct of Griffin and Stolzheise amounted to entrapment as a matter of law.
Defendant’s chief argument on appeal is based primarily on the proposition that the substantive law of this state was changed by the codification of the defense of entrapment in K. S. A. 1971 Supp. 21-3210 of the new Kansas Criminal Code which reads:
“A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless:
“(a) The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a co-conspirator; or
“(b) The crime was of a type which is likely to occur and recur in the course of such person’s business, and the public officer or his agent in doing the inducing or soliciting did not mislead such person into believing his conduct to be lawful.”
Defendant takes the position that under the provisions of subsection (a) of the new statute, any solicitation by an officer or his agent, absent previous knowledge of prior criminal activity on the part of the accused, amounts to entrapment as a matter of law. Defendant says that the new statute has wrought a complete change in the law established by previous decisions of this court with respect to the defense of entrapment as applied to a solicitation situation instigated by a law enforcement officer or his agent.
The state, on the other hand, contends that the proper interpretation of subsection (a) of the new statute is that where the ready compliance and conduct of a defendant is such that it may be inferred that criminal intent was already in existence in defendant’s mind then, if the officer or agent does nothing more than merely afford an opportunity for commiting the crime in furtherance of such criminal intent or purpose, the defense of entrapment is not established.
Much of defendant’s argument on appeal consists of his attempt to show a difference in the import of 21-3210, supra, and that of our decision in the recent case of State v. Reichenberger, 209 Kan. 210, 495 P. 2d 919, which was not decided within the purview of the new statute. However, since our decision in Reichenberger and subsequent to the filing of briefs and oral arguments in the instant case, we have filed our decision in State v. Williamson, 210 Kan. 501, 502 P. 2d 777. In Williamson the defense of entrapment was considered in the light of 21-3210 and although some factual differences are to be noted, we believe our holding in that case controls our decision here. In Williamson the sale of marijuana was solicited by telephone, but the evidence largely relied upon by the state to negate the defense of entrapment was the “willingness” of Williamson. In this connection we said:
. . It is clear that Williamson had in mind a sale of marijuana, or he would not have brought it along. . . .”
In deciding the evidence negated the defense of entrapment, our holding was expressed in paragraph eight of the syllabus in these terms:
“An accused can rely on the defense of entrapment when he is induced to commit a crime which he has no previous disposition to commit; however, he cannot rely on the defense when he has shown a predisposition for committing the crime and was merely afforded an opportunity to consummate the crime by law enforcement officers.” (Syl. f 8.)
In the instant case, according to the testimony of Stolzheise he heard Griffin ask defendant if he had any LSD for sale — defendant answered yes. Griffin then pointed out Stolzheise to defendant. At this point defendant approached Stolzheise and actually solicited him to purchase some LSD. After a price was agreed upon, defendant escorted Stolzheise to the car where Stolzheise counted out fifteen dollars and defendant counted out fifteen "hits” of LSD. This testimony constituted substantial competent evidence for the trier of facts to reasonably infer a previous intention or purpose to commit the crime and is sufficient to negate any reasonable inference that defendant was entrapped. As between defendant and Stolzheise, defendant was the instigator.
Although what has been said effectively disposes of this appeal, we believe the arguments made by counsel in their exhaustive briefs filed herein deserve consideration.
In Reichenberger the history of the defense of entrapment was chronicled, and for the first time, in this jurisdiction, entrapment was recognized as a legal defense in a factual situation involving the sale of contraband such as narcotics or illicit intoxicating liquor. In Reichenberger we said that uncensorable solicitation by a police officer met with ready and willing compliance by the actor is generally accepted as evidence of previous criminal intention. Instead of a showing of the existence of previous criminal intention, the language of subsection (a) of 21-3210, supra, requires that criminal purpose be originated by the accused. We see no difference in the import of the codified language and the parallel expression in Reichenberger. Roth the new statute and our decision in Reichenberger restricts the conduct of the officer to that of merely affording an opportunity for committing the crime in furtherance of the criminal intent or purpose existing or originating in the mind of the accused. We believe the words “criminal purpose,” as used in subsection (a), connotes only a general intent or purpose to commit the crime when an opportunity or facility is afforded for the commission thereof, rather than an intent to sell to a specific person at a specific time and place. We are not inclined to read requirements of specificity into the general term "criminal purpose” selected by the legislature in its codification. In other words, we believe the provisions of 21-3210, in essence, are merely a codification of what this court has said in Reichenberger and State v. Wheat, 205 Kan. 439, 469 P. 2d 338. The limitations on the conduct of an officer or his agent in subsection (a) that he “merely afford an opportunity or facility for committing the crime” echoes what was said in Reichenberger relating to the conduct of officers or agents involved. In this connection we repeat our holding in Reichenberger that, in considering the facts relative to the issue of entrapment, it is essential to distinguish between a trap set for the unwary criminal and a trap set to ensnare the innocent and law abiding citizen. The 'valid purpose of the defense of entrapment is to protect the innocent from trickery or impermissible conduct on the part of a law enforcement officer or his agent so designed as to create a substantial risk that a person would acquire and sell narcotic drugs in the absence of criminal purpose to do so originating or previously existing in the mind of such person. In the instant case it cannot be said that the conduct of officer Stolzheise created any such substantial risk.
In his brief on appeal defendant makes much of the fact that the Judicial Council Committee notes appended to 21-3210 indicate that the statute was patterned after a proposed section of the Wisconsin Criminal Code, which was later deleted. Defendant cites Wisconsin Law Review Vol. 156 (May), p. 367, to the effect that the proposed codification of the defense of entrapment was deleted by the Wisconsin Advisory Committee prior to the submission of the proposed code to the Wisconsin legislature for the reason that it was not the law. Defendant uses “deletion” by the Wisconsin Committee as a basis for his argument that the Kansas legislature has changed the law. We do not speculate as to the reason for the deletion by the Wisconsin Advisory Committee, but we agree that the Kansas legislature did change the law as it existed at the time by raising entrapment in a solicitation situation to the stature of a legal defense. We accomplished essentially the same change in the case law of this jurisdiction in our decision in Reichenberger in which we overruled previous cases holding to the contrary.
Regardless of what happened in Wisconsin; as we noted in the Reichenberger opinion the legislature of Illinois in 1961 did adopt a codification of entrapment in essentially the same language as used in our 21-3210, supra, through subsection (a). The Illinois statute now appears as Illinois Annotated Statutes, 1972, Ch. 38, §§ 7-12, of the Illinois Criminal code and reads:
“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent or either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated,.” (Emphasis supplied.)
The language of the Illinois statute like that of 21-3210 negates the defense of entrapment if the officer or his agent merely affords a person the opportunity or facility for committing an offense in furtherance of a criminal purpose originated by such person.
Illinois courts have read their statute in the same light in which we see 21-3210 (a). In the case of People v. Gonzales, 125 Ill. App. 2d 225, 260 N. E. 2d 234 (1970), in considering the statute the court said:
. . Entrapment is not available to one who has the intention and design to commit the criminal offense, and who does commit the essential acts constituting it, merely because a law officer or his agents, for the purpose of securing evidence, affords such person the opportunity to commit the act, or purposely aids and encourages a defendant in its perpetration. . . . But, although a defendant has no prior criminal record, this factor alone cannot overcome evidence of his ability and instant willingness to make the unlawful sale as soon as the opportunity to do so is presented. . . .” (p.232.)
Further in the opinion the court commented on the evidence as follows:
“On this record we conclude that the testimony of the witnesses for the State established beyond a reasonable doubt a willing sale, with no overbearing persuasion on the part of the agents, except the suggestion of what the purchase money could buy. The only reluctance displayed at the particular time of the admitted sale related to the price to be paid. This evidence showed that defendants were ready to make the unlawful sale and had quick access to a substantial quantity of narcotics. This established the criminal design in the minds of the defendants resulting in the acceptance of the opportunity offered, thus negating the defense of entrapment. . . .” (pp. 232, 233.)
See, also, People v. Pickett, 2 Ill. App. 3d 560, 276 N. E. 2d 751, (1971).
We believe the evidence recited by the Illinois court in the Gonzales opinion precisely fits the testimony of officer Stolzheise in the instant case. The conduct of defendant, according to the testimony of Stolzheise, showed instant willingness and ability to make the unlawful sale as soon as the opportunity to do so was afforded. There was no persuasion or urging on the part of either Stolzheise or Griffin. In fact defendant made the offer of sale to Stolzheise.
The judgment is affirmed. | [
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Per Curiam:
This is an appeal by the state from a directed verdict of acquittal by the district court.
Jack Bamberger was charged by information with felonious theft of an automobile tape player and five tapes of the value of more than $50 on January 16, 1970. The trial of the case to a jury began December 14, 1971.
The evidence showed the tape player and five tapes were stolen from an automobile owned by Kim Goebel. On April 3, 1971, they were found by a patrolman in an unoccupied and locked truck parked off of the highway next to a railroad crossing five miles east of Jetmore on U. S. Highway No. 156. The tape player and tapes were partially covered by a coat in the front seat of the truck. The defendant and his brother returned to the truck and asked the patroman what he was doing there. They were told he was checking the abandoned truck and checking traffic on the highway. The sheriff, who had arrived by that time, asked for and received permission from the defendant to check the serial number on the tape player. The serial number was the same as the one stolen from the Goebel car. The defendant was asked where he got the tape player and tapes. He answered that he bought them from a friend whose identity he would not disclose because he did not “want to rat on a friend.”
At the conclusion of the state’s evidence the court sustained defendant’s motion for acquittal. The state has appealed from this ruling.
The view of the trial court, with which this court concurs, was that the finding of stolen goods in defendant’s possession more than fourteen months after the theft was too remote in point of time to give rise to a presumption of guilt, and that standing alone it was insufficient to go to the jury.
The general rule in Kansas was well stated in the early case of State v. Cassady, 12 Kan. 550, where it was said:
“While the recent possession is a circumstance pointing towards guilt, and therefore always competent as evidence, yet before it can be deemed sufficient, standing by itself, to warrant a conviction, it must be so recent after the time of the larency as to render it morally certain that the possession cannot have changed hands since the larceny.” (Syl. ¶ 6.)
In so far as the defendant is concerned this appeal is purely academic since the jury had been selected and sworn to try the case, the state’s evidence had been submitted and the state had rested. That the defendant was thus placed in jeopardy is too well established in this jurisdiction to warrant further discussion.
The judgment is affirmed. | [
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Per Curiam:
This is an appeal by the petitioner in a proceeding instituted pursuant to K. S. A. 60-1507 from an order of the sentencing court dismissing the petition without a hearing and without appointing counsel for the petitioner.
The petitioner’s original conviction in November, 1963, for the offenses of kidnapping in the first degree and forcible rape was affirmed on appeal in State v. Kinnell, 197 Kan. 456, 419 P. 2d 870.
The motion here presented is the petitioner’s fourth attack upon his sentence under 60-1507, supra. His first motion was dismissed because his direct appeal to this Court was still pending. His second was dismissed by the trial court and no appeal was taken. A third motion was filed in 1968 and again denied. On appeal it was affirmed in Kinnell v. State, 205 Kan. 445, 469 P. 2d 348.
The trial court in its memorandum noted the petitioner had filed at least fifteen petitions for writs of habeas corpus and other relief in the federal courts.
The motion presently asserted by the petitioner to vacate his sentence under 60-1507, supra, is an abuse of remedy and was properly dismissed. (Robinson v. State, 209 Kan. 667, 498 P. 2d 35.)
The judgment of the lower court dismissing the proceeding is affirmed. | [
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Per Curiam:
On June 6, 1969, appellant filed notice of a claim for damages for personal injuries with the city clerk of Overland Park, Kansas. The injury to appellant occurred on May 18, 1968, when appellant rode his bicycle on the city streets and struck a hole. Appellant is a nine-year-old child. On April 29,1970, appellant filed suit in the district court of Johnson County on the claim. Appellee moved for dismissal pursuant to K. S. A. 12-105, a statute governing the timely filing of claims of injured persons against a city. The statute required that a written notice of the claim must be filed with the city clerk within a period of three months after the injury occurred. The statute was amended in 1970.
After a hearing, the case was dismissed by the district court because of failure to comply with K. S. A. 12-105. Appellant appealed tp this court.
Appellant contends that the suit should not have been dismissed because he is a minor child and the statute should not operate against him as to the time for filing of his claim.
The law is well settled in this area. In Workman v. City of Emporia, 200 Kan. 112, 434 P. 2d 846, this court held that a timely filing of a written statement of a personal injury claim pursuant to K. S. A. 12-105 is a condition precedent necessary to sue a city in tort.
Appellant did not file within the three month period under the statute. This is not in question. The rule of Workman follows a long line of Kansas cases cited in the appellee’s brief.
In Dechant v. City of Hays, 112 Kan. 729, 212 Pac. 682, the statute was held to apply equally to minors and adults. The same holding was made in Thomas v. City of Coffeyville, 145 Kan. 588, 66 P. 2d 600.
This case presents no new question of law and the decision of the district court is affirmed. | [
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Per Curiam:
The controlling question in this case is whether the evidence supports the trial court’s finding that the appellee, Marilyn Sue Anthony, mother of Pamela Kline, had not failed or refused to assume her duties as a parent for two consecutive years prior to the filing of the petition for adoption by the child’s stepmother. The father consented to the adoption but the mother did not. Based on its finding the trial court held that the consent of the mother was necessary and the petition for adoption was denied.
We hold that in view of the burden of proof which rested on the petitioner-appellant to prove failure or refusal of the mother to assume the duties of a parent for two years tibe decision of the trial court is supported by the evidence and should be affirmed.
Appellant raises questions as to the admissibility of certain evidence, but we find no reversible error in this regard.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This was a proceeding commenced in the probate court to establish a demand against the decedent’s estate, which was disallowed by the court after a hearing on the merits. The district court dismissed the appeal from the probate court for reasons hereafter detailed, and the petitioner, Ernest William Goodbum, has appealed. The facts are not in dispute.
George Goodburn and his first wife Nellie had lived together at Medicine Lodge for over 38 years prior to her death in 1958. They were frugal people and invested wisely, and had accumulated a substantial amount of property, mostly in corporate stocks. George and Nellie had a mutual will which left all their property absolutely to the survivor, except that in case of common casualty or in the case of the survivor dying without having made other disposition of his or her property, the remainder of their estates, after certain minor bequests, would go one-half to the petitioner or his heirs, and one-half to Nellie’s nephews, Donald E. Wright and his two'brothers. George and Nellie had no children or other close relatives.
One year after Nellie’s death, and on October 19, 1959, George married Minnie Pearl Johnson, who was a spinster, age 54. Minnie had very little property.
In 1961, George made a new will, consented to by Minnie, leaving her his residence, personal belongings, and about $10,000 in corporate stocks, absolutely. The balance of his estate of over $100,000 was placed in trust for Minnie’s use during her lifetime, and then one-half to the petitioner or his heirs, and one-half to Donald E. Wright and his wife, Marjorie. As indicated, Donald E. Wright was Nellie’s nephew, and the petitioner was a brother of George.
During George’s marriage to Minnie he transferred the larger part of his personal property to Minnie and himself in joint tenancy. George died December 22, 1966, at the age of 80 years.
On August 17, 1970, Minnie executed her last will and testament which devised and bequeathed the home in Medicine Lodge to Donald E. Wright and his wife, and the remainder of the property was to be reduced to cash and one-half paid to Donald E. Wright and his wife, and one-half paid to Tempest Johnson, a sister-in-law of Minnie. Donald Wright was designated executor. The dates hereinafter mentioned present the legal issue which is before this court for determination.
Minnie died October 11, 1970. On November 10, 1970, her will was admitted to probate and Donald E. Wright was appointed executor. Notice to creditors and others concerned was first published two days later.
On June 25, 1971, the petition of Ernest William Goodburn for specific performance of an oral agreement to bequeath and devise one-half of the residue of the joint tenancy property to the petitioner, was filed in the probate court. On July 26, 1971, after due notice, a hearing was had on the petition and the matter was taken under advisement by the probate court. On July 29,1971, petitioner filed a request for permission to amend his petition to conform with the evidence. A copy of the requested amendment was also filed.
On August 25, 1971, the probate court denied the petition for specific performance of the oral agreement to bequeath and devise, and denied the right to file the amendment to the petition. On August 31, 1971, the petitioner duly perfected an appeal to the district court.
On October 27, 1971, the petitioner requested permission to file an amended petition in the district court, and on December 2, 1971, permission was granted.
On January 3, 1972, the executor and Tempest Johnson, a beneficiary, filed a motion to dismiss the appeal for the reason the appeal was not taken within nine months from the date the will was admitted to probate on November 10, 1970, pursuant to K. S. A. 59-2404.
The district court sustained the motion to dismiss, and the petitioner has appealed to this court from the order of dismissal. The issues on appeal are quite limited. The district court stated in its memorandum opinion as follows:
“It seems to me that what is said in Yeager vs. Yeager, 155 Kan. 734, pretty well determines that we must interpret the relief sought here as being an attempt to get rid of the will or to effect a result contrary to the obvious intent of the testatrix and is an action to contest the will. This being the case, I must hold that it was brought too late.
“I must admit that the more recent case of In Re Estate of Sterba, 193 Kan. 56, casts at least some doubt on the decision I have reached but I cannot believe it was tire intention of the Court in Sterba to overrule the long established doctrine guiding the decisions in the Yeager case and Foss vs. Wiles. About all that can be said for Sterba is that it decided the case before the Court and on the facts of that particular case. Perhaps the degree of the attack upon the will or the intention of the testator has something to do with it. Frankly I do not profess to know just where to draw the line between an ordinary claim on the one hand and a will contest on the other, but I am satisfied that Petitioner here cannot prevail without effecting a result contrary to the intent of the testatrix.”
The petitioner-appellant contends that a petition for an allowance of a demand based on an oral contract to devise or bequeath by will constitutes a claim or demand under K. S. A. 59-2239, and that an appeal may be taken within thirty days from an adverse ruling under the provisions of K. S. A. 59-2404.
The appellees take the position that, as did the district court, the petition constituted a will contest, and that an appeal must be taken within nine months from the date the will is admitted to probate.
The issue presented is whether the proceeding is a will contest or a claim or demand against the decedent’s estate. A decision of this question will determine the applicable statute fixing the time of appeal to the district court.
As indicated, the district court relied upon the case of Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438, where we held:
“An action filed in the district court for the specific performance of an oral contract with a decedent which challenges the right of the testator and the validity of the probated will to pass to title to property belonging to a decedent’s estate to the persons therein named, is in effect an action to contest the terms and provisions of the will, over which action district courts now have only appellate jurisdiction.” (Syl. ¶ 7.)
And, also, Yeager v. Yeager, 155 Kan. 734, 129 P. 2d 242, where it was held:
“An action brought for the purpose of getting rid of a will, or of defeating the testator’s intent as therein expressed, or of rendering nugatory the provisions of the will is an action to ‘contest’ the will and may only be brought in conformity with the statutes applicable to the contest of wills.” (Syl. ¶ 1.)
In the opinion it was said:
“. . . Our forthright decisions . . . have held that any action whose plain and essential purpose is to get rid of a will — to effect a result contrary to the obvious intent of the testator — is an action ‘to contest’ the will and can only be brought in conformity with the statutes dealing with the contest of wills.....” (1. c. 735.)
It must be conceded that if the rule above announced is approved and permitted to stand, the judgment in the instant case must be affirmed. However, the petitioner contends the rule announced in Foss and Yeager incorrectly states the law and should be overruled or disapproved. We agree. No specific statement that a demand is in effect a will contest, or that a will contest is tantamount to a demand, has been made by this court in any case in which such a statement or conclusion was necessary to the decision.
Both Foss and Yeager were actions for the specific performance of certain oral agreements to leave property differently than the respective testators left the property by their wills. Both were commenced in the district court — not the probate court — and, undoubtedly, at that time, this court thought the important part of the holdings with respect to the construction of the new probate code was to require that actions for that relief be commenced in the probate court, and not the district court. In any event, the broad language quoted above from Yeager has caused unnecessary confusion in our probate law ever since.
The author of Bartlett’s Kansas Probate Law and Practice (Rev. ed.), Mr. Samuel Bartlett, distinguished between a "demand” and a "will contest” after it was apparent there was some confusion in our law on the subject. In 2 Bartlett, op. cit, supra, § 780, he said:
“In a few of the early decisions construing the code provision relating thereto appeared some confusion as to what constituted a demand against a decedent’s estate and what constituted opposition to probate of his will or a contest thereof. Such was not to be unexpected in the construction of a new enactment as comprehensive as the probate code. A careful analysis of the decisions, however, dispels any confusion that may have arisen from such decisions, and from later decisions has emerged a clearly defined distinction between a demand against a decedent’s estate and the contest of a decedent’s will or opposition to the probate thereof. The decisions fall into one of three classes.
“First class. A will may be invalid and not entitled to probate for the reason that it is a forgery or has been revoked, that the testator did not possess the rights of majority, lacked mental capacity, or that the will was procured by fraud or undue influence. If, when a will is presented for probate, probate thereof is opposed on any of these or similar grounds and any of them is established in the probate court, or, in case of further contest of the will by appeal or otherwise, the ground or grounds therefore are established, the probate of the will should be denied. None of this constitutes a demand against the decedent’s estate within the meaning of the word ‘demand’.
“Second class. Another situation arises when a will is validly executed with all the formalities prescribed by law by a person capable of executing it; but the will, or some part thereof, is or may be rendered nugatory by some statute or positive rule of law. For example, the testator may havé devised or bequeathed his property, or part of it, to a foreign state, or in trust in violation of the rule against perpetuities. The will may be challenged on the ground that it runs counter to statute or positive rule of law and is therefore void. If the will is thereby rendered nugatory as to the property devised or bequeathed in violation of such statute or positive rule of law, the property involved passes according to other provisions of the will or by the law of intestate succession. A demand against a decedent’s estate in such case or cases is not in any manner involved.
“Third class. A will may be executed with all the formalities prescribed by law by a person of full age and sound mind, free from restraint, undue influence, and fraud, and all the provisions thereof are lawful. But the testator may have had contractual obligations outstanding and unperformed at his death. These contractual obligations, existing at the time of his death, constitute demands which may be presented against the decedent’s estate, but proceedings for their exhibition for allowance and enforcement constitute neither opposition to probate nor contest of the decedent’s will.
“A few illustrations will suffice to indicate the distinction: (1) A is possessed of an estate of ten thousand dollars, bequeaths it to B, and dies. C holds A’s promissory note for ten thousand dollars and exhibits his demand which is allowed and paid from the assets of the estate. (2) A is possessed of an estate consisting of Blackacre, devises it to B, and dies. A is under an enforceable agreement with C to leave Blackacre to C, who exhibits his demand which is allowed and specifically enforced. (3) The facts of this illustration are as in illustration (1) and (2) except that A died intestate with B as his sole heir. In each of these illustrations, B as sole beneficiary under the will or as sole heir takes nothing, not because a will is refused probate or is by contest set aside, nor because the law of intestate succession is inapplicable, but because the assets of the estate are exhausted by the payment or enforcement of the demand, and there is nothing upon which the will or the law may operate.
“In either or any event the will, if any, is entitled to probate and may not be effectively contested on the ground that a claimant has an enforceable demand against the estate. The admission of a will to probate is something entirely different from the exhibition, allowance, and payment or enforcement of a demand. The word ‘demands’ has reference only to claims against the estate of a decedent which, if allowed, will reduce the corpus of the estate or the amount of property which would otherwise be subject to division or distribution among the devisees and legatees of a testate decedent. After all such demands are satisfied it is the duty of the court to determine the devisees and legatees entitled to the estate and their respective shares or interests therein, if any estate remains after the satisfaction of all such demands, and to assign the same to the devisees and legatees by its decree.”
What has just been quoted is in harmony with what was stated by this court in In re Estate of Sterba, 193 Kan. 56, 392 P. 2d 136. There, the wife asserted her rights under a contract more than nine months after her husband’s will had been admitted to probate, but within the time permitted by the nonclaims statute. (K. S. A. 59-2239.) The court said:
If the assertion by Ruth of her rights under the contract amounted to a ‘contest’ of the will her recourse was to appeal from the order admitting the will to probate within nine months from the date of such order. (G. S. 1949, 59-2401 [1] and 59-2404.) She did not do so. On the other hand, if the assertion of her rights under the contract if to be regarded as being in the nature of a ‘claim’ against the estate her recourse was to do exactly what she did — file a claim within the period provided by the nonclaim statute. (G. S. 1949, 59-2239.)”
“We think it is clear that the assertion of Ruth’s rights under the antenuptial contract to the after-acquired Coffey county land was essentially, and must be regarded as, a ‘claim’ against Henry’s estate — rather than a ‘contest’ of his will. No contention is made that Henry lacked capacity to execute the will, or that it was procured through fraud, duress or undue influence. Except for the assertion of her claim to the after-acquired property no attempt is made to upset any provisions of the will. . . .” (1. c. 60, 61.)
In the present case, the petitioner is seeking to have the contractual obligation to bequeath and devise one-half of the property, enforced. He is in no way challenging the validity of the will, or the right of the beneficiaries to take under the will, or its operation as to the remaining property. He is merely asserting a claim or demand pursuant to the equitable power of the probate court (K. S. A. 59-301 [12]) to construe the alleged oral agreement of the decedent to bind the property of her estate so far as to fasten a trust on it in favor of the petitioner, and to enforce such trust against the devisees and personal representative of the decedent. (Anderson v. Anderson, 75 Kan. 117, 123, 88 Pac. 743; Meador v. Manlove, 97 Kan. 706, 156 Pac. 731; Braden v. Neal, 132 Kan. 387, 392, 295 Pac. 678.)
It would serve no useful purpose to extend this opinion further. The court is constrained to hold that where a party seeks to enforce a contractual obligation to devise or bequeath a portion of a decedent’s estate, the proceeding constitutes a demand against the estate and not a will contest, and an appeal may be taken by any person aggrieved by the decision of the probate court, to the district court within thirty days after the making of such order, judgment, or decree. (See 57 Am. Jur., Wills, §§ 180, 718, pp. 158, 488.) Any statement or decision in Foss or Yeager, or any statement in any other opinion of this court to the contrary is disapproved.
As indicated, the petitioner’s appeal was timely perfected. The district court granted the petitioner’s request to amend his petition for demand. All reasonable inferences in favor of the amended demand are required to be drawn, but they remain susceptible to proof by substantial competent evidence. With that observation, we conclude the order to dismiss the appeal in the district court was erroneous.
The district court’s order is reversed with directions to reinstate the petitioner’s appeal and to proceed in accordance with the views expressed herein.
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The opinion of the court was delivered by
Harman, C.:
William Ray Owens and Donald Ray Carlisle were jointly charged with and tried for the offense of taking indecent liberties with a child (K. S. A. 1971 Supp. 21-3503). A jury found them guilty, they were sentenced and they now appeal.
Certain background developed by prosecution evidence should be briefly stated for an understanding of some of the rulings now asserted as error.
On June 14, 1971, the victim of the alleged offenses, a fifteen year old unmarried female, was at a food service stand in Derby, Kansas. She, along with two girl friends, had, a few minutes earlier, taken a ride around Derby with appellants in the latters’ automobile. Appellants, eighteen years of age, told the victim they were going to see another young man and that she was welcome to accompany them, which she agreed to do. Instead of going to the place stated, appellants immediately drove to the Derby airport where, in a wheat field, the alleged offenses occurred.
The victim testified in substance to the following: Upon arrival at the airport appellant Owens forcibly removed her from the automobile, forced her to the ground and removed her shorts and underpants; he demanded she remove her blouse and bra; she struggled with him and managed to escape; Carlisle pursued and caught her; he told her he would protect her and she should just pretend when he laid on top of her; Carlisle first, and then' Owens, each had sexual intercourse with her; they told her not to say anything as it would only hurt her reputation; they later drove her back to Derby and released her near where some friends of hers were walking; she told one of these girls that Owens and Carlisle had raped her.
The parents of the victim were notified and they in turn called the police. Other evidence will be related in connection with the points raised.
Appellants’ first specification of error is that the court improperly allowed the prosecution witnesses to remain in the courtroom during the presentation of all the evidence despite their twice-repeated request to separate or exclude them. In State v. Guffey, 205 Kan. 9, 468 P. 2d 254, we dealt with the same complaint. There our review of precedent on the subject led us to conclude that exclusion or sequestration of the witnesses is not a matter of right but lies in the sound discretion of the trial court. We did state, however, that:
“. . . [0]n proper application, timely made, exclusion of witnesses is generally allowed and we believe it to be the better practice.” (p. 16.)
In Guffy we examined the record and found no abuse of discretion in the trial court’s refusal to apply the rule. Subsequently, in State v. Theus, 207 Kan. 571, 485 P. 2d 1327, we restated the rule thus:
“Whether to exclude prospective witnesses from the courtroom prior to their testimony, and whether to make exceptions, is within the judicial discretion of a trial court in the absence of a showing of prejudice.” (Syl. f 4.)
In the case at bar the record reveals that in addition to the victim the prosecution produced as witnesses a police laboratory investigator and the three girl friends to whom the victim complained immediately upon her release by appellants (there could have been other prosecution evidence not included in the record here in as-much as insufficiency of evidence is not asserted upon appeal). We have reviewed the record testimony and will allude later to that of the three girls. The elements of the offense charged were simple — the prosecution was required only to prove that appellants had sexual intercourse with a child under the age of sixteen years who was not a spouse to either or that they touched her person with intent to arouse or satisfy the sexual desires of each. Our review convinces us that the failure to sequester the witnesses did not in anywise result in prejudice to the appellants.
Appellants complain that evidence respecting their character was impermissibly received at a time when they had not placed their character in issue. During the prosecution’s case in chief one of the three girl friends testified as to her observations after appellants had released the victim from their car. She testified that upon seeing the appellants she and the other girls had run. The state then inquired why they had run and the following colloquy occurred:
“A. We had heard. . . .
“Mr. Appeling: I would object to what they had heard.
“The Court: The objection is overruled.
“Q. You may answer.
“A. We had heard that Owens and Carlisle weren’t good guys to be around with. We didn’t want to associate with them.
“Q. Can you describe to the jury . . .
“The Court: The objection must now be sustained.”
Appellants did not thereafter request the court to strike the answer from the record or to admonish the jury to disregard it, although the court might well have sua sponte taken this action. The general instructions given to the jury are not shown in the record. They may well have included the usual admonition that the jury should consider only the testimony admitted into evidence (see PIK § 51.04, Criminal). Re that as it may, we do not believe prejudicial error occurred in the incident. Nothing suggests bad faith on the part of the prosecution in making the inquiry and at the time of the objection it was not apparent that hearsay testimony was being exclusively called for. When it developed that hearsay was being elicited the trial judge acted promptly in reversing his ruling.
Appellants further assert the testimony of the three girl friends was erroneously admitted because it was hearsay. One of the girls testified that upon release from appellants’ automobile the victim was scared, she had blood on her legs, she was crying, she didn’t know what to do and wanted help and she was afraid of pregnancy; further that she said she had been raped, it hurt and appellants had told her she’d be ruined if she talked about the occurrence. Another girl friend testified she saw the victim crying and calling for help, that she had dirt and scratches on her legs and she said respecting appellants “they did it to me.” The third girl testified she saw the victim running and crying upon her release from appellants’ car and that she said, “They did it to me.” In response to a question as to whether the victim explained, the witness replied, “They raped her”; later she testified that rape was what she determined the victim had meant.
The trial court overruled appellants’ objections to the foregoing testimony on the ground that any hearsay statements contained therein fell within the exception mentioned in K. S. A. 60-460 (c) which provides:
“Hearsay evidence excluded, exceptions. Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
“(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness: . . .”
We think the trial court correctly admitted the challenged testimony (see State v. Jones, 204 Kan. 719, 466 P. 2d 283). Beyond this exception, spontaneous statements so closely connected with the time and place of the occurrence as to be a part of the res gestae have always been considered exceptions to the hearsay rule, particularly in cases of sexual assault (see, e. g., State v. Langston, 106 Kan. 672, 189 Pac. 153). This further exception is now embodied in K. S. A. 60-460(cl) which provides:
“(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement (1) which the judge finds was made while the declarant was perceiving the event or condition which the statement narrates, describes or explains, or (2) which the judge finds was made while the declarant was under the stress of a nervous excitement caused by such perception, or (3) if the declarant is unavailable as a witness, a statement narrating, describing or explaining an event or condition which the judge finds was made by the declarant at a time when the matter had been recently perceived by him and while his recollection was clear, and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort: . . .”
Clearly the statements made by the victim were also admissible under exception (d).
Appellants further complain the trial court erroneously permitted the third girl friend to express a conclusion when she testified she determined that rape was meant when the victim exclaimed, “They did it to me”. We see no prejudice in the incident. Under both K. S. A. 60-419 and 60-456(a) a trial judge is vested with wide discretion in determining whether a witness has the prerequisite knowledge and experience to express an opinion. The opinion here challenged was one which could rationally have been inferred by the witness based upon her perception and experience.
Appellants contend that insufficient foundation was shown to permit the reception into evidence over their objection of certain prosecution exhibits. These exhibits consisted of four articles of the victims clothing, three photographs of her body taken at a hospital shortly after the incident, four photographs of the wheat field showing mashed-down grain with red stains, and a container of grass bearing a red substance taken from the scene the next morning. The complaint is devoid of merit. Suffice it to say ample foundation for the admission of each exhibit was supplied by the testimony either of the victim or a police laboratory investigator, who was also a photographer, and in some instances by the testimony of both.
Finally, appellants contend that in the sentencing process the trial judge abdicated his statutory responsibility in that he refused to consider probation or any subsequent modification of sentence which might be recommended either by the state reception and diagnostic center or by the state board of probation and parole.
The journal entry filed in the case first recited the facts of appellants’ conviction and their committal to the custody of the state director of penal institutions for imprisonment for a period of not less than one year nor more than twenty years. It then stated:
“It Was the Order of the Court that the Sheriff of Sedgwick County, Kansas, shall transport the defendants to the Kansas State Reception and Diagnostic Center in Topeka for examination and for the recommendation of said Diagnostic Center as to the advisability of probation or parole for said defendants. It was also ordered that the defendants be not returned to this court.
“It Was Then By the Court Ordered that if said Diagnostic Center should, by its report, recommend probation or parole, then the defendants, together with said Diagnostic Center’s report, shall be referred to the State Board of Probation and Parole which shall promptly determine whether the defendants are to be placed on probation or parole.
“It Was By the Court Further Ordered that if said Board of Probation and Parole shall decide in favor of probation or parole, then, in that event, the defendants shall be placed on probation or parole by said Board under supervision of the State Director of Probation and Parole, as provided by law.
“It Was By the Court Further Ordered that if said Diagnostic Center should not recommend probation and parole, or if said Board of Probation and Parole should deny probation or parole to defendants, then, in that event, the defendants shall be committed to the State Director of Penal Institutions for the serving of said sentences as required by law.”
Thereafter the trial judge addressed the following letter to the state board of probation and parole:
“November 11, 1971
“Honorable Alonzo E. Dempsey
“Kansas Board of Probation and Parole
“State Office Building
“Topeka, Kansas 66612
“Mr. Dempsey:
I appreciate your letter referring to my odd journal entry. As you may have guessed, this was part of my effort to place probation where it belongs. After watching and hearing district judges on the subject of probation for these twenty years, I am concluding that probation is not a proper function for the courts. Judges are not trained to apply social therapy to abnormal minds nor are many of them interested in doing so; hence, it is my view that they also are not very successful at it.
“I was not certain what your attitude would be concerning your authority in the field of probation and parole prior to the serving of a minimum term. I thought the law was probably against it, but I hoped at the same time that you might find a way through administrative procedures and such.
“It seems that my only hope now is to hope that you and the members of your Board would use your good influence with the Legislature to place the granting of probation with you and the Diagnostic Center where I feel it belongs. By working at it, perhaps some day this will happen.”
Although the journal entry of judgment does not so recite nor does the record reflect the fact, appellee’s brief indicates that appellants did apply to the trial court for probation, which was not granted. Appellee points out in support of the trial court’s action that the granting of probation is exclusively a function of the trial court and its decision denying probation is not subject to appellate review, citing State v. Benson, 207 Kan. 453, 485 P. 2d 1266.
Appellants respond that the trial court refused to consider the question of probation or modification of sentence but instead attempted to shift that responsibility to an agency not authorized by law initially to so act. Such would seem to be the clear import of the journal entry and the trial court’s letter, taking the two together.
The complaint is, not that appellants were denied probation or modification of sentence, but that the trial court refused to consider these matters at all.
Our sentencing article, K. S. A. 1971 Supp. 21-4601, commences with this proviso:
“Construction. This article shall be liberally construed to- the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctly treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
The dispositions which a trial court may make upon conviction of crime are found in K. S. A. 1971 Supp. 21-4603, which in pertinent part provides:
“(1) Whenever any person has been found guilty of a crime upon verdict or plea and a sentence of death is not imposed, the court may adjudge any of the following;
“(a) Commit the defendant to the state director of penal institutions or to jail for the confinement for the term provided by law;
“(c) Release the defendant on probation;
“(d) Suspend the imposition of the sentence;
“(e) . . . Any time within one hundred twenty (120) days after a sentence is imposed or within one hundred twenty (120) days after probation has been revoked, the court may modify such sentence or revocation of probation by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If an appeal is taken and determined adversely to the defendant, such sentence may be modified within one hundred twenty (120) days after the receipt by the clerk of the district court of the mandate from the supreme court. The court may reduce the minimum term of imprisonment at any time before the expiration thereof when such reduction is recommended by the state board of probation and parole and the court is satisfied that the best interests of the public will not be jeopardized and that the welfare of the prisoner will be served by such reduction. The power here conferred upon the court includes the power to reduce such minimum below the statutory limit on the minimum term prescribed for the crime of which the prisoner has been convicted. The recommendation of the board and the order of reduction shall be made in open court.”
Noteworthy is the fact that under this statute the grant of probation may be either with or without imposition of sentence. It is not our prerogative to say when probation is or is not to be granted. As indicated, the legislature has placed that function in the trial court and has provided certain tools to aid in the discharge of that duty. K. S. A. 1971 Supp. 21-4604 authorizes, albeit permissively, the use of presentence investigation and report in determin ing disposition. K. S. A. 76, Article 24a, established the state reception and diagnostic center, which has the duty to study offenders and make reports and recommendations as to their disposition, including reports and recommendations to the sentencing courts. The use of any such report and recommendation by the trial court is, of course, integrated with the court’s power to modify or reduce sentence pursuant to 21-4603.
Nor would we here attempt to prescribe criteria for the exercise of the probation power. We note, however, that such guidelines have been promulgated by persons engaged in the operation and study of the correctional process. ABA Standards, Sentencing Alternatives and Procedures, Approved Draft, 1968, § 2.2 provides:
“General principle: judicial discretion.
“The sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.” (p. 14.)
Section 2.3 of the same work provides:
“Sentences not involving confinement.
“(c) A sentence not involving confinement is to be preferred to a sentence involving partial or total confinement in the absence of affirmative reasons to the contrary.” (pp. 14-15.)
ABA Standards, Probation, Approved Draft, 1970, § 1.3 provides:
“Criteria for granting probation.
“(«) The probation decision should not turn upon generalizations about types of offenses or the existence of a prior criminal record, but should be rooted in the facts and circumstances of each case. The court should consider the nature and circumstances of the crime, the history and character of the offender, and available institutional and community resources. Probation should be the sentence unless the sentencing court finds that:
“(i) confinement is necessary to protect the public from further criminal activity by the offender; or
“(ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or
“{Hi) it would unduly depreciate the seriousness of the offense if a sentence of probation were imposed.” (p. 10.)
We mention these criteria to emphasize the importance of individual treatment for each offender rather than disposition under a blanket credo — that which the legislature appears to have had in mind in its enactment of 21-4601 as the objective of our correctional process.
The sentencing judgment is a judicial function and as such is unreviewable when within statutory limits and procedural safeguards have been observed (State v. Benson, supra). But it is a function which may not be delegated, that is, a trial court may not divest itself of this responsibility. The initial grant or denial of probation or parole under 21-4603 is a part of the sentencing process vested in the trial court and is not to be arbitrarily dispensed with no matter how well-intentioned the motives may be.
Here, the trial court was vested with discretionary authority in adjudging sentence. However, we do not now deal with a question of abuse of that discretion because the court never exercised such discretion. The offended parties are entitled to an exercise of that authority. The court was wrong in its belief on the matter and the sentencing aspect of the judgment must be reversed.
Our disposition is this: That part of the judgment sustaining appellants’ convictions is affirmed; the remainder of the judgment committing appellants to the custody of the state director of penal institutions for a period of not less than one year nor more than twenty years, denying probation, forbidding appellants’ return to the trial court, referring any recommendation made by the state reception and diagnostic center to the state board of probation and parole and directing the latter to take action, is reversed; the case is remanded to the trial court for disposition in accordance with K. S. A. 1971 Supp. 21-4603 and the views herein expressed; it is further directed that such proceedings shall be conducted by another judge to be selected by the administrative judge of the district court of Sedgwick county.
Judgment affirmed in part and reversed in part and remanded with directions.
APPROVED BY THE COURT. | [
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Per Curiam:
Appellant, Ardyce Craig Wahl, and appellee, Rosa Rogers, had been residents of Wabaunsee county and friends for a number of years. Appellant was to be married on September 28, 1967. She owned a house in Alta Vista. In view of the impending marriage, she decided to sell it to appellee. The closing agreement, deed and promissory note were executed September 23, 1967. Appellant wanted to complete the transaction prior to the marriage. The parties agreed to go to Alma where appellant would purchase revenue stamps for the deed and appellee would record the instrument. On September 26, 1967, appellant drove to appellee’s home, planning to go to Alma. Appellee wanted to take a case of eggs with her to deliver to her daughter. She inquired if the parties should take her car. It was raining and appellant replied, “No, get in.”
En route to Alma appellant’s car collided with a vehicle driven by one Elton Maas. Appellee brought this action against appellant and Maas to recover damages for personal injury arising out of that collision. The jury absolved Maas of negligence. He is not involved in this appeal. The jury found the negligence of appellant to be the proximate cause of the accident.
There was no claim of gross and wanton negligence in this case. After discovery depositions appellant moved for summary judgment on the grounds that as a matter of law appellee was a guest within the meaning of the guest statute, K. S. A. 8-122 (b). The trial court overruled that motion, stating that there still existed a question of fact as to whether or not appellee was a guest in appellant’s car. We find no error in that ruling. At the close of appellee’s evidence and again after all the evidence was in, appellant moved for a directed verdict for the same reason. These motions were overruled. Appellee then moved that the court rule as a matter of law that appellee was not a guest and not submit the guest statute issue to the jury. The trial court sustained this motion, saying:
“. . . [T]here is no material dispute whatsoever as to the evidence that the plaintiff (appellee) was not a guest and therefore the guest instruction is not being given.”
There was no essential variance between the deposition testimony and the evidence at the trial. Appellant and appellee both testified that the purpose of the trip was to complete the business transaction involving the sale of the appellant’s house to appellee. The trip was made to Alma so that appellant - could purchase revenue stamps for the deed and so that appellee could record the deed. The transaction would thus be completed prior to appellant’s marriage.
This court said in Carruth v. Cunningham, 207 Kan. 781, 486 P. 2d 1401:
“In determining the question whether a person is or is not a ‘guest’ within the meaning of the statute, among the many elements to be considered are the identity and relationship of the parties; the circumstances of the transportation; the nature, type and amount of ‘payment’; the benefits or advantages resulting to the respective parties growing out of the transportation; whether the ‘payment’, of whatever nature, constituted a tangible benefit to the operator and was the motivating influence for furnishing the transportation; and the nature and purpose of the trip. (Following Bedenbender v. Walls, 177 Kan. 531, Syl. ¶ 4, 280 P. 2d 630.)” (Syl. ¶ 2.)
This court also said in Gorelick v. Ernstein, 200 Kan. 619, 438 P. 2d 93, at page 622:
“. . . [W]e have said more than once that where the transportation tends to promote the common interest of passenger and driver or where it is primarily to promote some interest of the driver, the passenger is not a guest within the meaning of the statutes. (Cope v. Radford, 191 Kan. 617, 623, 383 P. 2d 563, and cases cited therein.)”
When we apply the legal principles of those cases to the factual circumstances presented here, we find that the trial court was correct in ruling as a matter of law that appellee was not a guest as contemplated by the guest statute.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is a declaratory judgment action to determine whether a revocable trust was terminated by the settlor prior to hig death. The trial court ruled that a letter to the trustee signed by the settlor did not revoke the trust. This appeal ensued.
Appellants are the executor of the estate of the settlor, William S. Phillips, deceased, and the beneficiaries named in the settlors will, except certain minor children represented by a guardian ad litem, such minors also being ultimate beneficiaries under the trust agreement. The principal appellee is Inez A. Neal, named as an immediate beneficiary in the trust agreement upon the death of the settlor. Appellee First National Bank in Wichita is the trustee and has appeared throughout the action as a stakeholder.
The trust assets consisted of stocks, bonds, securities, money and other personal property. Under the trust agreement settlor was to receive the income from this property during his lifetime. The trust agreement provided that upon settlors death Inez A. Neal was to receive $2,000 and the trustee was to retain $15,000 in trust, distributing the income from the $15,000 to Neal during her lifetime. At settlor’s death all other trust property was to be distributed among settlor’s children. Upon the death of Neal the trust was to terminate and the entire remaining trust estate was to be distributed to settlor’s grandchildren (which group included the three minors already mentioned).
On February 25, 1971, settlor was hospitalized in Parsons, Kansas. On that date he had a telephone conversation with Elizabeth Phillips, receptionist in the Wichita law office of her husband, James S. Phillips, Sr., who was settlor’s son. Settlor stated he wanted to revoke the trust in question and he desired his son to come to Parsons immediately to prepare the revocation. Since settlor’s son was not able to make the trip to Parsons at the time requested, settlor then had Mr. J. J. Flynn, board chairman of the State Bank of Parsons, come that day to the Parsons hospital. Settlor had been associated in the banking business with Mr. Flynn for fifty years and was at the time a vice-president and trust officer in the bank headed by Mr. Flynn. At the hospital settlor requested Mr. Flynn to prepare a letter addressed to the trustee revoking the trust agreement. Settlor stated he wanted to get the property contained in the trust back to Parsons where it belonged and into his own hands. At the same time settlor gave Mr. Flynn two letters he had received from appellee Neal, telling him to throw them in the wastebasket. Mr. Flynn then had a letter prepared at the bank and he returned to the hospital where settlor read the letter and signed it. The relevant part of the letter, dated February 25, 1971, ad dressed to the trustee bank in Wichita and to the specific attention of a named trust officer, was as follows:
“I wish to terminate the living trust which I have with the First National Bank of Wichita just as soon as practicable.
“Will you please have the various certificates transferred to my name and forward them to me in care of The State Bank of Parsons. . . .”
Mr. Flynn testified that in his own trust department he would have considered the trust revoked upon receipt of the letter. The trustee bank concedes it received the letter a day or two after it was mailed February 25, 1971.
Settlor died March 11, 1971, at which time the trust assets had not been returned to him as he had requested. Apparently the trustee had received information questioning settlor s mental competency to revoke the trust and this was its only reason for not having transferred the assets prior to the filing of this action inasmuch as it considered the letter sufficient to revoke the trust.
After settlors death appellant State Bank of Parsons was appointed executor of his estate and it commenced this action seeking a declaration that the trust had been revoked. The pleadings filed were of a general nature except the trustee bank did raise the question of settlors competency at the time he signed the revocation letter. No pretrial conference was held for the purpose of further defining the issues. The trial court ruled that the settlor was possessed of all of his mental faculties and was competent at the critical time. It further ruled that the February 25, 1971, letter signed by the settlor did not of itself terminate the trust and that at the time of settlor’s death the trustee was still owner of the trust property for all purposes of the trust.
Appellant contends this latter ruling was based on a misinterpretation of the trust agreement and it asserts the letter did revoke the trust. The question raised on appeal may be divided into two parts: (1) Whether this particular trust could be revoked by letter, without more, and (2) whether the letter sufficiently expressed settlor’s present intent to revoke the trust?
The applicable standard of review for both these questions is broadly stated in Brungardt v. Smith, 178 Kan. 629, 290 P. 2d 1039, as follows:
“Regardless of the construction made by the trial court of a written instrument, on appeal the instrument may be construed and its legal effect determined by the supreme court.” (Syl. ¶ 1.)
In Herd v. Chambers, 158 Kan. 614, 149 P. 2d 583, this court stated:
“The ordinary rule for the construction of written instruments applies to trust agreements and where the terms of such an agreement are plain and unambiguous the intention of the parties thereto will be ascertained from the words used therein and the legal consequences of that intention when ascertained will be given force and effect.” (Syl. If 1.)
It is familiar trust law that a settlor may revoke a trust if and to the extent that by the terms of the trust he has reserved such a power (Restatement of Trusts 2d, §330 [1], p. 132). This principle is embodied in K. S. A. 58-2417, which provides:
“Every power, beneficial or in trust, shall be irrevocable, unless an authority to revoke it is reserved in the instrument creating the same.”
The first question raised requires consideration of the trust agreement. That instrument contained the following provisions:
“Item I.
“(b) The Trustee is vested with full and complete legal and equitable title to all of the property and estate hereby transferred and entrusted to it until the termination of such trust and until such trust property shall be actually paid over, transferred and delivered to the person or persons designated as beneficiaries hereunder.
“Item II.
“This trust shall be revocable in whole or in part by the Settlor at any time during his lifetime without permission of or notice to any person except by written notice to the Trustee. On the death of the Settlor, this trust shall become irrevocable.”
Although the trial court did not specifically so state, it evidently considered the revocation proviso in Item II to be interrelated with and dependent upon the provisions of Item I (b), which vests full title in the trust assets in the trustee during the life of the trust and until the property is actually paid over to the beneficiaries. The trial court apparently considered, as now urged by appellee Neal, that the actual transfer of the trust corpus by the trastee back to the settlor was a prerequisite to revocation of the trust. As to this the trial court was in error.
Item II prescribes the method of revocation of the trust by the settlor; that method is — written notice by him to the trustee. Item I (b) is concerned with assuring to the trustee during the existence of the trust the necessary and appropriate powers to carry out its provisions and, when its purposes have been fulfilled, the same powers to get the property into the hands of the proper beneficiaries. Nothing more can be read into it.
It is true the settlor was a beneficiary of the trust as he was to receive its income during his lifetime. However, in revoking the trust he was not reclaiming the funds in his role of beneficiary— he was exercising his reserved power as settlor to terminate the trust. Item 1(h) bears no relation to Item II and the two are not to be read together as prescribing the method of revocation.
As indicated, Item II provides for revocation of the trust upon written notice to the trustee — no more. Explicitly, the consent of no one is required nor is any action on the part of anyone else called for. By signing and delivering the letter to the trustee, settlor completed the only step required by the agreement for revocation of the trust. The obvious conclusion must be, and we so hold, that when a trust agreement provides in plain and unambiguous language for revocation by written notice to the trustee of settlor’s present intent to revoke, such notice to the trustee is, without more, sufficient to effect revocation. Applied here, this means settlor could by letter delivered to the trustee revoke the trust.
We believe the second question, whether settlor’s letter expressed a present intent to revoke, is also to be answered in the affirmative. The first paragraph of that letter stated: “I wish to terminate the living trust . . . just as soon as practicable.” Settlor’s use of the phrase “just as soon as practicable” does not under the circumstances dilute or negate a present intent to revoke. The second paragraph of the letter directed the trustee to transfer the various certificates to settlor’s name and forward them to settlor. This second paragraph clearly manifested a present rather than a future intent to revoke and at the same time it shed light on that which settler intended when he used the phrase “as soon as practicable.” Settlor had been in the banking business for approximately fifty years, during the latter part of which he had served as a trust officer. Presumably he was familiar with the clerical transactions necessary to transfer the trust assets back to his name and he realized time would be required to accomplish this. Settlor simply wanted action without unnecessary delay. Under these circumstances we must conclude that receipt by the trustee of the February 25th letter effectively revoked the trust and the trial court erred in holding otherwise.
The judgment is reversed.
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The opinion of the court was delivered by
Prager, J.:
This is an original proceeding in mandamus brought by the Johnson County Sports Authority as plaintiff to compel the defendant Elwill M. Shanahan, Secretary of State, to correct an error in the final enrolled version of House Bill 1715 which was passed by the 1972 Kansas legislature. Specifically plaintiff seeks to compel the secretary of state to insert the word “not” in section 1 (/) of the statute and to publish the statute as corrected in the 1972 Session Laws. In addition to relief by way of mandamus plaintiff prays this court to render a declaratory judgment construing House Bill 1715 section 1 (f) as corrected.
The facts in this case are undisputed and are essentially as follows: During the 1972 session of the Kansas legislature House Bill 1715 was introduced authorizing the creation of a county sports authority by the board of county commissioners in an urban area county. The county sports authority is granted the authority to construct and operate sport facilities, to issue revenue bonds, and to pledge revenues derived from the facilities and from a proposed entertainment tax to the payment of the revenue bonds. The proposed entertainment tax is to be levied by the board of county commissioners when requested by the sports authority. The impact of the entertainment tax is to fall upon persons engaged in the business of providing sleeping accommodations in connection with any motel, hotel or tourist court. The entertainment tax is calculated on the basis of a percentage of the gross rental receipts paid by transient guests for sleeping accommodations. In addition the entertainment tax is levied upon the gross receipts derived from the retail sales of food by persons engaged in the business of operating a cafe, cafeteria, lunchroom or restaurant.
The problem arose in this case because of a printing error in the final enrolled bill which was signed by the governor. In the engrossed bill, which was acted upon and passed by both houses of the legislature, section 1 (f) of the bill defined a “transient guest” as follows:
“ ‘Transient guest’ means a person who occupies a room in a hotel, motel or tourist court for not more than thirty-one (31) days.” (Emphasis supplied.)
The error in printing occurred when the engrossed bill was sent to the state printer by the chief clerk of the house. In preparation of the enrolled bill the state printer omitted the word “not” from section 1 (/) so that that section defined the term “transient guest” as follows:
“ ‘Transient guest’ means a person who occupies a room in a hotel, motel or tourist court for more than thirty-one (31) days.”
The chief clerk of the house did not notice the error in the enrolled bill and sent the enrolled bill with the printing error to the house and senate leaders and to the governor for their signatures and signed the same himself. The enrolled bill with the printing error omitting the word “not” in section 1 (/) was published in the official state paper on March 13, 1972.
Thereafter the Board of County Commissioners of Johnson County, Kansas, acting under the authority of House Bill 1715 established the Johnson County Sports Authority. The attorneys for the Johnson County Sports Authority discovered the omission of the word “not” in the enrolled bill and became concerned as to the legality of the proposed revenue bonds and entertainment tax as authorized by the bill. The printing error was called to the attention of the secretary of state. The Johnson County Sports Authority requested the secretary of state to publish House Bill 1715 in the 1972 Session Laws with the inclusion of the word “not” in section 1(f). The secretary of state declined to take this action. In lieu thereof the secretary of state inserted an editorial dagger between the words “for” and “more” in the definition of “transient guest” in section 1 (/) and on page 415 of the 1972 Session Laws at the conclusion of House Bill 1715 she caused to be placed a footnote calling attention to the printing error in the following language:
“In the printing of the enrolled bill, the word ‘not’ was omitted.”
The Johnson County Sports Authority then brought this original proceeding in mandamus in the supreme court.
In this proceeding the plaintiff contends in substance that an order of mandamus should be issued directing the secretary of state to insert the word “not” in section 1 (/) of House Bill 1715 as published in the 1972 Session Laws. Plaintiff takes the position that an action in mandamus will he to compel the secretary of state to exercise her editorial judgment under the provisions of K. S. A. 1971 Supp. 45-310 (d) in preparing the bound volumes of the 1972 Session Laws. Plaintiff further urges the court to render a declaratory judgment construing section 1 (†) of House Bill 1715 by including the word “not” at the point where it was erroneously omitted in the definition of “transient guest” in section 1 (/) of the final enrolled bill.
In her answer the secretary of state admits that she has the power to exercise editorial judgment in the preparation of the volumes of the 1972 Session Laws as provided by K. S. A. 1971 Supp. 45-310 (d). She specifically denies that such power includes the right to make changes or correct errors of omission in formally enrolled bills of the legislature. Finally the secretary of state contends that in her official capacity she did in fact exercise her editorial judgment as directed by K. S. A. 1971 Supp. 45-310 (d) by preparing the volumes of the 1972 Session Laws which have now been published and are in the process of distribution.
On the basis of the undisputed record before this court we hold that the petition for a writ of mandamus should be denied and further that under the circumstances of this case this court has no original jurisdiction to enter a declaratory judgment construing section 1 (f) of House Rill 1715.
In arriving at this decision we have concluded that the statutory duty of the secretary of state to exercise editorial judgment in the preparation of the volumes of the session laws as provided by K. S. A. 1971 Supp. 45-310 (d) does not include the power to change the language of enrolled bills. On the contrary the secretary of state must copy the enrolled bills and publish them in the session laws as they are written without changes or corrections.
K. S. A. 1971 Supp. 45-310 covers the general subject of the publication of the session laws passed at each session of the legislature. It requires that such publication shall be accomplished under the direction of the secretary of state as follows:
“45-310. Session laws; publication, printing, title and contents, (a) AD acts and joint resolutions passed at each session of the legislature shall he published in one or more volumes, under the direction of the secretary of state, as soon as practicable after the close of the session at which the same are passed. Such acts and joint resolutions shaD take effect and be in force from and after such publication, unless otherwise specificaDy provided in such act or resolution. Such volume or volumes shaD also have included therein an index, the veto messages of the governor, if any, all certificates that a bill or joint resolution or item or items of a bill have been approved notwithstanding the governor’s veto, if any, and all concurrent resolutions adopted by the legislature, except such resolutions extending congratulations or making a memorial for any decedent. Whenever any biD, act or resolution of the legislature shaD provide that the same shall be effective from and after its publication in the statute book, the words “publication in the statute book” mean publication in the session laws of Kansas as provided in this section.
“(b) Such volume or volumes shaD be titled and may be cited as “_ Session Laws of Kansas.” The blank shall be filled with the numeric designation of the year, in the case of regular sessions, and in the case of special sessions the blank shaD be fiDed with the numeric designation of the year followed by the word “Special.” Such title shall be printed on the back of each volume.
“(c) The sections in such volume or volumes shaD be printed in the same manner as the 1967 Session Laws of Kansas, except (1) material added to an existing section of the statutes shaD be printed in italic type, and (2) material deleted from an existing section of the statutes shall be printed in canceled type.
“(d) The secretary of state is authorized and directed to exercise editorial judgment in preparation of such volume or volumes to the end that the purposes of this act are made effective.” (Emphasis supplied.)
As pointed out above the plaintiff in this action in mandamus seeks to compel the secretary of state to exercise the editorial judg ment provided for in 45-310 (d). It is the position of the plaintiff that the term “editorial judgment” requires the secretary of state to change the enrolled form of House Bill 1715 by inserting the word “not” in section 1 (f) of that statute so that the 1972 Session Laws would show that section to read as follows:
“ ‘Transient guest’ means a person who occupies a room in a hotel, motel or tourist court for not more than thirty-one (31) days.” (Emphasis supplied.)
This raises the vital question of whether or not the secretary of state in exercising her editorial judgment in preparation of the session laws may publish acts of the legislature in a form other than that contained in the original enrolled bills on file in the secretary of state’s office.
The answer to this question may be found in sections K. S. A. 1971 Supp. 45-301 (a) and 45-311, which were enacted along with 45-310 as a part of L. 1969, Ch. 249.
K. S. A. 1971 Supp. 45-301 (a) provides in part as follows:
“45-301 . . . (a) All bills and resolutions which shall have been finally passed or adopted by both houses of the legislature shall be enrolled by printing at the state printing plant on parchment paper, and such enrolled bills or resolutions shall be taken and held by the legislature and by each house thereof and by all courts to be the only proper enrolled bill or resolution . . .”
K. S. A. 1971 Supp. 45-311 states:
“45-311. Certification of session laws. The secretary of state shall prefix to each printed volume of the laws his certificate that the acts and resolutions therein contained are truly copied from, the original enrolled acts and other official documents of the legislature, and specifying the date of the publication of such volume. The certificates mentioned in this act shall be evidence of the facts contained therein.” (Emphasis supplied.)
It is clear from the provisions of 45-311 that the secretary of state in preparing the session laws is required to copy the original enrolled bills and to reproduce them without modification. There is nothing in the statutes which even suggests that the secretary of state has the authority to strike or modify provisions of enrolled bills or to add words not originally contained therein. We hold that the “editorial judgment” which the secretary of state is directed to exercise by K. S. A. 1971 Supp. 45-310 (d) refers only to the organization, preparation and publication of the volumes of the session laws and does not include the right to make changes in the enrolled bills. An exercise of “editorial judgment” by the secretary of state would reasonably include the determination of the general format of the session laws and the inclusion of such matters as explanatory notes and an official directory of state officials. The secretary of state also has a wide discretion in the organization and classification of enrolled bills by subject matter under various chapter headings. Likewise the secretary of state may provide an appropriate index of bills by numerical number and a descriptive word index describing the various bills by subject matter.
The plaintiff’s petition for a writ of mandamus should be denied here for two reasons. First, the defendant secretary of state has already exercised her editorial judgment in the preparation of the 1972 Session Laws as contemplated by K. S. A. 1971 Supp. 45-310. She has prepared and had printed the 1972 Session Laws with explanatory notes and an official state directory. The various enrolled bills as enacted by the 1972 legislature have been organized into chapters by subject matter. She has included the messages from the governor and an appropriate index. As required by K. S. A. 1971 Supp. 45-311, the secretary of state has prefixed to each printed volume a certificate that the printed acts contained therein are true and correct copies of the enrolled laws and resolutions which were passed by the 1972 legislative session. It is clear that the secretary of state has exercised her editorial judgment and therefore has performed her statutory duties pertaining to the publication of the 1972 Session Laws.
We further hold that mandamus is not a proper remedy here under the well recognized rule that mandamus will not lie to compel a public official to perform an unauthorized act. (Wichita Public Schools Employees Union v. Smith, 194 Kan. 2, 397 P. 2d 357; Paul v. Topeka Township Sewage District, 199 Kan. 394, 430 P. 2d 228; Rosenthal v. State Board of Canvassers, 50 Kan. 129, 32 Pac. 129.) As we have stated heretofore the secretary of state in preparing the session laws after each session of the legislature is required to include for printing bills in their enrolled form without deletions or additions. In the case at bar should we by mandamus compel the secretary of state to insert the word “not” in section 1 (/) of House Bill 1715, we would in effect require her to perform an act unauthorized by and contrary to statutory provisions. For these reasons the petition for mandamus must be denied.
This leaves for consideration the question whether this court should enter a declaratory judgment construing section 1 (f) of House Bill 1715. We hold that since there is no consequential relief available here by way of mandamus this court has no original jurisdiction to enter a declaratory judgment construing the provisions of the statute or determining its constitutionality. The decisions of this court clearly establish the principle that the supreme court can take original jurisdiction under the declaratory judgment statute only where consequential relief could be obtained through quo warranto, mandamus or habeas corpus. (Public Service Commission v. Kansas Gas and Electric Co., 121 Kan. 14, 246 Pac. 178; Consumers Cooperative Ass’n v. Arn, 163 Kan. 489, 492, 183 P. 2d 453.) By following these decisions we in no way deny the original jurisdiction of this court in an appropriate case to construe statutes where such construction is necessary to determine the nature or extent of some official duty sought to be enforced in an original proceeding in mandamus. (Emporia Township v. Williams, 149 Kan. 860, 89 P. 2d 919.) In fact we have construed K. S. A. 1971 Supp. 45-310 (d) here to determine the nature and extent of the duty of the secretary of state in exercising her “editorial judgment” in preparing the session laws.
We also think it important to emphasize that the declaratory relief sought is not appropriate in this case since there is no justiciable controversy between adverse parties. It is of course horn-book law that there must be at least two parties who can assert rights which have developed or will arise against each other before an actual controversy can exist which is justiciable under our declaratory judgment act. (Boeing Airplane Co. v. Board of County Comm’rs, 164 Kan. 149, 188 P. 2d 429; Riley v. Hogue, 188 Kan. 774, 777, 365 P. 2d 1097; Fairfax Drainage District v. City of Kansas City, 190 Kan. 308, 374 P. 2d 35.) In this case the defendant secretary of state has no actual interest adverse to the plaintiff in the construction or the validity of House Bill 1715. Any interest she might have is purely academic. In a declaratory judgment action there should be suitable adverse parties so that all issues pertaining to the construction or validity of a statute may properly be raised to avoid multiplicity of litigation.
We also wish to point out that the denial of original jurisdiction in this court to enter declaratory relief here does not preclude either of the parties from seeking relief in some court with appropriate original jurisdiction.
The motion of John Francis and White Haven, Inc. for leave to intervene in this case is denied for the reason that there is nothing in the determination of this case adverse to the interests of the proposed intervenors.
The petition for mandamus is hereby denied. | [
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The opinion of the court was delivered by
Harman, C.:
Elmore Norris, III, was convicted of escape from the penitentiary without breaking, as denounced by K. S. A. 21-734, and sentenced under the habitual criminal act to a term of not more than six years. He now appeals.
Appellant’s principal contention is lack of speedy trial — more specifically, that the state failed to comply with the provisions of the Uniform Mandatory Disposition of Detainers Act (K. S. A. 62-2901, et seq., superseded by K. S. A. 1971 Supp. 22-4301, et seq.)
Despite a statement to the contrary in its brief, the prosecution, upon oral argument before this court, agreed with appellant’s assertion as to the facts.
The alleged offense occurred April 22, 1969. Complaint was filed and warrant was issued April 25, 1969, by the city court of Leavenworth. Appellant was returned to the penitentiary June 4, 1969, and has continuously been confined there. The warden had knowledge of the escape charge pending against appellant, having initiated it, but did not within a period of one year from June 4, 1969, inform appellant in writing of it and of appellant’s right to make request for final disposition thereof.
Preliminary examination was held June 19, 1970, and appellant was bound over to the district court for trial. June 29, 1970, appellant filed in the trial court his motion to dismiss because of failure to afford speedy trial in violation of K. S. A. 62-2901. This motion was denied and appellant was eventually tried and convicted September 15, 1970.
K. S. A. 62-2901 (b) mandates that the warden, superintendent or other official having custody of prisoners shall promptly inform each prisoner in writing of the source and nature of any untried indictment, information or complaint against him of which the warden, superintendent or other official has knowledge or notice, and of his right to make a request for final disposition thereof.
Subsection (c) of the act provides that failure to give such information to a prisoner within one year after detainer has been filed at the institution shall entitle the prisoner to a final dismissal of the charge with prejudice. As indicated, the prosecution has now agreed the provisions of (b) and (c) were not complied with by penal officials.
Concededly, the same issue was before us under similar facts in State v. Ellis, 208 Kan. 59, 490 P. 2d 364, to which reference is made. That which was said there is controlling and need not be elaborated.
Because of the state’s failure to comply with the mandatory provisions of K. S. A. 62-2901 (b) and (c) the trial court erred in denying appellant’s motion to dismiss. The judgment is reversed and the case remanded to the district court with directions to set aside the conviction and sentence.
APPROVED BY THE COURT. | [
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|
The opinion of the court was delivered by
Owsley, J.:
This action involves the question of whether a grocery store may be constructed on plaintiff’s land under a comprehensive zoning ordinance adopted by the City of Augusta, Kansas.
The action is in the nature of a declaratory judgment brought by the plaintiff-landowner. The defendant, Vieux, is a practicing attorney who owns an interest in real estate, presently occupied by a retail grocery store located within 200 feet of the property owned by plaintiff. Subsequently, other persons were named parties defendant and were permitted to adopt all the defendant’s views, pleadings, motions, interrogatories, and objections as their own. The City of Augusta was also named an additional party defendant and the motion to make the Dillon Investment Company a party was denied. In referring to the defendants we are not including the City of Augusta.
On the 1st day of March, 1967, agreement was entered into between plaintiff and Dillon giving Dillon an option to purchase the real estate owned by the plaintiff. It was agreed that $1,000 should be placed in escrow to be paid to the plaintiff upon satisfactory proof to Dillon that the plaintiff had obtained at his expense a zoning use known as retail commercial (primarily super market) on the property involved. Since that time the plaintiff has made persistent efforts to obtain proper zoning of the subject property for a grocery store. After several fruitless attempts, on January 14, 1968, plaintiff filed a suit against the City of Augusta to force rezoning of his property from residential to some form, of commercial use. This case remains pending and undetermined.
On February 3, 1969, the city passed Ordinance 1132 which was a comprehensive zoning ordinance, but the plaintiff’s property remained residential thereunder. On December 16, 1969, plaintiff succeeded in getting the city to pass Ordinance 1153 which rezoned his land to C-l commercial. On December 17, 1969, the plaintiff obtained a building permit from the city in favor of the Dillon Investment Company to build a grocery store. Preparation of the land by excavation had been commenced on December 17, 1969, when Dillon received a letter from Vieux, written on his own behalf and on behalf of resident home owners, stating that C-l commercial zoning of the plaintiff’s land did not include use as a super market and any further efforts on Dillon’s part to construct a super market would result in action for an injunction against Dillon. On December 29,1969, the plaintiff filed this action for a declaratory judgment against Vieux seeking a disclosure of the names of his clients, their joinder as parties to the suit, an interpretation of C-l commercial zoning, and determination of the legality of the use of plaintiff’s property as a grocery store.
Following trial on December 8, 1970, the court found in favor of plaintiff on all issues.
On appeal the defendants contend the trial court erred in finding a justiciable controversy existed. K. S. A. 60-1701 (Declaratory Judgment) reads as follows:
“In cases of actual controversy, courts of record within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed, and no action or proceedings shall be open to objection on the ground that a judgment or order merely declaratory of right is the only relief requested. Controversies involving the validity or interpretation of deeds, wills, or other instruments of writing, express trusts, statutes, municipal ordinances, and other government regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right.”
This statute was designed to fulfill a need in our system of jurisprudence such as exists in this case. The controversy between the parties to this action arose when the plaintiff attempted to use his property in accordance with the ordinances of the city. The letter written by the defendant, Vieux, challenged the right of the plaintiff to use the property in the manner contemplated. There can be no doubt that an “actual controversy” existed between the parties. The merit of this statute is that it provides a means of determining rights and liabilities before parties are required to expend substantial sums of money in proceeding to act under questionable circumstances. The plaintiff maintains under his interpretation of the ordinance that a grocery store as presented by Dillon may be built on the property. The defendants maintain the ordinance prohibits the store proposed by Dillon which they classify a super market. This declaratory judgment statute provides a means of settling the controversy without requiring actual construction.
The statute specifically refers to controversies involving municipal ordinances and in State Association of Chiropractors v. Anderson, 186 Kan. 130, 348 P. 2d 1042, we said:
“. . . It has long been settled courts also have jurisdiction, under the Declaratory Judgment Act, to determine the validity of statutes or ordinances before a party undertakes to act in apparent violation thereof. That is the purpose and intent of the remedial relief contemplated by the act. . . .” (p. 135.)
Defendant argues that the failure of the court to join Dillon as a party somehow prevents the existence of a justiciable controversy. We are unable to follow defendant’s argument. While we agree Dillon might be a proper party, we cannot agree that Dillon is a necessary or indispensable party. We defined these terms in Cities Service Oil Co. v. Kronewitter, 199 Kan. 228, 428 P. 2d 804, as follows:
“Proper parties are those without whom the cause might proceed but whose presence will allow a judgment more clearly to settle the controversy among all the parties. Necessary parties are those who must be included in an action either as plaintiffs or defendants unless there is a valid excuse for their nonjoinder. Indispensable parties are those who must be included in an action before it may properly go forward.” (Syl. ¶ 1.)
As we view this situation, Dillon, although undoubtedly interested in this litigation, has no actual right or claim in this property until after this lawsuit is determined. As we read the option to purchase there is no consideration for granting the option until the zoning matter is clear. There is no merit to the argument that Dillon is such a necessary or indispensable party that this action cannot proceed to determine the actual controversies that otherwise exist.
Defendants also argue that since there was no valid contract between plaintiff and Dillon the trial court did not have jurisdiction to determine a matter which was speculative. The trial court held the contemplated use of the property was not speculative. The record supports this finding and it will not be disturbed on appeal.
Defendants further argue that when another action is pending to determine the same issues a subsequent action should be dismissed. This contention as applied here is without merit. The prior action involved an ordinance since discarded. Furthermore, the prior action involved plaintiff and the city. The defendants in this action were not parties to the prior action.
Defendants next contend that this action cannot be maintained because it requires determination of fact issues of major proportion and cites Hays v. Rymph, 191 Kan. 361, 381 P. 2d 326. As we view it, a decision on the issues which control this action is not based on any disputed questions of fact. In Hays we stated:
“While a declaratory judgment action may be maintained, although it involves the determination of a disputed question of fact, it may not be used where a question of fact is the main issue or where the object of the action is to try such fact as a determinative issue.” (Syl. ff 2.)
Defendants argue that Ordinance 1153 rezoning plaintiff’s land from R-2 to C-l classification (as defined by Ordinance 1132) is invalid because it is “spot zoning.” We considered similar situations in Arkenberg v. City of Topeka, 197 Kan. 731, 421 P. 2d 213, and Coughlin v. City of Topeka, 206 Kan. 552, 480 P. 2d 91. The general purport of these cases is that “spot zoning” may be unreasonable and invalid when it singles out a small parcel of land for use classified differently from the surrounding area, primarily for the benefit of the owner of the property and to the detriment of the area and other owners therein. On the other hand, “spot zoning” is not unreasonable and invalid if it is related to the general welfare and the best interests of the community-at-large. The proper approach to judicial review of zoning action by city governments is set forth in Arkenberg as follows:
“. . . The power of the court is limited to determining (1) the lawfulness of the action taken, that is, whether procedures in conformity with law were employed, and (2) the reasonableness of such action. As to the second, the court may not substitute its judgment for that of the governing body and should not declare the action of the latter unreasonable unless clearly compelled to do so by the evidence. There is a presumption that the governing body acted reasonably and it is incumbent upon those attacking its action to show the unreasonableness thereof. . . .” (p.735.)
It follows that the defendants in this case must establish by a preponderance of the evidence that the city council’s action in rezoning plaintiff’s land from R-2 to C-l classification was unreasonable. The record discloses that a public hearing was held before the planning commission of the city, in which the proposed plan for the use of plaintiff’s property was disclosed and the significance of that use in relation to the public welfare of the city was fully developed. On appeal to the district court the issue of public welfare was again fully explored, which resulted in the finding of the trial court that the rezoning ordinance was valid. The trial court further stated that in making this determination it took into consideration the following matters:
“a. The city commission determined the re-zoning would promote the public welfare.
“b. The designation of the property as C-l conformed with the practice of the planning commission and the city in its designation of certain other areas as C-l.
“c. There existed a non-conforming similar use, Hank’s Superette, diagonally across the street from plaintiff’s property.
“d. Part of plaintiff’s property had formerly been used for commercial purposes.
“e. The present structures on the premises are run down and are a detriment to the community.
“f. When they re-zoned the property, the planning commission and city commission took into consideration traffic patterns and the effect on other nearby property.
“g. The size of the property involved fits it well to the intended use.”
The matters considered by the trial court were covered at the public hearing before the planning commission as well as at the hearing in the trial court. The defendants have failed to meet their burden to show the ordinance is unreasonable. We agree with the trial court in its findings and conclusions on this issue.
Aticle XI of Ordinance 1132, entitled “ ‘C-l’ Neighborhood Shopping District”, reads as follows:
“Section 1. Intent and Purpose of District: It is the intent of the ‘C-l’ Neighborhood Shopping District to permit retail sale of convenience goods and services similar in nature to uses allowed in District ‘C-P’. This district is established for the purpose of making present uses and existing neighborhood shopping areas conform.
“Section 2. District Regulations: In District ‘C-l’, no building shall be used and no building or structure shall be erected, altered or enlarged, which is arranged, intended or designed for other than one of the uses listed in Section 3 below.”
Section 3 o£ Article XI, entitled “Use Regulations”, covers 31 permissible uses, No. 14 being “Food stores (grocery, meat and delicatessen).”
Defendant complains that the court did not admit proffered evidence of trade definitions of terms used in the C-l classification and incorrectly interpreted the ordinance. The rules for judicial interpretation of statutes are equally applicable to municipal ordinances. (Desser v. City of Wichita, 96 Kan. 820, 153 Pac. 1194.) This court has many times stated the primary rule for the construction of a statute is to determine the legislative intent from the language used therein. If the language used is plain and unambiguous the court should follow the intent expressed by the words within the statute and not look beyond them in search of some other purpose or meaning. (Alter v. Johnson, 127 Kan. 443, 273 Pac. 474, Syl. ¶ 1; Hand v. Board of Education, 198 Kan. 460, 426 P. 2d 124, Syl. ¶ 1.) The language of Ordinance 1132 setting forth the intent and uses of land zoned C-l being plain and unambiguous, the court was justified in confining its interpretation to the words of the ordinance.
It is the duty of courts to reconcile various provisions of an act in order to make them consistent, harmonious, and sensible if that can be done without doing violence to plain provisions therein contained. (State v. Sumner, 169 Kan. 516, 219 P. 2d 438, Syl. ¶¶ 1, 2, and 3; Gnadt v. Durr, 208 Kan. 783, 494 P. 2d 1219.)
Defendant contends the term “neighborhood” is used as a limitation upon the area to be served. If this is so it is difficult to reconcile that meaning of “neighborhood” to the specific provisions allowing use for banks and lending institutions; electric and telephone sub-stations; medical, dental and health clinics; motels; non-profit religious, educational and philanthropic institutions; etc. These obviously denote a dependence upon city-wide patronage rather than a limited residential patronage.
To interpret the general terms “convenience goods and services” and “neighborhood” according to the usage of one trade or business, e. g., the grocery business, as defendant urges, would be to disregard their plain meaning as applied to other enumerated uses. Hence, the court’s refusal to admit evidence as to the definitions of words as applied to one trade or business was justified.
The trial court held the plaintiff’s property may be rightfully used for any use permitted under C-l classification, including construction and operation of a grocery store. We agree with the trial court. The issue before the trial court was whether the operation proposed by Dillon was permissible under the ordinance. It is inherent in the judgment that use of the word “grocery” includes the use by Dillon as presented in evidence.
So considered, the judgment is affirmed.
Fontron, J., not participating. | [
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|
The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in quo warranto which questions the authority of the city of Kansas City, Kan., to enact a certain ordinance extending the corporate limits of the city. After issues were joined this court appointed H. W. Arant, Esq., of Lawrence, commissioner to hear the evidence, make findings of fact and conclusions of law, and to report to this court. This has been done and the case has been briefed and argued and submitted for decision. Although the commissioner’s findings and conclusions are advisory to this court rather than binding (State, ex rel., v. Barker, 119 Kan. 853, 858, 241 Pac. 253), we print the findings and conclusions in order better to understand the facts and the reasons which prompted the commissioner’s conclusions. They are as follows:
“Findings op Fact.
“The territory referred to in Ordinance No. 23107, marked Exhibit ‘A’ and attached to defendant's amended answer, includes approximately 640 acres, through which from northwest to southeast flows the Kaw river, a navigable stream. Approximately one-third of said territory is on the north side of said river and two-thirds on the south side thereof, and approximately one-sixth of said territory lies within the harbor lines of said river. The annexation of the said territory owned by several different persons or corporations, was against the wishes and over the protest of a large majority of the owners of the lands included therein. The territory referred to is, in the main, unplatted, but it includes two small pieces of platted land, namely McAlpin and Riverside additions. The boundary of the territory annexed coincides on three sides and a small part of the fourth with the city limits of the City of Kansas City, Kan., as they were prior to the passage of said ordinance. The evidence shows the length of the boundary of the territory taken in to be 23,-000 feet. The length of so much of the boundary of the territory taken in as coincides with the boundary of the city prior to the annexation, is 17,400 feet. Stated otherwise the length of the part of the boundary of the territory annexed that coincides with the old city limits, is approximately three times the length of that part of the boundary of the territory annexed that does not coincide. Scattered over the territory annexed are 45 residences or small business buildings. With the exception of the land owned by the Sinclair Refining Company, 152 acres and approximately one-fourth of the entire territory, and that owned by the United Zinc and Chemical Company, 102 acres and approximately one-sixth of the same, the said land is either vacant or principally devoted to truck farming. Because, however, of the proximity of the said land to Kansas City, Kan., and Kansas City, Mo., it is well adapted to industrial purposes and has a value for the purpose of industrial sites far above its value for farming purposes, to wit, $1,500 to $2,000 an acre.
“The body of land in question is bounded on the north by Muncie road, on the south by the Argentine railway and switch tracks of the Atchison, Topeka & Santa Fe Railway Company, on the west by Carlisle road and vacant lands and on the east by approximately a half milé of vacant land annexed to the city of Kansas City, Kan., about sixteen years ago, upon which, in the meantime, there has been little improvement or construction of buildings or laying out of streets. The land annexed is traversed by no streets or alleys, except a county road extending Kansas avenue west, nor are any streets or alleys on it except those shown on the platted additions before referred that compose a small part of said land. Most of the houses on said land are along its northerly side, its easterly side north of the Kaw river and along the Daniel Wilson county road toward the west side of said land, a part of said land belonging to and being occupied by employees of the United Zinc and Chemical Company. Upon said land there are no churches or school buildings, but there are two or three small country stores and a small restaurant.
“It appears that the United Zinc and Chemical Company and the Sinclair Refining Company located their plants with a view to operating outside of the city limits. Being within the city limits appears, however, to impose no burdens or handicaps to these companies except the possible burden of increased taxation. It further appears that these companies constructed their plants with a view to each being a self-sufficient unit as regards sewage, water, light, fire and police protection. Each now uses in its business some city water, though the amount of such water used is small in comparison with the total amoúnt used, each using the majority of its water from its own wells. Each-is equipped with fire-fighting apparatus peculiar to its needs. Light- is purchased by each from the city of Kansas City, Kan. Each insists that it does not require police protection from the City of Kansas City, Kan., though it appears that each plant has at times been visited by the police and fire departments of Kansas City, Kan., for purposes of protection but whether upon the companies’ calls or not is not clear. The plant of each is surrounded by a fence which excludes the public from the premises. This is highly desirable, if not necessary, both from the point of view» of the public and particularly from the point of view of the Sinclair Refining Company, since the refining of crude petroleum is attended with some degree of danger, and the presence of the public on the premises would be a peril to the property of the Sinclair Refining Company as well as to persons exercising unsupervised access to its premises. Additional peril to the public inheres in the large number of switch tracks and the large amount of switching of cars that is necessary to the carrying on of the business of oil refining. It does not' appear, however, that the annexation of the territory covered by Ordinance No. 23,107 will create any probability that the property of either of these two corporations will be encroached upon or the conduct of their business be interfered with in any degree save in the payment of additional taxes that may be levied by the city of Kansas City, Kan. In view of the fact that the plants of the United Zinc and Chemical Company and the Sinclair Refining Company were planned and constructed with a view to each being self-sufficient and independent, it does not appear that either is now deriving any benefit, with its consent, from the city of Kansas City, Kan., except in the matter of water and electrical energy used, as above stated. It appears that the character of the territory immediately adjacent to the plants of the United Zinc and Chemical Company and the Sinclair Refining Company has not substantially changed since the location and erection of said plants.
“In addition to a plan to straighten the western city limits of the city of Kansas City, Kan., it appears that the commissioners of said city had in contemplation the erection of a main sewer through the territory annexed to serve the western part of the Argentine district. It further appears. that, because of calls made from this district to the police and fire departments of said city, it was considered as already something of a burden to the city. The city commissioners did, however, have in contemplation the additional taxes from this district that would be collectible by the city of Kansas City, Kan.
“Conclusions op Law.
“The city of Kansas City, Kan., in passing ordinance No. 23,017, acted on authority alleged to have been conferred by section 13-1602 of the Revised Statutes of Kansas, 1923. Whether this ordinance was within the authority conferred by that section is the question presented by this case.
“Section 13-1602 reads as follows: ‘Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or whenever any unplatted piece of land lies within (or mainly within) any city, or any tract not exceeding twenty acres is so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary line ojf such city, said lands, platted or unplatted, may be added to, taken into and made a part of such city by ordinance duly passed. Said ordinance shall describe the platted lands by giving the name of the addition or subdivision as platted, and by giving the metes and bounds of the unplatted lands, with the section, township, range and county in which the same are located: Provided, That in adding territory to any city if it shall become necessary for the purpose of making the boundary^ line straight or harmonious, a portion of a piece of land may be taken into such city, so long as such portion of the piece taken in does not exceed twenty acres.’
“Counsel for the plaintiffs contend that the ordinance was not authorized by the foregoing section for the following reasons:
“(1) That the territory covered by said ordinance does not lie ‘within (or mainly within) any city’;
“(2) That it is not an ‘unplatted piece of land’ within the meaning of said section, but consists of several distinct pieces oj land;
“(3) That the territory covered by said ordinance, consisting of approximately 640 acres, includes both platted and unplatted land and the annexation, in a single ordinance, of both platted and unplatted land is unauthorized ;
"(4) That said ordinance, annexing so large a territory of the character this is shown to be, is invalid because arbitrary and unreasonable.
“Before examining these objections separately, it may be noted, with reference to the statute in question, that the legislature has determined that there are at least four combinations of circumstances under which it is wise that the power of annexation by ordinance should be enjoyed by a city of the first class.
“(1) ‘Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots.’ An owner by subdividing his land into blocks and lots shows that he contemplates and desires that it shall become city property, and if such property adjoins or touches the limits of a city, it enjoys the benefits of a city and there is good reason why such land should be made a legal part of a city. Such must have been the view that led to the enactment of this part of section 13-1602.
“(2) ‘Whenever any unplatted piece of land lies within (or mainly within) any city.’ In such a case, it is generally the fact, that such land is actually and practically a part of the city. Its proximity to a city and its being sur rounded or almost surrounded by a city gives it the value of city land and it thus partakes of the benefits of the city. Moreover, such land is generally served by city conveniences, such as light, gas, schools, etc., and, while there would be no duty upon the police or fire departments of the city to serve such land, both of these classes, of protection would generally be enjoyed by land ‘within (or mainly within)/ surrounded or mainly surrounded by a city. These facts commend as reasonable the provision authorizing the annexation of such land by a city with the consequent result that it may be called upon to bear some part of the city’s burdens in return for the benefits enjoyed.
“(3) Whenever 'any tract not exceeding twenty acres is so situated that two-thirds of any line or boundaiy thereof lies upon or touches the boundary line of such city.’ It seems hardly conceivable that, when two-thirds of the boundary of a twenty-acre tract of land lie upon or coincide with the limits of a city, such tract of land would not enjoy practically all the benefits of the city referred to in the preceding paragraph. The legislature might probably have gone further in the extent of its authorization of the amount of such land that could be annexed without authorizing the annexation of land that would not be enjoying, in fact, the benefits of the city. There may be cases where a twenty-acre tract of land, or a smaller tract, having two-thirds of its boundary coinciding with the limits of a city would not lie ‘within (or mainly within)’ a city, as this language has been construed in cases hereafter to be referred to, but such cases are not easy to imagine. Unless there are such cases, this subdivision of the statutes would be surplusage, the cases to which it is applicable being within the preceding subdivision.
“(4) ‘If it shall become necessary for the purpose of making the boundary line straight or harmonious, a portion of a piece of land may be- taken into such city, so long as such portion of the piece taken in does not exceed twenty acres.’ The justification for this provision is plain. Besides the probability that land so situated would be enjoying substantially city benefits, the city in providing for the disposal of sewage, in furnishing fire and police protection, etc., should not be handicapped by the existence of a gap between two portions of territory which it is under an obligation to serve and from one to the other of which it should in performing its various services, be able to move expeditiously, without interference and with the least economic burden possible.
“These are believed to be the reasons which prompted the legislature of this state to enact the law as it now appears and it is believed that they throw light on the problem presented by the case in hand as to the interpretation which this section should have.
“It is manifest, and counsel agree, that, if the city of Kansas City, Kan.*, was authorized to annex the territory in question at all it was by virtue of section 13-1602 and particularly subdivision two of that section, as above subdivided. The other subdivisions of the section manifestly have no application.
“The applicable part of the section then reads as follows: . . . Whenever any unplatted piece of land lies within (or mainly within) any 6ity, . . . said lands, . . . may be added to, taken into and made a part of such city by ordinance duly passed.
“The first question to be answered is whether the territory included by Ordinance No. 23,017 lies ‘within (or mainly within)’ Kansas City, Kan. It is somewhat irregular in shape and its boundaries are not straight, but they coincide with the boundaries of the City of Kansas City, Kan., on the north, east, south and, to a small degree on the west. Approximately three-fourths of its boundary coincides with that of the city. That territory so situated lies ‘within (or manly within)’ the city seems to have been clearly the opinion of this court, as will appear by reference to the cases of State, ex rel., v. City of Atchison, (1924) 92 Kan. 431, and State, ex rel., v. City of Hutchinson, (1921) 109 Kan. 484. Counsel for plaintiffs, however, contend that what was said by this court in these cases on this point was mere dictum! With this contention we cannot agree but, if dictum, it appears to be correct.
“In the Atchison case, the validity of the annexation by the city of Atchison of a sixty-five-acre tract of unplatted land by Ordinance No. 3,096 was challenged. Prior to the passage of that ordinance, Ordinance No. 3,074 had been passed, defining the limits of the city of Atchison. Objection was made to the introduction of Ordinance No. 3,074 as evidence of the boundaries of the city of Atchison as they existed just prior to the passage of Ordinance No. 3,096, on the ground that it did not appear that the law had been complied with in its passage. It was held that, in the absence of evidence to the contrary, Ordinance No. 3,074 would be presumed to be valid, and the legal limits of the city to be as declared therein. But, if the limits of the city were as declared in Ordinance No. 3,074, still the annexation of the sixty-five-acre tract would not be valid -under the authority of the statute unless it lay ‘within (or mainly within)’ the city. The entire boundary of the sixty-five-acre tract measured 7,290 feet and 4,645 feet of its boundary coincided with the limits of the city as declared in Ordinance No. 3,074. The judgment of the lower court holding the annexation valid under the statute was affirmed. This seems to be a clear decision that the land in question l&y ‘within (or mainly within)’ the city of Atchison.
“In the Hutchinson case, the proceeding was against the city of Hutchinson to show by what authority it exercised jurisdiction over the S. E. % and the S. W. 14 of section 17, etc. It will be observed that the proceedings challenged the authority of the city ov-er each of two different sections of land. The city had exercised authority over the S. E. 14 for thirty years and it was held that, under these circumstances, it would be presumed, until the contrary was made to appear, that the S. E. % had been validly annexed under Ordinance No. 241, passed in 1890, and was a part of the city. But this did not settle the question as to the city’s authority over the S. W. 14, which had been annexed *to the city under Ordinance No. 1,378, passed in July, 1919. Prior to the passage of the last-mentioned ordinance, the land to the north and to the south of the S. W. 14 had been annexed to the city and, the S. E. 14 being held to be a part of the city, the boundary of the S. W. 14 on three of its sides coincided with the boundary of the city and was held to have been properly annexed. The annexation could not have been upheld under the statute without deciding that the S. W. 14 lay ‘within (or mainly within)’ the city of Hutchinson.
“In the light of these two cases, it appears that the territory annexed by the city of Kansas City, Kan., under Ordinance No. 23,017, lies ‘within (or mainly within)’ the city, since it is bounded by the city on three sides, as in the Hutchinson case and the percentage of the coincidence of its boundary with that of the city is greater than what was held to be sufficient in the Atchison case.
“The question whether the territory annexed under Ordinance No. 23,017, is an ‘unplatted piece of land’ within the meaning of section 13-1602 does not appear to this commissioner to be answered by any decision of this court, nor has his attention been called to any other case which seems to settle it. Omitting, for the moment, the problem raised by the plaintiff as to the effect of the inclusion in the territory annexed of two parcels of platted land, let us confine our attention to the question whether said territory is a ‘piece of land’ within the meaning of said statute.
“Counsel for plaintiffs argue that the territory here annexed constitutes several ‘pieces’ of land within the meaning of said statute. It is said that the fact that the Kaw river, a navigable stream, flows through said territory cuts it into two pieces of land at least; that a county road running across it to the west divides it into pieces. It is argued that the lands occupied by the plants of the Sinclair Refining Company and the United Zinc and Chemical Company, each completely inclosed, devoted to widely different uses and so planned and constructed as to be relatively self-sufficient and independent, are separate and distinct pieces of land within the meaning of this statute. Diversity of ownership is also said, under the decisions in this state, to make land separately and diversely owned separate pieces.
“The contention of plaintiff’s counsel that the question as to the meaning of ‘piece’ of land, as it is used in section 13-1602, has been settled by the decisions of the supreme court of Kansas seems clearly open to question. That the problem involved is to ascertain the legislature’s intent perhaps all will agree. In its solution, it is pertinent to note that none of the powers of annexation conferred by section 13-1602 is dependent upon the consent o.f the owner of the land. This constitutes one striking difference between this statute and the California statute under which the case of People, ex rel., v. City of Le Moore (1918), 174 Pac. 93, relied on by plaintiffs, arose. In that case, though only 99 persons lived on the 308% acres annexed, it was clear that this made it inhabited territory. Under the provisions of section 6 of the act of 1913, where different bodies of territory were to be taken in they were required to be submitted to the electors separately. The 308% acres in question in this case completely surrounded the city of Le Moore, but parcel No. 1, containing 48 acres, as shown by the map in the report of the case, was separated entirely from all the rest of the 308% acres. The nearest part of the territory taken in to the west of it was 1,650 feet distant, and the nearest part of the territory taken in to the north of it was about equally distant. It is clear that this parcel was a separate bodjr of outside territory and the annexation was invalid under the California law, which required first either a petition of the electors of the existing city or a petition of electors in the territory proposed to be annexed followed by an election. Observe that under this statute the important element in determining whether land outside should be an- • nexed is consent. There is no limitation on the amount or character of land that may be taken in with consent, but the law wisely provides that a proposal to annex should relate to land that has uniformity of character so that an elector could be expected to have a single attitude toward the land. If a thickly-populated, small parcel on the north should be submitted for annexation with a sparsely-populated large parcel on the south, the elector might be confronted with the dilemma of voting either to take in territory that, in his judgment, should not be taken in or of voting against the taking of territory he believes should be in the city. The California statute is so different from the Kansas statute that the case referred to furnishes little or no aid in the solution of the problem here referred to. That this is so will be apparent from the following language in the court’s opinion at page 96:
“ ‘We consider it manifestly unjust and inequitable, under the circumstances described by the complaint, for the electors residing in the two inhabited parcels Nos. 4 and 9 to determine the annexation of the other parcels against the will of their owners.’ It would be difficult to imagine two statutes resting upon a more fundamentally different basis. The case of Linn County Bank v. Hopkins (1892), 47 Kan. 582, relied upon by plaintiffs as settling the question as to the meaning of ‘piece of land,’ to this statute, seems hardly in points That two forty-acre tracts of land, touching only at a corner, are not a single body of land as required by a homestead law, which is never applicable, in a single proceeding, to more than one person, we may all agree, to say nothing of the desirability of strictly construing a law that withdraws a debtor’s property from the payment of his just debts. The annexation of property to a city seldom involves the land of only a single person and strong reasons for strict constructions are not apparent.
“As stated above, the fundamental basis of the subdivision of section 13-1602, applicable to the case in hand, is the fact that land that lies ‘within (or mainly within)’ the city partakes of much of the benefits of the city and is factually, though not legally, a part of the city. It is the conclusion of this commissioner that ‘piece of land,’ as used in this statute, is not determined by inquiry as to whether a navigable river flows through it or whether certain parts of it are inclosed with high fences or whether it is owned by one or many persons, or whether a county road traverses it, or whether it is thickly populated in parts and vacant in parts, but it seems rather that ‘piece’ is to be construed with reference to the relation to the city of the land in question. A parcel of land to the north of the city might be almost surrounded by the legal city limits and the same to (be) true of a parcel to the south. We would then have not a piece of land lying ‘within (or mainly within)’ the city but two pieces of land. They each might be equally eligible for annexation but they should not, under section 13-1602, be taken in in a single ordinance. The land taken in under Ordinance No. 23,017 lies ‘mainly within’ the city of Kansas City, Kan., and, with reference to its character as being mainly within the city, it is believed that it is a ‘piece of land’ lying ‘mainly within’ the city in the sense of being mainly surrounded by the city, which seems to be the meaning that must be given the last-quoted language of this statute, unless it is to be rejected as nonsensical or ‘contradictory on its face’ as contended by counsel for plaintiff. The latter course this commissioner would be reluctant to pursue with reference to language to which tliis court has ascribed a meaning in at least two cases. The result required by the contentions of the plaintiffs that separate ordinances be passed to take in the various pieces of land into which their argument would divide this territory that clearly lies ‘mainly within’ the city would impose an undue burden to the annexation of this territory without any compensating benefits or protection to anyone. An interpretation of the legislature’s language requiring such a result should be supported by a stronger demand in the language used than is found in language of this statute.
“It yet remains to notice plaintiff’s argument that section 13-1602 does not authorize the annexation in a single ordinance of territory that includes both platted and unplatted land, even though all of such territory lies ‘within (or mainly within)’ the city. As heretofore noted and as was suggested by counsel for plaintiffs, a justification for the annexation of platted land exists that may never exist in the case of unplatted land, namely that the owner of such land, by subdividing it into blocks and lots, shows his intent and consent that it shall become city property. If such property lies ‘within (or mainly within)’ the city all the additional reasons exist for permitting its annexation that led the legislature to provide for the annexation of ‘any unplatted piece of land’ that ‘lies within (or mainly within)’ a city, and it would seem that it might frequently happen that a piece, or a part of a piece, of platted land might also come within subdivision three or four of section 13-1602. But it is argued that subdivisions one and two are mutually exclusive and that land that comes within the description of subdivision one cannot come within subdivision two. Counsel for plaintiff would admit that the land that lies north of the Kaw river that is taken in under Ordinance No. 23,017 is not a ‘platted piece of land,’ within the meaning of subdivision one of section 13-1602, though they argue that the Kaw river makes it a separate piece of land from that included in the ordinance which lies on the south side of the Kaw. It could not correctly be said that the piece of land was platted unless all of it was platted. By the same token, if the position heretofore arrived at that all of the territory covered by Ordinance No. 23,017 is a ‘piece of land that lies within (or mainly within) ’ the city is correct, it must be true that it is an unplatted piece of land. For the purpose of annexation under subdivisions one and two of section 13-1602 but two classes of land are recognized, namely, platted and unplatted. Any platted land may be taken in if it adjoins or touches the limits of a city; it makes no difference whether it lies within or mainly within the city or not, but all of such land' must be platted or it is not platted land within the meaning of the statute. The next subdivision was manifestly intended to authorize the annexation of any body of land lying ‘within (or mainly within)’ the city on the ground that such body of land is factually a part of the city and its becoming a legal part of the city be made possible. That such a body of land happens to have in it some land that has been platted does not change the fact that the body of land lying mainly within the city is factually a part of the city in that it has enhanced value because of its proximity to the city and, because it lies mainly within the city, it cannot escape enjoying much of the benefit of the city in the respects above pointed out. Since a given piece of land, within the meaning of the first and second subdivisions of section 13-1602, is either platted or unplatted, it must follow that this is an unplatted piece. It certainly could not be taken in under the first subdivision because it is not a ‘platted piece of land.’ If not, then, since within the meaning of the statute the territory constitutes a piece of land, it must be an unplatted piece of land.
“But if this reasoning should be held to be erroneous, it must be borne in mind that section 13-1602 nowhere says that platted and unplatted land cannot be taken in in a single ordinance. Certainly the taking in together of land that has been platted and land that is unplatted, where all of such lands together make a body of land that is mainly surrounded by the city, would result in the imposition of no burden or danger to the owners of lands included that would not be present if the platted land were taken in in one- ordinance and the unplatted land in another. That the legislature should intend to require the separate annexation of land that lies mainly within the city merely because its owners, in addition to enjoying actually the benefits of ownership of city land, have invited its annexation beggars reason and such a construction of the legislature’s language, not seeming to be required, will not be indulged in.
“The plaintiff’s contention that the annexation of the territory covered by Ordinance 23,017 is invalid because arbitrary and unreasonable remains to be considered.'
“Whether it is permissible to inquire whether there may not be circumstances which prevent a city from annexing an ‘unplatted piece of land that lies within (or mainly within)’ a city may be open to doubt. This court, in the case of In re The Incorporation of the Town of Olsburg, Blue Valley Township, Pottawatomie County et al. v. The Board of County Commissioners of the County of Pottawatomie (1923), 113 Kan. 501, held that findings of certain facts which, under the statute, were to be ascertained by the board of county commissioners wei-e subject to review by the courts, e.g., the number of inhabitants in the territory proposed to be incorporated; that the petition for incorporation had been signed by a majority of the electors thereof and that a majority of the taxable inhabitants had voted for incorporation. The determination required by the court to be made by the commissioners that incorporations of the territory asked for in the petition was reasonable was in the same case, held to be the exercise of a legislative function and the findings of the board of commissioners on this matter not subject to review by the courts.
“This case seems conclusive upon the point. The legislature has itself determined that it is reasonable to annex property to a city of the first class in at least four different situations. The courts can do no more than determine whether the facts exist under which the legislature has said annexation may take place. These facts have been found to exist in the present ease.
“Were it permissible to inquire whether the action of the city in annexing the territory in question was reasonable or arbitrary, it would seem to be clear, from the facts that have been found, that the action of the city is valid. An instructive case, where many of the arguments used by plaintiffs in this case were considered, decided by the supreme court of Missouri, will be found in the case of State ex inf. Major, Atty.-Gen. v. Kansas City (1911), 134 S. W. 1007. It was there held that an extension of the city limits of Kansas City, from 26.70 square miles to 57.75 square miles was valid.
“It is the opinion of this commissioner, upon the facts found, that, as a matter of law the action of the city of Kansas City, Kan., was within the authority conferred by sections 13-1602 of the Revised Statutes of Kansas, 1923, and, since the regularity of the passage of the said ordinance was not questioned, the territory covered thereby has been legally annexed to and is legally a part of said city.”
We also set out a map of the territory annexed by the ordinance and showing its relation to the previous city boundaries.
We pass by the questions, so far as they are argued or discussed, as to the advisability or prudence of the extension of the city boundaries so as to include the territory in question for the reason that it is a legislative question, with which the courts have nothing to do. (See Ruland v. City of Augusta, 120 Kan. 42, 242 Pac. 456, and authorities there cited.) The court will consider only the legal questions involved, namely, whether facts exist which, under the statute pertaining thereto, authorize the city to extend its boundaries by an ordinance so as to include the property in question.
The city of Kansas City is a city of the first class, operating under the commission form of government, as provided in chapter 114 of the Laws of 1907 (R. S. 13-1501 et seq.).
The statute (R. S. 13-1601) provides the method of changing the corporate limits of such a city to be by ordinance. Here no question is raised as to the form of the ordinance, or the regularity of its passage.
Of the situations outlined by the statute (R. S. 13-1602), by reason- of which the city may by ordinance extend its limits so as to include additional real property, the one, if any, applicable to the facts in this case, is embodied in the following excerpt from the statute:
“. . . whenever any unplatted piece of land lies within (or mainly within) any city, . . . said lands . . . may be added to, taken into and made a part of such city by ordinance duly passed. . . .”
We are first asked to define “piece of land,” as those words are used in the statute. Plaintiff argues that a “piece of land” is a tract or parcel of land, the title to which is held separate and apart from other land; that ownership alone determines whether or not any given area of land is a “piece of land”; and furthermore that such area of land should be in one body — not separated by a navigable stream, a county road, or by any strip of land the title to which is in another. From this it is argued that, under the findings in this case, the land sought to be added to the city by the ordinance in question is not a “piece of land,” but is in fact many pieces of land, each of which is owned by one who has no ownership in any other. In support of this argument plaintiff cites Randal v. Elder, 12 Kan. 257; Griswold v. Huffaker, 48 Kan. 374, 29 Pac. 693, and allied cases, holding that a homestead must consist of one tract or body of land. But neither our constitution (art. 15, § 9) nor our statutes (R. S. 22-102; 60-3501) relating to the homestead, use the words “piece of land.” Perhaps it is sufficient answer to all of the argument of plaintiff on this point to say that in granting authority to a city to extend its corporate limits the legislature gave its own definition to the words “piece of land” as being one that “lies within (or mainly within) any city,” without regard to ownership. It is true, of course, that the ownership of land has little or no bearing upon the question of whether it should be taken into the city, as it does have upon a question of exemption. Whether the land to be taken into a city is owned by one person, or in separate tracts by many persons, need have no bearing upon the matter. City real property is usually owned in small tracts by many persons, and the fact that land sought to be taken into the city was so owned might be a reason for its being taken rather than a reason for its exclusion. But we do not rest our decision upon this argument; we prefer to place our decision upon what we regard as a proper interpretation of the statute as enacted, viz.; that the legislature, in authorizing the city to extent its boundaries, was not concerned with the ownership of land added to the city, but authorized the city to extend its boundaries so as to include a ‘(piece of land” which “lies within (or mainly with) ” the city. In other words, the location of the “piece of land” with respect to the existing boundaries of the city was the controlling thought embodied in the statute.
The land sought to be taken into the city by the ordinance in question “lies within (or mainly within) ” the city, as that term was construed in State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873, and State, ex rel., v. City of Hutchinson, 109 Kan. 484, 207 Pac. 440.
Plaintiff calls our attention to the fact that within the piece of land sought to be taken into the city by the ordinance in question are two platted tracts, and hence argues that the land is not an “unplatted piece of land” (R. S. 13-1602). This question is not serious. The platted tracts could be taken into the city by ordinance under the first clause of the statute. If this were done, the remainder of the land sought to be taken into the city by the ordinance in question would be, under the conclusion here reached (even with more reason than now), an unplatted piece of land, and could be annexed by an ordinance. Hence, the only result obtained by following plaintiff’s argument would be to require the city to pass two (possibly three) ordinances instead of one. There is no merit to that under the situation here presented; in fact, the statute (R. S. 13-1602) seems to recognize a situation in which both platted and unplatted land may be added to the city in one ordinance.
Lastly, plaintiff argues that the manner in which the city is attempting to exercise the power granted to it by the statute (R. S. 13-1602) is so unreasonable, partial, unfair and oppressive as to result in the ordinance in question being void and unenforceable, invoking the legal principle applied in City of Emporia v. Railway Co., 94 Kan. 718, 147 Pac. 1095, and allied cases. Perhaps a situation could arise for applying this principle to an ordinance extending the limits of a city (State ex inf. v. Kansas City, 233 Mo. 162), although the prudence or advisability of extending the corporate limits of a city is a legislative question, not a judicial one. (Ruland v. City of Augusta, supra.) But if so, the facts here would not justify its application.
The findings and the conclusion of the commissioner and, in the main, the reasons given by the commissioner for his conclusion, are approved. Judgment will be entered for defendant. It is so ordered.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Burch, J.:
The state appeals from an order of the district court quashing an information for cheating and defrauding by means of false representations. The question is whether obtaining an extension of time in which to pay a matured debt is a valuable thing within the meaning of the section of the crimes act relating to false pretenses.
The information charged that, with intent to cheat and defraud, and by means of false and fraudulent representations duly pleaded, defendant obtained a renewal and extension for 120 days of loans previously procured by him from a named bank, on which there were due stated sums of principal and interest, such renewal and extension being a valuable thing and of the value of more than twenty dollars. The statute reads as follows:
“Every person who, with intent to cheat or defraud another, shall, designedly, by means of any false token or writing, or by means or by use of any trick or deception or false or fraudulent representation or statement or pretense, or by any other means, instrument or device, or by means of any check or any other written or printed or engraved instrument or spurious coin or metal, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, right in action, or any other valuable thing or effects whatsoever, upon conviction thereof shall be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained.” (R. S. 21-551.)
The portion of the statute with which we are immediately concerned, that relating to property obtained, was derived from a Missouri statute of 1845, which was copied in the chapter relating to crimes and punishments in the revised statutes of Missouri of 1855:
“Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person, any money, personal property, right in action, or other valuable thing or effects whatsoever, upon conviction thereof, shall be punished in the same manner, and to the same extent, as for feloniously stealing the money, property, or thing so obtained.” (Rev. Stats. Mo. 1855, ch. 50, art. Ill, § 51.)
This section appeared verbatim as section 88 in the Kansas territorial crimes act of 1859 (Acts of 1859, ch. XXVIII), and continued in force until the revision of 1868 became effective. In the General Statutes of 1868, the expression “by color of any false token” was changed to “by means of any false token,” and the expression “or other valuable thing” was changed to “or any other'valuable thing” (G. S. 1868, ch. 31 § 94). Otherwise, the section is a transcript of the territorial act and the Missouri statute referred to. In 1915 the legislature amended the section by elaborating the enumeration of means of deception, and in the revision of 1923 the phraseology of the amendment of 1915 was improved, but these changes did not affect the provision relating to property obtained, and that portion of the statute retains its identity with section 94 of the crimes act of 1868.
The problem for solution is whether the legislature intended to cover a field with marked boundaries so that all cheats and frauds within that field should be subject to punishment, or consciously and purposely extended the statute so that it embraced a new field not theretofore thought of as lying within the domain of punishable false pretenses. In the books for the guidance of courts called on to interpret statutes, it is written that penal statutes are to be strictly consti’ued, and statutes tending to suppress fraud are to be liberally construed. It is conceived that the first business of the courts is to ascertain, if possible, what the legislature intended, and if the meaning of the statute to be applied be reasonably plain, to accept that meaning without attempting either to restrain or to enlarge it.
The origin and history of the crime of obtaining property by false pretenses, under the common law of England and under English statutes preceding and including 24 and 25 Victoria, c. 96, 101 Stat. at L. 360 (1861), are sketched in the excellent article on false pretenses in 25 C. J. 582 to 662. The act of Victoria was superseded by the act of October 31,1916, “to consolidate and simplify the law relating to larceny triable on indictment and kindred offenses.” This act was prepared according to the scientific method usually employed by the British parliament in dealing with highly important subjects of legislation. The false pretense section reads as follows:
“32. Every person who by any false pretense—
“(1) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or
“(2) with intent to defraud or injure any other person, fraudulently causes or induces any other person—
“(a) to execute, make, accept, indorse, or destroy the whole or any part of any valuable security; or
“(b) to write, impress, or affix his name or the name of any other person, or the seal of any body corporate or society, upon any paper or parchment in order that the same may be afterwards made or converted into, or used or dealt with as, a valuable security:
“shall be guilty of a misdemeanor and on conviction thereof liable to penal servitude for any term not exceeding five years.” (Eng. L. R. Stat., 6 and 7, George V, c. 50.)
It will be observed that in this statute every class of property obtainable by false pretense is embraced in “chattel,'money, or valuable security.” While this brevity was in course of attainment, that incorrigible mischief-maker “or other thing,” which, cloaked in varying phraseology, still works confusion in American false-pretense legislation, was put in the straight-jacket of certainty.
The statute of 33 Henry VIII, c. 1 (1541), ordained that if any person should falsely and deceitfully obtain or get into his hands or possession any money, goods, chattels, jewels, “or other things” of any other person or persons, by color or means of any false token or counterfeit letter, he should be punished in a prescribed manner (5 Stat. at L. 65). This statute was supplemented, but not superseded, in 1757, by a false pretense act which provided that—
“All persons who knowingly and designedly, by false pretense or pretenses, shall obtain from any person or persons, money, goods, wares or merchandise, with intent to cheat or defraud any person or persons of the same; . . . shall be deemed offenders against law and the public peace; . . .” (30 George II, c. 24, 22 Stat. at L. 114.)
In 1812, the false pretense act of 1757 was extended to include obtaining money, etc., from bodies politic and corporate, and the list of subjects of acquisition by false pretense was expanded as follows:
“Any money, goods, wares or merchandise, or any bond, bill of exchange, bank note, promissory note, or other security for the payment of money, or any warrant or order for the payment of money or delivery or transfer of goods ■ or other valuable thing. . . .” (52 George III, c. 64, 52 Stat. at L. 333.)
In 1827, parliament passed an act consolidating and amending the laws relating to larceny and offenses connected therewith (7 and 8 George IV, c. 29, 67 Stat. at L. 168). The act contained 77 sections, and dealt with extortion, robbery and stealing from the person, housebreaking and stealing from buildings, shops, warehouses and vessels, stealing by lodgers, embezzlement by clerks, servants and bailees, and many other larcenies and kindred offenses. In this statute, the term “valuable security” was introduced, and the term was defined to include enumerated instruments. The enumeration embraced “any warrant or order for delivery or transfer of goods or other valuable thing.” The false pretense section of the statute read as follows:
“And whereas, a failure of justice frequently arises from the subtle distinction between larceny and fraud; for remedy thereof be it enacted, that if any person shall by any false pretense obtain from any other person any chattel, money, or valuable security, with intent to cheat or defraud any person of the same, every such offender shall be guilty of a misdemeanor, . . . Provided always, That if upon the trial of any person indicted for such misdemeanor it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted of such misdemeanor; . . . and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts.” (§ 53.)
It will be observed that in this statute all the personal property belonging to the classes usually indicated by “goods, wares and merchandise,” became simply “any chattel.” The subtle distinction referred to was this: If a person by false pretense induced another to part with possession only, as the lending of a horse, and then converted the goods, the crime was larceny;’if the owner parted with property as well as possession, the crime was not larceny; but in false pretense as well as larceny, it was essential that the goods should be obtained with intent to deprive the owner wholly of his property.' (Reb. v. Kilham, L. R. 1 C. C. 261.) The statute did not remove the distinction, which still prevails (25 C. J. 657), but permitted conviction of false pretense when the proof disclosed technical larceny.
The statute of 1827 was superseded by the act of 24 and 25 Victoria, already referred to. In that act, instruments subject to larceny and obtainable by false pretense were classified into “documents of title to goods” and “documents of title to land.” Among documents of title to goods were “warrants or orders for delivery or transfer of any goods or valuable thing.” In the enumeration, such documents were placed between warehouse certificates and bought and sold notes and other documents used in the ordinary course of business as proof of the possession or control of goods. The result was, “other valuable thing” meant a chattel belonging to the same general class as things stored, possessed, bought, sold, transferred, and delivered.
In the statute of Victoria, the term “valuable security” was defined to include documents of title to goods and land, and certain enumerated securities. The scheme of the Larceny Act of 1816, so far as material here, is the same as that of the act of Victoria.
The foregoing survey discloses that, throughout a period of nearly four hundred years, extending to the present time, the false pretense statutes of England have related to tangible things which, whether money, chattels, or valuable securities, were themselves the subject of larceny. Obtaining credit on account, and thereby accomplishing nonpayment of a sum of money, by false pretense, was not punishable (Reg. v. Crosby, 1 Cox C. C. 10 [1843]), and in the case of Reg. v. Bagley, 17 Cr. App. R. 162 (August 13,1923), the lord,chief justice, in denying an application for leave to appeal against a sentence imposed on conviction of false pretense, made the following observation:
“It is to be observed that the count in the indictment for obtaining food and lodging by false pretenses is wrongly drawn. Lodging is not a chattel, money or valuable security within s. 32 of the Larceny Act, 1916, 6 and 7 George V, c. 50.”
No case has been discovered in which it was contended, much less decided, that a mere benefit, not subject to larcenous acquisition by one person from another, fell under the ban of the false pretense statutes.
Some early American statutes adopted the wording of the act of 30 George II (1757). Because of the rapid multiplication and growing importance of new forms of personalty, the enumeration of “goods, wares and merchandise” was manifestly too restricted, and subsequent statutes made various additions, which are noted in the Corpus Juris article referred to above (25 C. J. § 35, p. 606). In the case of Robinson v. State, 53 N. J. L. (24 Vroom) 41, Justice Dixon expressed the belief that the crimes act of New Jersey of March 13, 1796, first employed the phrase “or other valuable thing.” Afterward the phrase appeared in the statutes of New York, Pennsylvania, and Missouri.
In the opinion in the case of State v. Thacher, 35 N. J. L. (6 Vroom) 445, the court said:
“The English statute of 30' George II, c. 24, which used the words ‘goods, wares, and merchandise,’ was found defective in not providing against obtaining choses in action by false pretenses. This, defect was remedied by 7 and 8 George IV, c. 29, which used the words ‘any chattels, money, or valuable security.’
“Our legislators, who framed our act in view of the early English statute, were not content with the language there used, but, with the design of amplifying its operation, employed the words, ‘money, wares, merchandise, or other valuable thing.’ Our statute having been passed prior to 7 and 8 George IV, and our lawmakers having adopted more comprehensive terms than that act contains, no argument can be drawn from the fact that the English parliament, by subsequent enactment, declared it indictable to obtain by false pretense the signature of any person to a written instrument. ‘Valuable thing’ is more comprehensive than ‘valuable security.’ Every valuable security is a valuable thing, but many valuable things are not valuable securities. Mere tangible things were not alone meant, for the words prior to ‘valuable thing’ described them.” (p. 452.)
There can be no doubt that the legislature of New Jersey intended to enlarge and did enlarge the scope of its act beyond that of the English model, but it is not clear that the concluding sentence of the quotation from the opinion in State v. Thacher did not outdo the legislature.
Before 1796 Blackstone’s Commentaries became well known in the American states which were formerly British colonies. According to Blackstone (book 4, p. 158), the statutory law relating to defrauding by color of false token, counterfeit letter, or false pretense, consisted of the statutes of 33 Henry VIII and 30 George II. The statute of Henry employed the expression “other things” to piece out enumeration of money, goods, chattels, and jewels. Perhaps the state legislatures used “other valuable thing” for the same purpose, without intent to embark upon the uncharted sea of abstract privileges and benefits. However that may be, there is no room to doubt that the legislatures of Missouri and Kansas did not intend to include in their false pretense statutes a privilege having no attribute of transferable property and entirely dissociated from any tangible subject of larceny.
In the General Statutes of 1868, and in the revision of 1923, obtaining by false pretense is classified with offenses against property. As indicated, the false pretense provision was originally section 51, article 3, chapter 50, of the Revised Statutes of Missouri of 1855. Article 3 was devoted to the subject of offenses against property. Section 16 provided that any person convicted of breaking and entering certain buildings and structures in which there should be “any goods, wares or merchandise or other valuable thing kept or deposited,” should be guilty of burglary in the second degree.
Section 25 defined grand larceny as follows:
“Every person who shall be convicted of feloniously stealing, taking and carrying away, any money, goods, right in action, or other personal property or valuable thing whatsoever, of the value of ten dollars or more, or any slave, horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep or hog, belonging to another, shall be deemed guilty of grand larceny.”
Section 31, relating to petit larceny, read as follows:
“Every person who shall steal, take, and carry away any money or personal property, or effects of another, under the value of ten dollars (not' being the subject of grand larceny, without regard to value), shall be deemed guilty of petit larceny, . . .”
Section 39, relating to embezzlement, provided that any clerk, etc., who should embezzle, convert to his own use, or take, make away with, or secrete “any money, goods, rights in action, or valuable security or effects whatsoever,” which came into his possession or under his control by virtue of his employment, should be punished as for stealing.
Section 41 related to embezzlement by carriers and bailees of “any money, goods, rights in action, property, or valuable securities or other effects” delivered to or coming into possession or under care of such bailees.
Section 43 related to buying or in any way receiving “any goods, money, rights in action, personal property, or other valuable securities or effects whatsoever,” knowing the same to have been embezzled, taken, secreted, or stolen.
Section 49 related to conversion of articles or lost property thus enumerated: “Any money, goods, rights in action, or other personal property or valuable thing whatsoever.”
Section 51 was the false pretense section. Section 52 related to obtaining signatures by means of certain kinds of false tokens, and section 53 provided that if, upon the trial of any person indicted under sections 51 and 52, it should be proved that he obtained “the property or other thing in question” in a manner to amount to larceny, he should not be acquitted, but should be convicted and punished as if the offense were proved as charged.
Section 54 related to receiving “any money, goods, rights in action or property, or effects whatsoever,” by impersonating the owner or person to whom they were intended to be delivered.
From this review it appears the Missouri legislature regarded a “right in action” as something which might be taken, stolen, and carried away by a thief; which might come into possession of a clerk, etc., and then be converted, taken, made away with, or secreted; which might come into possession of a carrier or other bailee; which might be bought or received as stolen property; which might be converted as lost property; and which might be delivered to the wrong person, as the result of impersonation. “Effects” were things which might be the subject of petit larceny, of embezzlement, and of other crimes involving tangible things. A “valuable thing” was something which might be the subject of burglary, grand larceny, embezzlement, and conversion by a finder; and the statute affords no hint that an entirely different class of things was intended by the designation, “valuable thing,” in the false pretense section.
The terms “right in action,” “valuable thing,” and “effects,” are used in the statute of 1868 of this state, and in the revision of 1923, in collocations similar to those contained in the Missouri statute. In R. S. 21-520 (burglary, second degree), “valuable thing” appears as something kept or deposited in a building within the curtilage of a dwelling house, or in a shop, store, booth, tent, warehouse, boat, or vessel. In R. S. 21-533 (grand larceny), “valuable thing” appears as something to be stolen, taken and carried away. There can be little difference between “valuable thing” and “thing of value.” In R. S. 21-531 (bank robbery), “thing of value” appears as something of which a bank may be robbed. The false pretense section, R. S. 21-551, is followed by two related sections, one providing for punishment of a certain kind when the false token is of a certain character (R. S. 21-552), and the other providing for conviction and punishment when larceny is established under a charge of false pretense (R. S. 21-553). In the first, the expression “or other thing” takes the place of “any other valuable thing or effects whatsoever” in the false pretense section; and in the other, the expression “money or other thing in question” takes the place of the entire enumeration in the false pretense section. The grand larceny section (R. S. 21-533) embraces “money, goods, rights in action, or other personal property or valuable thing whatsoever,” of the value of twenty dollars or more. The petit larceny section (R. S. 21-535) embraces only “money or personal property or effects,” under the value of twenty dollars. It will not be assumed that the legislature, intending to discriminate between classes of property subject to larceny, classified for purpose of punishment according to value. One description was meant to be just as comprehensive as the other, and there is no basis whatever for inference that the legislature purposely designed that, in the same statute, valuable things should mean tangible things for the purpose of burglary, larceny, and bank robbery, and should mean objects of thought having no affinity with tangible things for the purpose of obtaining by false pretense.
When it desired to do so, the legislature was capable of distinguishing between tangibles and intangibles as obtainable things. In the statute relating to blackmail, it drew the distinction with perfect accuracy. The things to be extorted or gained by blackmail are “any chattel, money or valuable security, or any pecuniary advantage” (R. S. 21-2412). The result is, the context of the section relating to false pretenses demonstrates that the term “personal property” was used in that section to denote personal movable things generally; the term “rights in action” was used to denote the representatives of money and of personal things included in the term “choses in action,” and which, by elaborate definition, became represented in the English statutes by “valuable security”; then, in order that the entire species of personal chattels which are subjects of acquisition by one person from another, might be embraced, the shotgun expression “or any other valuable thing or effects whatso ever” was added. Mere pecuniary advantage, devoid of any physical attribute of money, chattel, or valuable security in the sense of the English statute, was not included.
The information charged the defendant with obtaining a pecuniary advantage of the value of more than twenty dollars, by means of false representations. The information did not state a public offense, and the judgment of the district court quashing the information is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On May 12, 1924, the Farmers Cooperative Grain, Live Stock and Mercantile Company brought this action against Hugo Hed to recover an alleged shortage in his account arising while he was its manager at Falun. A summons was issued returnable May 22. On that day it was personally served on the defendant. He made no appearance in the case and on February 4, 1926, judgment was rendered against him. In the following month, and during the same term of court, he appeared specially and moved to set aside the service and on March 29 the motion was overruled. He appeals from that ruling and from the judgment.
The statute requires a summons to be served “at any time before the return day” (R. S. 60-2507) and a service made on that day is irregular, but not void. In Dutton v. Hobson, 7 Kan. 196, on which the defendant largely relies, proceedings in error were taken from the judgment and a reversal was ordered because of that defect in the service, which had remained unchallenged until after the rendition of the judgment. There the petition was filed and summons issued March 26, 1870. The summons was returnable April 5, on which day it was served. Judgment was rendered on May 17 of the same year. A distinction may readily be drawn between that case and this. There the judgment was rendered within twenty-two days after the answer day. Here the corresponding period was over a year and a half, an unexplained delay fairly to be regarded as amounting to a waiver. “Where formally defective process is personally served, or where personal service is improperly made, and defendant makes no appearance and enters no objection to it but lets the cause proceed, he will not be permitted to object at a subsequent term, but will be deemed to have waived the defect by his silence.” (32 Cyc. 529.) Moreover, since the Dutton-Hobson case was decided the code has been amended by the addition of the provision that “the appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court.” (R. S. 60-3317.) The service of the summons was not a nullity. It was as effective as any service unless challenged by a direct and timely attack. It advised the defendant that he was expected to answer within twenty days, and there would be no harshness to a requirement that if he wished to take advantage of the irregularity he should raise the point within that time. It would be utterly at variance with the spirit of the new code to permit the defendant as a matter of right, after remaining silent for nearly two years, to then take advantage of a purely technical irregularity which did not in the least prejudice his substantial rights. There is room for a reasonable suspicion that the erroneous service was deliberately permitted to lie as a “sleeper” until after judgment in order to gain as great a delay as possible. There is nothing in the record to suggest that the defendant has a meritorious defense which he wishes to present, or to account for the tardiness of his motion. True, he could not put forward such a defense without waiving the defect in the service, but he could have presented it within any reasonable time with a practical certainty of being heard, if he desired, in case his motion should be overruled. We hold that the trial court not only committed no reversible error in refusing to act favorably upon the defendant’s belated motion, but committed no error at all. -
Simcock v. First Nat. Bank, 14 Kan. 529, which is also relied upon by the defendant, is even more readily distinguishable than the Dutton-Hobson case, for there the motion to quash the service was filed on March 13, 1874, three days before answer day. In Braden v. Williams, 101 Okla. 11, a similar case, the motion to quash was filed on the return day.
Where a summons was defective because of the time allowed for answer being too short — a situation having some analogy to that here presented — and the trial court sustained a motion to quash it, this court said:
“In this case the defendant was advised personally of everything which the statute required the summons to contain. It is true the summons did not name the correct answer day as provided by another section of the code, but the other section would have given him that time to answer, notwithstanding the erroneous date in the summons. The only respect in which the defendant could possibly be prejudiced was in the time in which he might answer. He could have filed a motion asking for more time as readily as he could have filed a special appearance and motion to quash, and the court would have given it to him as a matter of course. The defect did not go to the jurisdiction of the court over the person of the defendant, nor render the summons void. At most it was only irregular and voidable. The trial court should have permitted an amendment to the summons upon plaintiff’s request or should upon its own volition have extended the time for the defendant to answer.” (Young v. Newbold, 114 Kan. 86, 88, 217 Pac. 269.)
The judgment is affirmed.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for failure to deliver property purchased under a contract. It was tried to the court, who sustained a demurrer to plaintiff’s evidence and rendered judgment for defendant. Plaintiff has appealed.
On July 15, 1924, plaintiff, a wholesale grocer of Hutchinson, entered into a written contract with the defendant, which appears to be a sales agency for certain fruit growers in California, for the purchase of 400 cases of canned apricots and 900 cases of canned yellow free peaches. The contract contained a provision:
“In case of short pack ... by reason of which seller is unable to make full delivery of any of the goods specified, delivery shall be prorated.”
Defendant delivered all of the apricots ordered, but delivered only 172 cases of the peaches, leaving the order of peaches 728 cases short. Delivery was to be made before December 31, 1924. Plaintiff alleged that the market price of peaches of this quality had raised, and on December 31 was $1 per case higher, and he sues for $728. At the trial, in his opening statement, plaintiff outlined evidence tending to show fraud in inducing him to sign the contract, and on the trial, which was to the court, offered evidence tending to vary the terms of the contract. All of this was objected to, and finally was not considered by the court. Plaintiff also offered evidence as to whether there was a short pack, and bearing on defendant’s authority under the contract to prorate its deliveries.
In this court plaintiff does not seriously contend that the court . erred in refusing to consider evidence as a basis for the modification of the contract, and there was no error in that regard. Plaintiff’s real contention here is that the burden of proof was on defendant, if it desired to be relieved from liability because of a short pack of peaches, to show that in fact there was a short pack and the extent thereof, and that it had prorated the peaches packed fairly among persons to whom it had made sales. Plaintiff now says that he had made a case when he introduced his contract and had shown the failure of defendant to deliver all the goods contracted for. There would be some merit in this contention if it were not for the fact that in this case plaintiff assumed the burden on that question and introduced a great deal of evidence bearing upon it, which evidence, however, was not sufficient to show that defendant did not have a short pack, or that it did not fairly prorate its peaches packed among persons to whom it had made sales. In the court below there was no request of plaintiff for the court to require defendant to assume the burden upon this question. It was tried as though the burden were upon plaintiff, and without objection. Since plaintiff did not object to that procedure in the court below it is unavailing for him to object to it here.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for personal injury under the federal employers’ liability act. The trial court overruled a demurrer to the second amended petition .and defendant has appealed.
The petition and amended petition had been attacked by motion to make more definite and certain in many particulars and by a motion to strike out numerous sentences and phrases. These motions had been sustained in part and overruled in part. The second amended petition was drawn to conform to the court’s ruling upon these motions.
The petition, after alleging facts which brought the relation of the parties within the federal employers’ liability act, stated that plaintiff Was head brakeman; that defendant had used for many years a certain flat torpedo between one and two inches wide and about one-half inch thick for signal purposes in handling its trains; that it was the duty of the defendant to have its engine cabs equipped with racks for the purpose of carrying signal material in view of its employees in the cab of the engine, but defendant neglected to have such racks, and sometimes placed such materials in the box under the engineer’s seat; that it was plaintiff’s duty, among other things, when called to go on a run, to look about the cabs of locomotives to see if same were equipped with the necessary signals and flagging materials, and if he found that the engine was not properly equipped, to report that fact to the defendant’s supply house; that at the time of the injury, and for perhaps a month prior thereto, it had been using a different make of torpedo, which was round and covered with a coating of lead, and which was much more sensitive and more easily exploded than the flat torpedoes ordinarily used; that plaintiff had never been informed of the use of the new torpedoes and knew nothing about them; that on the day in question he was performing his duty, looking about the cab for signal material; that there were no racks in the cab having the signal material in view; that he went to look into the box under the engineer’s seat for them; that he reached his hand down into the box, When his hand, or something in the box, came in contact With one of the long, round torpedoes and caused it to explode, and a piece of the lead covering the torpedo struck him in the eye, entirely destroying the sight thereof. It is alleged that the long, round torpedo was highly explosive; that the negligence of the defendant, its servants and employees, consisted in not using due care to inform plaintiff of their use and the place where they were kept, etc.
Appellant invokes the rule in Mergen v. Railroad Co., 104 Kan. 811, 180 Pac. 376, that in overruling motions to make a petition more definite and certain, the liberal rule applying to petitions as against a demurrer becomes more strict, and unless the pleading states a cause of action it cannot be upheld.
Appellant complains of the disjunctive “or” in the allegation that defendant should have racks “or” other suitable place in which to keep the signal material in view. This argument is trivial. Appellant contends that the only difference alleged between the two classes of torpedoes was the dissimilarity in appearance, one being flat and the other round. That was not a correct interpretation of the petition; it is also alleged that the round torpedoes are much more sensitive and more easily exploded.
It is argued that the plaintiff failed to perform his alleged duty in not reporting that the flagging materials were not in racks in the engine cab in his unobstructed view. This is hardly a correct interpretation of the petition. While it is alleged it was the duty of defendant to furnish such racks and to keep the material there, it is further alleged that it did not do so, but placed them in these boxes, and it was plaintiff’s duty to see if they were on the cab.
It is argued that when plaintiff saw the flagging material was not in the engine cab in proper racks he then voluntarily, without direc tion or instruction, and against the rules of his master, selected his own method of work, and therefore assumed the risk incident thereto. This argument is based upon a clearly erroneous interpretation of the petition.
We have carefully considered all of the points argued by appellant and find no merit in any of them.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The city commissioners of Kansas City, Kan., entered upon a project for the paving of a street. Abutting owners brought an action to enjoin them from carrying it out on the ground that for various reasons the statutes did not permit it. The case was heard by the four judges of the district court and a permanent injunction was granted. The defendants appeal.
The plan adopted by the defendants involves the issuance of bonds for the paving, the cost to be met by assessment against the abutting property. One of the objections made is that the city has already issued bonds to such an amount as to exceed the limit fixed by law, and having exhausted its capacity in that regard cannot lawfully issue those necessary to the carrying out of the paving project. The soundness of this objection depends upon whether bonds issued for a city waterworks and light plant are to be included in computing the ten per cent of the assessed valuation which is the limit placed by the statute upon the total amount of bonds the city may issue. This turns upon the interpretation of the statute — specifically upon what is meant by the phrase “for general purposes” in an act providing that bonds for utilities (such as waterworks) shall not be taken into account in determining the limit of the city’s power to issue bonds for “general purposes.” The plaintiffs contend that “general purposes” refers to expenses the burden of which falls upon the city as a whole and not upon the owners of property specially benefited. The defendants assert that “general purposes” refers to all public improvements other than utilities (such as waterworks and electric-light plants), regardless of whether the ultimate cost falls on the general taxpayer or on the owners of property specially benefited.
The assessed valuation of all the property in the city for 1923, the year directly involved, was $121,380,689; for 1924 it was $128,-985,288. The bonded indebtedness of the city is thus stated in the findings:
“General bonds .................................. $4,256,996.9o'
Special improvement bonds ...................... 4,394,872.00
Water and light bonds .......................... 6,274,500.00
Making a total outstanding bonds.............$14,926,368.90”
Obviously, therefore, if the plaintiffs are right in their contention that water and light bonds are to be counted, the limit of 10 per cent has already been exceeded and the city is without authority to issue the bonds in question; while if these bonds are not to be taken into account there is a margin of some three and a half million dollars.
The following is the section of the statute requiring to be interpreted, the part introduced by the second “Provided further” having been added by amendment in 1919, without other change:
“At no time shall the bonded indebtedness of any city of the first class having a population of fifty thousand or more, except for bonds issued for special improvements and for sewers, for which a special tax is levied upon the property improved, exceed five per cent of the assessed value of all the taxable property within said city, as shown by the assessment books of the previous year; and at no time shall the bonded indebtedness of any city of the first class having a population of fifty thousand or more, including bonds issued for special improvements, for which a special tax is levied upon the property improved, exceed ten per cent of the assessed value of all the taxable property within said city, as shown by the assessment books of the previous year: Provided further, That nothing in this act shall be construed to impair or invalidate any bonds already issued, whether for general purposes or for special improvements, or bonds to pay for improvements already legally petitioned for: Provided further, That in all cities now owning or which may hereafter acquire a public utility of any kind, such as waterworks, electric-light plant or other like utility, the bonds issued by the city to acquire, enlarge, extend or improve any such utility shall not be taken into account or in any way limit the city’s right to issue bonds for general purposes or impair the city’s debt-making power for general purposes as provided for in this section; and bonds for general purposes may be issued by the city to the same extent as though no utility bonds had been issued.” (R. S. 10-302.)
We agree with the conclusion of the district court that the phrase “general purposes” as used in the section quoted refers to bonds issued for improvements the cost of which falls on the city taxpayers generally, as distinguished from those issued for improvements the expense of which is met by assessments against the property specially benefited. This seems to us the natural construction, as according with the sense in which such expressions are commonly used. That, however, is far from conclusive, for a different meaning might readily be attached if required by other considerations. A stronger reason is that the original portion of the section of which the amendment is made a part is largely based on the distinction between these two classes of improvements, and bonds already issued or petitioned for are excepted from its operation, “whether for general purposes or for special improvements,” the term “general purposes” being employed obviously with this very distinction in mind. Moreover the added portion of the statute describes the character of bonds, the limit on the issuance of which is to be computed without regard to utilities bonds, as those issued , “for general purposes as provided for in this section.” “This section” clearly refers to the entire section as amended and not merely to the new portion. The history of the statute tends to confirm this view of its meaning. In 1917 a proposition was on foot in Kansas City to issue bonds to the amount of $125,000 to build an addition to the city hall. In November of that year this court held, overruling the district court, that outstanding waterworks bonds had to be taken into account in determining whether the five-per-cent limit would be exceeded, and the issuance of the new bonds was for this reason enjoined. (State, ex rel., v. Kansas City, 101 Kan. 806, 168 Pac. 907.) The amendment of 1919, now under consideration, was the result of a bill introduced by the senator from Wyandotte county, which it seems probable was suggested by the decision referred to. If so its purpose would seem to have been to enlarge the right of the city to issue general bonds in the sense of bonds the ultimate payment of which falls upon taxpayers generally and not upon the owners of property specially benefited. The force of this suggestion may be somewhat weakened, however, by the fact that at the same session, but some six weeks later, another bill was introduced in the senate which became a law, the two bills being voted on in the house on the same day, authorizing cities having a population of more than 85,000, and an assessed valuation of over $90,000,000, to issue city hall bonds without restrictions and upon a past election. (R. S. 18-1067.) ' '
Moreover the bill in which the statute under consideration origi- • nated was at first drawn as a separate enactment, and read as follows : ' ’
“That all bonds heretofore or hereafter issued by any city of the first or second class for the purpose of acquiring, enlarging, extending or improving any public utility such as waterworks, light plants, ice plants or any other public utility shall not be a limitation upon the power of the city to issue bonds for any other purpose.”
This bill was referred to the committee on cities of the first class, which reported favorably a substitute in the form of an amendment to the existing statute, which was duly passed, and is the section now under discussion. It will be noted that if the section above quoted from the bill as introduced had been addéd to the then existing law as an independent enactment the results would have been to bring about clearly and definitely the condition which the defendants claim now exists. Instead, however, of making the change first proposed, either by a separate bill or as an amendment, the legislature saw fit to enact the present law. The so-called substitute was in effect an amendment to the original bill, proposed by the senate committee and adopted by the senate. This feature of the legislative history of the statute would not warrant giving it a meaning not found in its language, but is not without value as tending to confirm the view that the meaning expressed was that intended. The language was changed so as to fit into the statute as already framed, and the enlargement of the right to create bonded indebtedness in stead of being made applicable, as in the first draft, to bonds “for any other purpose” (than waterworks and like utilities) was limited to “bonds for general purposes,” so that the restriction removed was that upon the power to incur debt “for general purposes as provided for in this section.”
In behalf of the defendants attention is called to a rule of the senate that “no substitute shall be made for any bill which changes the subject matter of the bill under consideration.” The argument is made that the power of the committee was “to substitute one proposal for another, provided it made no material change in the bill.” It is also suggested that if the substitute differed materially from the original bill it was not validly enacted, because it was not read three times in the senate. For which reasons it is urged that the substitute should be interpreted as of the same effect as the original bill. We regard the prohibition against a change of the subject matter as meaning merely that the substitute shall relate to the same general subject — not that no material changes may be made. The substitute being, as already noted, in effect an amendment of the original bill, it seems reasonable to regard the bill as having been read three times, as shown by the record. But if necessary to a valid enactment the presumption would doubtless be indulged that an additional reading was had, or an emergency declared, although the journal was silent on the subject. (Weyand v. Stover, 35 Kan. 545, 553, 11 Pac. 355; Railway Co. v. Simons, 75 Kan. 130, 88 Pac. 551.)
In the defendants’ reply brief it is said with respect to the change from the original to the substitute bill: “As a matter of fact senate bill No. 46 . . . was the bill that the legislature intended to enact. It passed its second reading in the senate, and was garbled, while in the senate committee of first class cities, by some person in that committee, who attempted to attach it to the old 1909 law as an amendment, and the senate believing that its provisions were unchanged and that it had properly been attached to the old law, accepted the substitute bill, which it passed for the purpose of exempting utility bonds from limiting the power of cities of the first class to issue bonds for any other purpose.” The court is bound, however, by the enrolled bill, the due enactment of which is open to attack only by affirmative and conclusive recitals of the journals, and the language of which is what we are required to interpret.
The defendants invoke the doctrine of statutory construction that where an amendment is made by an addition to an existing section, the original matter is ordinarily conceived as having been the law all the time, rather than as being a new enactment. An effort is made to extend this principle so that it shall include a rule that the new matter shall be interpreted as though it were an independent act, implying (as we understand the contention) that the language of the original section is not available to throw light on the meaning of that employed in the added part, as would be the case if the entire section had been enacted as a whole in the first instance. The accepted doctrine referred to is of value, for instance, in determining as of what time a statute is regarded as speaking, or which of two conflicting provisions shall control as the later enactment. We do not think it can be enlarged to the extent indicated, especially where, as in the instance at hand, a change originally drafted as an independent measure was later incorporated into an existing section, with very considerable alterations.
A further argument is based upon the view that the following part of the statute is merely interpretative and explanatory and should not be regarded as intended to make a distinction between “bonds for general purposes” and “bonds for special improvements”:
“Provided further, That nothing in this act shall be construed to impair or invalidate any bonds already issued, whether for general purposes or for special improvements, or bonds to pay for improvements already legally petitioned for.”
To us the language quoted, whether or not it adds to the substantive part of the statute, seems important as showing the distinction in the mind of the legislature between the two classes of bonds, and the language employed in distinguishing them from each other.
A number of matters are urged as reasons for departing from a literal interpretation of the statute, in order to give it the effect contended for by the defendants. Among them are these: The general policy of the legislature as shown by other statutes is in harmony with the interpretation of the defendants rather than that of the plaintiffs, as shown for instance by a statute of 1919 authorizing cities of more than 85,000 inhabitants to oper-ate a coal mine to obtain coal for use in connection with city utilities, issuing bonds for the purpose without any restrictions whatever. (R. S. 13-1461 to 13-1469.) The statute under consideration, and others as well, show a purpose to impose a closer restriction upon bond issues which place the burden of payment upon the taxpayers of the city generally than upon those to be met by assessments on the property specially benefited, and a contrary intention should not be attributed to the legislature if it can be avoided by any permissible interpretation. Bonds to considerable amounts have already been issued which are in excess of the statutory limit, if the plaintiffs’ construction of it is correct, some of them being held by the state. This involves an administrative interpretation in favor of the defendants’ views, which should be given weight by the court.
It is true plausible reasons may be given why the creating of bonded indebtedness should be more closely limited where payment is to be made by the general public than where the cost is to fall upon property specially benefited, and a prevailing legislative policy to that effect may be discoverable. But whether at a given time in a general statute of restricted scope, presently applicable to a very few cities, a greater liberality ought to be indulged toward purely public improvements is a legislative problem the determination of which either way can hardly justify the courts in seeking some other meaning from that shown on the face of the enactment. Such administrative interpretation as may be thought to appear from the facts stated is hardly so persuasive as the decision of the judges of the district court who tried the case below. Bonds issued in excess of the statutory limit, if they contain the usual recital to the contrary, are doubtless enforceable in the hands of innocent purchasers, and if the state, as the first purchaser from the city, holds bonds of that character the legislature has probably ample power to deal with the matter so as to prevent loss.
The language of the statute under discussion seems to us not so ambiguous as to warrant a strained effort to avoid its apparent meaning; nor do the reasons assigned fbr giving the language another construction appeal to us as sufficient for the purpose. Our conclusion on this point makes it unnecessary and inadvisable to determine the others that have been argued, particularly as some of them involve an inquiry as to the constitutionality of the statute upon which the paving project is based. “It is a well-settled principle that the constitutionality of a statute will not be determined in any case, unless such determination is absolutely necessary in order to determine the merits of the suit in which the constitutionality of such statute has been drawn in question.” (12 C. J. 780.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In May, 1923, R. E. Pulley was an employee of the Chicago, Rock Island & Pacific Railway Company, which was operating under the workmen’s compensation law, and while he was so employed he sustained an injury for which he claimed compensation. Alleging that he had proposed arbitration of the claim but that it was refused by the company, he brought an action alleging that he was so injured and disabled as to be entitled to compensation in the amount of $2,604. Before the trial of that action he entered into a compromise agreement with the company by which it was agreed that upon the payment of $250 full satisfaction would be acknowledged by plaintiff, and that amount was paid. The following stipulation was then signed:
“It is hereby stipulated and agreed by and between the parties hereto, that the above case has been fully settled and the claim therein made fully paid and satisfied, and that said cause shall be and is hereby dismissed by the plaintiff with prejudice to any future suit or action at the cost of defendant.”
The stipulation was presented to the court on September 26, 1923, and a judgment thereon was entered, dismissing the cause with prejudice in accordance with the stipulation. That judgment has not been appealed from, reversed or modified. Later and on May 13, 1925, he brought the present action setting forth the relation of the parties, the injuries sustained, the wages formerly paid for his services, and then sets forth that after he had instituted his suit in 1923, a settlement was made and a stipulation for dismissál of the suit which had been begun was entered into. This was followed by averments to the effect that it had been signed through a mutual mistake of fact, in that he did not know or realize the extent of the .injury and had been led to believe by defendant’s doctor that his injuries were temporary in character, whereas they are permanent and serious. As a further reason for signing the release and the stipulation to dismiss the action, he alleges that he had been told that he could not recover a larger sum than the defendant’s wages and was not advised by anyone as to his rights or the amount that he was entitled to recover. He therefore offered to tender back $250, and asked for compensation in the sum of $2,443. A motion was made by the defendant for judgment upon the pleadings. The motion was denied and defendant- appeals.
What was the effect of that judgment is the vital question in the present case. Involved in the first action'was the right of the plaintiff to compensation, including the nature and extent of his injuries. Issues were joined between the’parties, but before they were tried the claim for compensation was compromised and settled and an agreement not only of the amount of compensation but also that the action should be dismissed with prejudice to any future action. The effect of such a judgment has been fully determined. It has been ruled that under our code two methods of dismissal are provided, one is dismissal without prejudice and another is dismissal with prejudice to a future action. A dismissal with prejudice has been held to be an adjudication on the merits of the case, a final disposition of the controversy which bars the right to bring or maintain an action on the same claim or cause ojf action. (Hargis v. Robinson, 70 Kan. 589, 79 Pac. 119, and cases there cited. See, also, Robinson v. Railway Co., 96 Kan. 137, 150 Pac. 636; Davis v. Davis, 101 Kan. 395, 166 Pac. 515; United States v. Parker, 120 U. S. 89.)
It is true, as plaintiff contends, that a release may be set aside on grounds of fraud or mutual mistake and that an attack on a release for fraud or mental incapacity may be joined with an action for compensation. (R. S. 44-534; Tidwell v. Schaff, 114 Kan. 255, 217 Pac. 702.) This provision, however, does not apply to a final judgment on the merits of the claim. In the former case finally disposed of, the matter of compensation upon any and every ground was an issue in the case. There the plaintiff pleaded substantially the same facts as were set forth in the second case. He alleged as he did in the second that he was entitled to $108 for permanent disability and $6 per week during the statutory period of eight years, for partial permanent disability, amounting to $2,604 for which he asked judgment. His disabilities were particularly alleged. He did state in the second that he was not fully advised of his legal .rights under the compensation act, but he had employed counsel, and acting under his advice he compromised and settled the amount of his claim and agreed that a final judgment might be rendered dismissing the action in such a way as to bar any future action on the claim. If no judgment of this character had been rendered he could have tried out the validity of the release in the action for compensation, but having allowed judgment to be entered upon the merits of his claim he is barred from any relief until that judgment is reversed, modified or set aside in some proper way. In Sohenck v. School District, 100 Kan. 389, 164 Pac. 169, it is held that compromise judgments and those taken by consent in cases where the courts have jurisdiction are not open to collateral attack. The court had jurisdiction of the cause and of the parties to the action, and hence the judgment is not void. Being only voidable it must be attacked in some direct proceeding instituted for the purpose of having it set aside. There was no fraud in the entry of judgment, and it is therefore final in form and effect and must be regarded as an end of this litigation until that judgment has been set aside by appeal or in some direct proceeding brought for that purpose.
The judgment is reversed and the cause remanded with instructions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by W. L. Butler as trustee for the First National Bank, of Kansas City, Mo., to foreclose a mortgage on real estate given by May Walsh to J. L. Petty-john & Co., to secure a promissory note of $5,000. E. S. Winter-mute, who held a mortgage on the same property, was named as a defendant, May Walsh did not contest nor appear in the case, and the question in controversy was whether plaintiff or Wintermute had the prior lien upon the property. The question was determined in favor of Wintermute, and from the judgment plaintiff appeals.
It appears that J. L. Pettyjohn & Co., hereinafter spoken of as the company, were dealers in mortgages and other securities, and held the May Walsh note of $5,000 secured by a mortgage. On December 20,1920, the company owed the First National Bank about $60,000, and had put up as collateral, securities to the extent of $14,000, and at that time had a cash deposit in the bank of about $28,000. Abernathy, an officer of the bank, having heard some disquieting information as to the condition of the company, went to the office of the latter and first asked for a check appropriating the $28,000 deposit, thus crediting it on the indebtedness to the bank. The manager of the company being absent, the bookkeeper declined to issue the check, but did yield to the demand of the bank for more collateral and turned over securities of the face value of about $33,000. Upon the return of the officer to Kansas City, the $28,000 deposit was charged off and credited on the $60,000 debt. Two or three days later the bank was induced to loan the company $13,000, and took as collateral for the loan, bank stock of the conceded value of $20,-000. Shortly afterwards it sold the bank stock for its face value, and the proceeds were applied first to the payment of the $13,000 loan, and the balance $7,000, was applied on the old indebtedness to "the bank. There is testimony that the bank acquired possession of the May Walsh note as collateral sometime about December 30, 1920, about a week after the $33,000 block of collateral notes and securities had been obtained, and the mortgage securing the Walsh note was recorded on December 30, 1920. When the Walsh notes were obtained by Wintermute from the company, the latter represented that the mortgage securing them was a first lien upon the property, but that mortgage was not recorded until January 18, 1921, so that there was priority of right in plaintiff according to the recording act. On February 21, 1921, the company was adjudged a bankrupt, and John W. Breyfogle was duly appointed trustee in bankruptcy to administer the estate. The trustee was a witness in this case, and his evidence was to the effect that only about ten per cent of the indebtedness against the estate had been realized from the assets. A suit was brought against the bank by the trustee, alleging that the bank had taken and held, as collateral on the indebtedness of the company, $53,950, an amount largely in excess of that indebtedness. It was also alleged that the transfer of this collateral to the bank, which included the Walsh note of $5,000, constituted a voidable pref erence under the law, as they were .turned over about two months ■prior to the adjudication in bankruptcy. The trustee asked for the value of the securities in excess of what was taken to satisfy the debt to the bank. Before the case came to trial, Abernathy, in behalf of the bank, made a settlement with the trustee, paying to him $10,000 in cash as the value of the securities held by it in excess of what was necessary to discharge the indebtedness owing by the company to it. In July, 1924, the bank paid to the trustee $10,000 as a consideration for the transfer of the right, title and interest of the trustee to all the notes held as collateral by the bank, including the May Walsh note.
We think the court reached a correct conclusion as to the matter of priority. In a memorandum opinion the court stated that on December 20,1920, the indebtedness of the bank was $60,000, and then it referred to the credits shown which reduced the indebtedness to about $17,000. Reference also was made to the large amount of collateral secured by the bank, which appeared to amount to more than double the indebtedness. Some of the testimony indicates that the bank acquired the Walsh note on December 21,1920, while other testimony indicates that it was acquired on December 30, 1920, after the large block of collateral had been taken from the company. As the Walsh note and other securities were obtained shortly before the company was adjudged a bankrupt, the trustee made claim to the collateral securities upon the ground that the transfer of them constituted a voidable preference and accordingly he brought suit against the bank in the federal court to recover them. In that action the trustee claimed the amount of collateral of the company illegally transferred and held was $53,950, and the testimony of the trustee was that the bank actually held that amount. The action in the federal court was not brought to trial, but was settled about a year prior to the trial of the present case. In July, 1924, the bank paid the trustee $10,000 for the collateral securities of the company it held and on which it had not realized, in consideration of which the trustee transferred the title and all the interest he held in the Walsh note and other securities. Before that time the bank had full information of the warranties and representations made to Wintermute by the company and of the equities of Wintermute in the. mortgaged property. The trial court found that the bank was not a purchaser for value until that time and that, having knowledge of the equities ex isting between Wintermute and the company, it stood in the same positibn as the bankrupt company would have in a controversy with Wintermute. It is said by the plaintiff that it does not appear that there was an excess of collateral, nor even that the bank had ever realized the amount of its debt out of the collateral. By the settlement made the bank in fact acknowledged that there was a large excess of collateral. It also admitted that the value of the collateral purchased exceeded the amount of the indebtedness, at least to the extent of $10,000. Instead of turning back the Walsh note or other securities and thus reducing the amount to be paid to the trustee, it chose to pay a larger sum in order to acquire the title to the paper. As to the payment of the indebtedness there is testimony tending to show that the bank realized more than the full amount of its debt of credits and the collateral. Aside from the $28,000 credited on the debt, as well as other credits that have been mentioned, a ledger account of the bank relating to the transactions in question was produced in evidence and it showed credits as follows:
January 8, 1921............................. $6,000
January 27, 1921............. 14,000
February 4, 1921............................. 8,022
July 9, 1924 ................................. 19,027
These credits amount to $47,050, and with the other credits shown very largely exceeded the indebtedness of the company. In the purchase of the notes the bank recognized that the title was in the trustee and the consideration for the purchase was then paid. While it had obtained possession of the note before that time it had not parted with the purchase price, and it has been held that it is the time of payment and not the time of gaining possession that controls in determining when a purchaser becomes a holder in due course. (Callahan v. Bank, 113 Kan. 577, 215 Pac. 831.) The action brought by the trustee in bankruptcy and the settlement and transfer of the notes purchased by the bank were set forth in the pleadings in this case, and evidence of the transaction was received. In this connection plaintiff argues that only the trustee could question the preference or maintain an action to set aside an unlawful preference, and that defendant could not do so nor take any advantage of the validity or invalidity of the preference. It is conceded that the trustee alone can maintain a suit to avoid a preference, but it appears that the facts pertaining to the action of the trustee and the settlement and transfer was brought out to show that the Walsh note was purchased and paid for by the bank after the equities of Wintermute had intervened and the bank had notice of these equities. For that purpose the matter of the bringing of the suit and settlement were pertinent and are controlling facts in the present case. The findings of the trial court are necessarily conclusive on all questions relating to the purchase of the paper, the good faith of the plaintiff throughout the transaction and matters of fact tending to show whether or not the plaintiff became a purchaser in due course. The evidence is deemed to be sufficient to support the findings of the trial court, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Farmers and Bankers Life Insurance Company, a Kansas corporation, issued two policies, one on January 13, 1915, and one on December 9, 1915, insuring the life of Lucian H. Brown for the benefit of his wife, Ora M. Brown. No premium on either was ever met beyond that for the first year, paid upon issuance of each policy. On the day the second premium on each policy was due the company notified the insured of the maturity and of its intention to cancel the policy unless payment were made within thirty days. This was intended as a compliance with the statute requiring such notice as a preliminary to cancellation (R. S. 40-332), but was ineffectual for that purpose because the policies allowed thirty days of grace. (Priest v. Life Association, 99 Kan. 295, 161 Pac. 631.) Some six weeks later the company sent the insured a letter with respect to each policy,-urging its reinstatement. On March 16, 1923, this action was brought by the company against the beneficiary asking that the policies be declared canceled and the company no longer liable on them. In an answer the beneficiary asked judgment for the amount of the policies. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
1. The plaintiff presents several theories for the support of the judgment. One is that the letters urging reinstatement supplemented the notices of cancellation, which were otherwise insufficient, and taken in connection with them brought about a forfeiture in compliance with the statute referred to, under the authority of Branch v. Farmers’ Life Ins. Co., 270 Fed. 863. Assuming this contention would otherwise be good, a doubt arises from the fact that while the letters themselves did not make a new medical examination a. condition of reinstatement, the court found that it was the custom of the company to require it, and a provision of the policy authorizing reinstatement was conditional upon proof of present good health.
2. The pleadings did not contain an allegation of the death of the insured. It developed in the trial, however, that he died May 16, 1919. No proof of loss was ever furnished the company. The policies required such proof to be made within one year after the death, as a condition precedent to recovery thereon. The defendant argues that proofs of loss were waived by the notices and letters already referred to, sent before the death of the insured, and by the claim made in this action that the policies are invalid. The rule is familiar that a denial of liability by an insurance company, if made within the period allowed for proof of loss, based solely upon grounds not connected therewith, waives such proof. (Note, 22 A. L. R. 408.) There is a conflict of opinion as to whether such denial of liability if made after the expiration of that period effects a waiver, but a majority of the states that have passed on the matter, including Kansas, hold to the contrary. (Same note, p. 424; Insurance Co. v. School District, 66 Kan. 77, 71 Pac. 272.) The note cited concludes with the words:
“A denial by an insurance company of any contingent liability on a policy, even before a loss is incurred by the insured, has been held to constitute a waiver of defects in proofs of loss subsequently presented.” (p. 428.)
In the case referred to, however, while before the loss the fire insurance company wrote to its agent to cancel .the policy, the insured knew nothing of this until after it had occurred. In Equitable Life Assur. Soc. v. Winning, 58 Fed. 541, proof of loss was held to be waived by a life insurance company declaring a forfeiture before the death of the insured. There were circumstances which affected that decision, however, which are not here present. For instance, the company was chargeable with notice that the forfeiture was invalid or at least of doubtful validity; notice of the death of the insured was given less than two months after the lapse of the period of 90 days allowed by the policy, the delay being occasioned by the administrator finding the notice of cancellation among the decedent’s papers; and the policy was in force at the time of the death by virtue of a statutory extension by application of the surrender value at the time of default in payment of premiums. Here there was no actual declaration of forfeiture, although 'the letters urging reinstatement may be regarded as having much the same effect. The company was evidently acting in entire good faith in supposing its notice of intention to cancel was in compliance with the statute. And the company knew nothing of the death of the insured for some five years, a delay which may easily have prejudiced it by depriving it of a reasonable opportunity to investigate. In a case (Girard Life Ins. Co. v. Mutual Life Ins. Co., 97 Pa. St. 15) cited in that just considered, proof of loss was held to be waived by a declaration of forfeiture before death, aided perhaps by the fact that defense was made on the ground of the forfeiture.
We need not, however, decide the effect of the failure to furnish proof of death or to give notice of it, for we conclude that inaction on the part of the defendant is fatal to the claim on her part in another aspect.
3. The defendant had five years from the death of her husband, May 16, 1919, in which to sue upon the policies. Ini her answer in this case she asked judgment against the plaintiff for their amount, but did not allege that her husband was dead — an allegation which of course was necessary to the statement of a cause of action thereon. If an amendment had been or were to be offered to the petition undertaking to supply this omission it could not avail to prevent the statute of limitation operating as a bar to a recovery upon the policies. (Powers v. Lumber Co., 75 Kan. 687, 90 Pac. 254.) Irrespective of the other questions suggested this consideration renders further proceedings in the case futile.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
.W. S. Fulton brought this action against the Farmers National Bank, of Topeka, to recover $10,000 and interest alleged to have been lost by him through the misconduct of G. W. Shimeall, its former cashier. He recovered judgment, and the defendant appeals.
The plaintiff’s version of the transaction is briefly this: He had done business with the bank nearly all the time- since it was organized. In November, 1922, some bonds which he held matured and were paid, and he deposited the proceeds in the bank. Shimeall, the cashier, talked with him about reinvesting the money. The plaintiff told him if the bank had some good investments, he would consider the matter, although he preferred government bonds. Shimeall asked him to take up a loan of one B. F. Ellington for $10,000. Later he rather urged the plaintiff to lend that amount to Ellington, saying he was absolutely good and would give a lien on a quarter section of Oklahoma farm land as security. The plaintiff agreed to make the loan. On December 2, 1922, he drew his check for the amount, payable to the bank, and left it with Shimeall, the agreement being that it was' not to be cashed until Ellington’s note, secured by a deed to the quarter section of Oklahoma land, had been delivered. About two weeks later a note for $10,000, dated Decem ber 2, 1922, due in nine months, signed by Ellington, was given to the plaintiff by Shimeall, who promised to procure the deed to the Oklahoma land, and who shortly afterwards told him the bank had the deed and would hold it. No deed was in fact ever executed to secure the note, nor was security given in any form. The note when signed by Ellington and given to Shimeall was made payable to the bank. Shimeall, without the knowledge or consent of Ellington changed it by inserting in front of the name of the bank the words “W. S. Fulton at,” and by changing it so as to require interest at eight per cent from date instead of ten per cent from maturity. Shortly before its maturity the note was placed with the bank for collection. It rvas never paid. The plaintiff made a trip to California and saw Ellington. He made a demand on the bank for his money, tendering back the note. The note was indorsed in blank by Shimeall at the time of its delivery to the plaintiff.
The jury returned answers to some fifteen questions. The findings, of which those numbered 1, 4 and 7 were attacked as not supported by the evidence, may be thus summarized:
(1) Shimeall was acting as cashier in the transactions referred to.
(2) The plaintiff when he delivered the check to Shimeall instructed him to hold it until the security was furnished.
(3) The conversation between the plaintiff and Shimeall about the delivery of the deed to the Oklahoma land as security took place as a part of the transaction in which the plaintiff gave his check.
(4) The changes in the note were made by Shimeall after its execution without Ellington’s consent.
(5) Ellington signed the note and left it in Shimeall’s hands to procure a loan of $10,000.
(6) Ellington and Shimeall were jointly interested in procuring the loan.
(7) Ellington did not authorize the changes in the note.
(8) Ellington received the benefits of the $10,000 procured by the execution of the note.
(9) Shimeall did not hand the plaintiff the note at the same time the plaintiff gave him the check.
(10) The plaintiff did not place the check in the hands of Shimeall and instruct him to deliver the proceeds to Ellington when the latter delivered the note to him for the plaintiff.
(11) The bank derived no benefit from the transactions between the plaintiff, Shimeall and Ellington, and retained no portion of the $10,000 represented by the check.
(13) None of the officers of the bank except Shimeall had any knowledge or notice of the transactions between the plaintiff, Shimeall and Ellington before their completion.
(15) The plaintiff accepted the promissory note from Shimeall with the knowledge that no deed to Oklahoma land had been procured as security for the note.
(16) At the time the plaintiff accepted the note Shimeall promised to procure such a deed for the plaintiff.
(17) The plaintiff accepted the note relying on Shimeall’s promise to procure the deed.
1. The defendant contends that the action is based on a tort and is barred by the two-year statute of limitation. The case was tried on a second amended petition. The first petition, filed March 14, 1924, merely alleged that the plaintiff delivered his check to the bank, by means of which the bank diverted the amount thereof from his deposit, no details being given. The first amended petition, filed July 5,1925, set out the alteration of the note, but not the cashing of the check in violation of instructions, a matter which was specifically pleaded for the first time in the second amended petition, filed August 8,1925. The contention is that until then no cause of action was stated, at least none of the nature of that now relied upon, and therefore the statute of limitations had run against it. We think the action is to be regarded as one for damages for the breach of a contract, or perhaps more accurately, as one for rescission for failure to perform, or for nonperformance in accordance with the terms of the contract, with the recovery of the money of which the plaintiff had been deprived. On that theory the statute of limitation would not have run although the action is considered as having been begun with the filing of the second amended petition.
2. On this phase of the matter the defendant argues that the entrance into such a contract as would otherwise sustain the judgment would be beyond the power of a national bank and therefore its breach would not warrant the recovery. In that aspect we think the case is within the principle of Bank v. Bank, 106 Kan. 303, 187 Pac. 697, and 111 Kan. 682, 208 Pac. 636. Although here the bank, as found by the jury, derived no profit from the transaction involved, and retained no part of the plaintiff’s money, it could properly, for the accommodation of a customer, undertake to act.as bailee or escrow holder on terms agreed upon, and having entered into such an arrangement would violate its contractual duty to him by handling the matter in a different way from that agreed upon, to his loss. In the syllabus of the opinion in the case cited, on its first appearance here, the transaction there involved — the accepting of papers to be delivered on certain conditions — was said to be within the powers of a national bank, and in the first words of the syllabus at its second appearance the bank was spoken of as having undertaken a bailment, which is contractual.
3. The defendant urges that inasmuch as the plaintiff, as found by the jury, accepted the note knowing that the deed to the Oklahoma land had not been procured, he waived the requirement in that regard. It is. to be borne in mind, however, that the jury also found that Shimeall promised at the time to procure the deed and the plaintiff relied on the promise. And the plaintiff testified, and the jury must be presumed to have believed the testimony, that after he had received the note (how long after is not stated, but the context seems to warrant the inference that it was practically at once) Shimeall told him the bank had the deed and would hold it. Granting that ordinarily the cashier could not bind the bank by such a promise, we think it may fairly be said that the promise and the statement that the bank had the deed may be regarded as parts of a single transaction. Under these circumstances the delivery was a violation of the bank’s undertaking.
4. The defendant urges further that the changes made in the note after its execution were not under the circumstances material and that Shimeall had no such relation to the paper as to give the alteration the effect of annulment. The rule is invoked that the substitution of one name for another is nota material alteration where it amounts to nothing more than inserting the real name of the party intended. This does not appear to be the situation presented. Ellington’s testimony was in effect that he intended signing a note payable to the bank. The contrary was not conclusively shown. The relations between Ellington and Shimeall or the bank are not entirely clear, and the jury must be deemed to have accepted any tenable theory that would support the judgment. The change in the rate and time of interest was obviously material, and the unlikelihood of the' signer supposing no interest was to be paid until after maturity does not change its character in this regard. (Insurance Co. v. Martindale, 75 Kan. 142, 88 Pac. 559; 2 C. J. 1174.)
It is argued that Shimeall was in effect a stranger to the note and that the changes made by him amounted (if unauthorized, as the jury found) to spoliation rather than alteration; that his act was not that of the bank — that the bank had no power to authorize him to make such an alteration; and that only the maker of the note could complain of the change. It is unnecessary to treat in detail the questions so suggested. The note delivered by the bank -to the plaintiff was not on its face the note Ellington had signed. He was not liable on it in that form. And assuming that the change was made under such circumstances that he was liable upon the instrument as originally executed, it was not the note it appeared to be when accepted by the plaintiff. In any event it was not a note the delivery of which to the plaintiff authorized the cashing of his check. The pursuit of this course was a violation of the terms of the agreement — an appropriation of the plaintiff’s money without the conditions of its deposit having been met.
The defendant complains of the giving and refusal of instructions concerning the effect of the changes made in the note. In view of what has already been said it is unnecessary to pass upon them in detail. In the pleadings and evidence there was a direct conflict as to whether Ellington consented to the change in the note by Shimeall. The jury found there was no consent, and inasmuch as upon the grounds already stated we regard this as preventing the delivery of the note to the plaintiff from authorizing the appropriation of the proceeds of the plaintiff’s check, there is no occasion to discuss the general rules concerning the alteration or spoliation of instruments-.
The judgment is affirmed.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The city of Fort Scott recovered a judgment for $529.05 against the Penn Lubrie Oil Company as indemnity for liabilities imposed upon the city by reason of the negligence and wrong of the oil company and also for $250 as an attorney’s fee in litigation which resulted from the negligence and wrong of the oil company. That company appeals.
The oil company erected a curb filling station on one of the streets of Fort Scott, and it is alleged that it was installed in a defective way, leaving the sidewalk in. a dangerous condition, in violation of the city ordinance. In January, 1924, Fred Bollinger received serious injuries as the result of falling over the defective intake pipe which constituted a part of the filling station. He instituted an action in April, 1924, against the city and the oil company, asking damages for injuries sustained as the result of falling over the defective pipe. On October 3, 1924, the matter was compromised between Bollinger and the oil company, and that company secured a release from Bollinger upon the payment to him of $300. The action was dismissed as to the oil company, but in the compromise it was agreed between Bollinger and the oil company that he reserved the right to proceed further against the city, and that the compromise with Bollinger should not in anywise affect his rights against the city. Bollinger continued the prosecution against the city, and on June 22, 1925, recovered a judgment in the sum of $500, and this amount the city, it was alleged, was compelled to pay. There was testimony upon which a finding was made that the oil company had knowledge of the pendency of the suit against the city, and that it was requested by the city to defend the case, and notified that if it did not do so the city would be compelled to employ counsel and would look to the oil company for reimbursement for any damages recovered and also for the expense of counsel. The oil company did not appear or defend. An attorney was employed to assist the city attorney in the trial of the case, and there is testimony that the reasonable value of his services was $250, the amount awarded. It is contended, .by the oil company that when Bollinger settled with it, it operated to release the city of Fort Scott as well as itself. In answer to that the other side say that the release was not intended to have that effect, but expressly provided that the right of Bollinger to proceed against the city was reserved to him.
The defendant contends that under the petition as well as the evidence the release obtained by it operated as a release of the city, and that the judgment subsequently rendered against the city was without validity. It is said that a full release executed to one \ primarily liable operates as a discharge of the liability of another j secondarily liable, and that therefore no cause of action remained against the city. Here it appears that the defendant did not obtain^ a full release of the injury resulting from its tort. It expressly agreed that the release it obtained should not be a full discharge of liability for Bollinger’s injury, as it stipulated that the remainder of the liability of Bollinger might be prosecuted against the city, and that the settlement should not affect his right to continue the prosecution against the city. It was manifestly not the purpose of the defendant or Bollinger to settle and discharge the entire damage resulting form defendant’s wrong, and was no more than a scheme to buy its peace for a small part of the damage, and was in effect an agreement that the balance might be obtained from the city because of its secondary liability. As to the liability of the defendant for' such a wrong it has been determined that where a party acting under j a license from a municipality, erects a structure upon a street which ! because of defects in its construction or negligence in keeping it in repair so that it becomes dangerous, there is a breach of the implied: contract between the licensee and the municipality, that the licensee shall exercise due care to protect the public from danger and the j municipality from loss, and where a person is injured by reason of ! the. negligent defect, the licensee is primarily liable for the loss while the municipality is only secondarily liable, and the latter may recover indemnity from the licensee, the active and real wrongdoer, against loss. The rule has been thus stated:
“In nearly all, if not all, of the cases where a municipal corporation has been held answerable in damages to a traveler injured by reason of the defective construction or negligent use of space under the street, the municipality has an action over against the user of such space as one on whom is the primary liability. And it has been repeatedly decided that, in an action by the municipal corporation to recover what it has been compelled to pay to the party injured, the judgment against the corporation is conclusive evidence of its liability.” (Case note, 61 L. R. A. 591; see, also, 40 L. R. A., n.s., 1165.)
A decision upon a like question has been made in City of Topeka v. Sash and Door Co., 97 Kan. 49, 154 Pac. 232. There the city had been compelled to pay a sum of money in satisfaction of a judgment obtained against it for personal injuries sustained by a pedestrian on account of a defective sidewalk. The defective condition was due to the active fault of the company whose plant abutted on the ■sidewalk, and it was held that the city was entitled to recover the money it was compelled to pay because of the active fault of the company in producing the defective condition. That is a controlling authority, and we find no occasion to give further consideration to the question of the right of the plaintiff to recover from the oil company.
The defendant next contends that it is not liable because Bollinger was guilty of contributory negligence, and that in the petition in this action it was not alleged that he was free from such negligence. That was a'subject for pleading and proof in the former action against the city, and in the answer filed by the city in that case the defense of contributory negligence was pleaded, and it must be assumed that it was there tried out and the judgment rendered is conclusive of the questions involved and of the liability of the city. (61 L. R. A. 591, and cases cited.)
A question is also raised as to the sufficiency of the notice given to the defendant of the pendency of the action and the time it was set for trial. Assuming that notice was necessary it was abundantly shown that defendant had notice of the action with a request that it aid in making the defense, and at the same time the defendant was informed that the city would look to the defendant for reimbursement of any damages recovered by Bollinger in the suit as well as for the expense of additional counsel. In reply defendant said that the city was not liable for the injury, and further that it did not feel any responsibility to the city except to give its good will. Upon the testimony the trial court found that defendant had' notice and knowledge of the pendency of the action, but that it did not appear or defend in the action. The finding is conclusive on that question.
An objection is made to the allowance of an attorney’s fee, but the court found upon sufficient evidence that counsel was employed by the city, and that his services were recognized and accepted by the city, and that the city received valuable benefit from such services, the reasonable value of which was $250. The evidence sustains the finding of the court.
No other material question is raised, and it follows that the judgment must be affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to enjoin the defendant from prosecuting an action in Missouri to compel the plaintiff to pay to the défendant the amount named in a policy of life insurance issued by the plaintiff on the life of Lee Beauford Wood, the deceased husband of the defendant, in which policy the defendant was named as the beneficiary. The plaintiff also sought the cancellation of the policy. A temporary injunction against the defendant was granted at the commencement of the action. She filed a motion to dismiss the action. That motion was sustained, and the plaintiff appeals.
The motion was heard on the allegations of the petition, certified copies of the petition and service of summons in the action in Mis souri, and admissions made at the time the motion was heard. The admissions were in part as follows:
“1. That at and prior to the commencement of this action it [the plaintiff] had complied with the requirements of the laws of the state of Missouri and that it was authorized to do business and was doing business in the state of Missouri under and by virtue of sections 6310 and 6310A of the Revised Statutes of .Missouri, 1919.
“2. That at the time of the commencement oí this action there was an action pending between the same parties in the circuit court of St. Louis, Missouri.”
The certified copy of the petition in the action in Missouri disclosed that that action was one to enforce payment of the policy which the plaintiff here seeks to have canceled. The plaintiff is a Kansas corporation and has its principal place of business in the city of Topeka, in Shawnee county. The defendant is a resident of Sedgwick county.
1. The reason set out by the plaintiff for the cancellation of the policy was that it had been forfeited on nonpayment of premiums, and all liability of the company under the policy had been discharged by a loan to Lee Beauford Wood during his lifetime. That would have been a complete defense to the action on the policy in the Missouri court or to one that might have been commenced in Kansas.
. In 32 C. J. 1268 it is said :
“Ordinarily, where a policy cannot be avoided on the ground of fraud, misrepresentation, or concealment, a court of equity cannot direct its cancellation to any claim on which there is a good legal defense, or declare that there is no legal liability upon it.”
Also, in 9 C. J. 1162 :
“It is almost universally held, except in a considerable number of decisions in which fraud was the ground on which relief was sought, that the"jurisdiction of a court of equity, as a general rule, will not be exercised when complainant’s remedy at law, either by way of action or defense; is plain,' adequate, and complete.”
The following language is found in 3 Joyce, on Insurance, § 1664:
“As a general rule, a court of equity will not exercise jurisdiction to cancel a contract merely because it had become void or inoperative by reason of some fact which has taken place since its execution.”
The headnote to Insurance Company v. Bailey, 13 Wall. (U. S.) 616, reads:
“Although equity have power to order the delivery up and cancellation of a. policy of insurance obtained on fraudulent representations and suppressions of facts, yet it will not generally do so, when these representations and suppres sions can be perfectly well used as a defense at law in a suit upon the policy. Hence a bill for such a delivery up and cancellation was held properly ‘dismissed, without prejudice,’ though the evidences of the fraud were considerable, there being no allegation that the holder of the policy meant to assign it; and-suit on the policy having after the bill was filed been begun at law.”
The rule declared in 9 C. J. 1162 is supported by Miller v. Kettenbach, 18 Ida. 253; Reedy v. Chicago Vinegar & Yeast Co., 30 Ill. App. 153; Bankers’ Reserve Life Co. v. Omberson, 123 Minn. 285; Town of Venice v. Woodruff et al., 62 N. Y. 462; Balestier v. Mechanics’ Nat’l Bank, 15 N. Y. St. 46; Fludd v. Insurance Society, 75 S. C. 315, 319; The Sailors v. Woefle, 118 Tenn. 755, 756; Johnson v. Swanke, 128 Wis. 68; Note to Johnson v. Swanke, 5 L. R. A., n. s., 1048; Note to Bankers’ Reserve Life Co. v. Omberson, 48 L. R. A., n. s., 265; Grand Chute v. Winegar, 15 Wall. (U. S.) 373.
The plaintiff was not entitled to an order canceling the policy.
2. The plaintiff asked that the defendant be enjoined from prosecuting the action in Missouri because that action “is not brought in good faith, but is brought for the purpose of vexing and harassing the plaintiff and causing this plaintiff the expense of defending said action in a foreign state and that the ends of justice require that this defendant be enjoined and restrained from proceeding against the plaintiff in a foreign state.”
The court in Missouri had j urisdiction of all the parties to' the action in that state. The defendant, Frances Belle Wood, chose, that state in which to undertake to enforce payment of the policy. The Bank Savings Life Insurance Company had previously consented, as required by. the laws of Missouri, that an action against it might be commenced in that state and service of summons be made on the superintendent of insurance. The statute of Missouri is very similar to a like statute of this state governing the same matter.
In Cole v. Young, 24 Kan. 435, the following rule was declared:
“A court of equity may restrain a defendant, who is within its jurisdiction and subject to its process, from prosecuting any action or proceeding either in the courts of this or of a foreign state.
“But no such restraining order will be made simply because the litigation is in a foreign state, or to enforce a mere legal right, even though such right be granted by the statute of this state, but only when there is a manifest equity which compels such restraining order.” (Syl. ¶¶ 1, 2.)
In Zimmerman v. Franke, 34 Kan. 650, 9 Pac. 747, the court said:
“Where a citizen of this state attempts by a pi’oceeding in attachment or garnishment in another state to subject to the payment of his claim the personal earnings of another citizen of this state, which personal earnings are by the laws of this state exempt from being so applied, such first-mentioned citizen may be enjoined by an action in. this state from further prosecuting his proceeding in attachment or garnishment in the other state.” (Syl. fl 2.)
In that case, the reason for allowing an injunction is disclosed by what the court said.
Another case in which one litigant was restrained from pursuing the same litigation in another state is Gordon v. Munn, 81 Kan. 537, 106 Pac. 286. In that case, there was abundant reason for exercising the powers of equity to compel a litigant in this state to cease endeavoring to litigate the same question in another state after the litigation had commenced in this state.
In Mason v. Harlow, 84 Kan. 277, 114 Pac. 218, the court said:
“Equity has power to restrain a pax-ty within its jurisdiction from prosecuting a suit in the courts of another state, and in a proper case will not hesitate to exercise the power.
“Courts will not enjoin a suit in another state merely on the ground of convenience of parties, but will do so when such restraint is necessary to prevent one citizen from doing an inequitable thing, as where the action has been brought maliciously, in order to vex and harass another citizen or to interfere with or prevent the free administration of justice in a suit pending in this state.” (Syl. ¶¶ 1,2.)
These cases disclose the rule that has been adhered to in this state. If an action between citizens' of this state is commenced in a court of another state and that court obtains jurisdiction of both the parties thereto, a subsequent action in this state to enjoin the plaintiff in the action in the foreign state from further prosecuting that action, will not be entertained unless there is some reason why the matter should be litigated in this state. This court has held in the cases cited that the convenience of the parties is not sufficient reason for enjoining the prosecution of the action in the foreign state. This is doubly true when the action in the foreign state is the one first to be commenced.
The motion to dismiss was not the equivalent of a demurrer to the petition because the motion alleged the facts on which it asked that the action be dismissed. The reasons given in the petition for asking for an injunction were controverted by the evidence attached to the motion and by the admissions which were made at the time the motion was heard.
The conclusion of the court was in the nature of a general finding of fact in favor of the defendant based on evidence, so far as the reasons given by the plaintiff for an injunction against the defendant are concerned.
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The opinion of the court was delivered by
Hopkins, J.:
These were actions to recover from the officers and directors of a defunct bank the amounts of several deposits, under- the statute which provides, among other things, that any officer or director of a bank who receives or assents to the reception of deposits by it when he knows it is insolvent or in a failing condition is liable therefor. (R. 'S. 9-163, 9-164.) The question of the constitutionality of this statute was considered in some of the same cases on a previous hearing. (Ramsey Petroleum Company v. Adams, 119 Kan. 844, 241 Pac. 433.)
The facts, briefly, are these: The Butler County State Bank was organized in 1909 by J. B. Adams, who was its principal stockholder and managing officer. Mr. Adams died in 1921 while an examination of the bank was in progress. Previous to his death the bank had some heavy excess loans. Its general condition, which was not good, did not improve, and on March 30, 1923, it was closed by the bank commissioner. The defendants, except Mrs. E. F. Adams, were officers and directors of the bank at the time it was closed. The plaintiffs were depositors therein.
Trial resulted in judgment against all of the defendants except Mrs. Adams, George W. Lyon, and C. L. Harris, as executor of the estate of T. A. Kramer, deceased. Demurrers to the evidence were sustained on behalf of Mrs. Adams and Lyon. Verdict was returned for Harris and judgment rendered thereon. The plaintiffs appeal from the judgment sustaining the demurrer of the defendant Adams and from the judgment in favor of the defendant Harris. The defendants against whom judgment was rendered also appeal.
The defendants again question the constitutionality of the statute under which the proceedings were brought. They maintain that the statute is void in that it deprives them of property without due process of law. The question was given serious consideration on the former hearing and need not now be treated at length. A contention that the statute is analogous to a Wisconsin statute considered by the supreme court of the United States in Schlesinger v. State of Wisconsin, 270 U. S. 230; 46 Supt. Ct. Rep. 260; 70 L. Ed. 301, may be briefly noticed. The statute of Wisconsin to which reference is made provided that any transfer of any substantial part of a grantor’s property within six years prior to his death without an adequate consideration should be construed to have been made in contemplation of death and subject to the inheritance tax. In the Schlesinger case the decedent made a transfer of some five million dollars of his property, or substantially all of his estate, to relatives within from two to four years of his death. A tax was imposed upon his estate upon these gifts. The lower court found that actually the testator did not make the transfers in contemplation of death, but that the statute raised a conclusive presumption that he did. On appeal the case was affirmed by the supreme court of Wisconsin, but was reversed by the supreme court of the United States. In the opinion by the latter, it was said:
“The challenged enactment plainly undertakes to raise a conclusive presumption that all material gifts within six years of death were made in anticipation of it and to lay a graduated inheritance tax upon them without regard to the actual intent. The presumption is declared to be conclusive and cannot be overcome by evidence. It is no mere prima facie presumption of fact.”
The Wisconsin statute is not analogous to ours. Ours does not undertake to raise a conclusive presumption as does the Wisconsin statute. The Wisconsin statute provides no escape from its provisions; ours does. Ours provides a mere prima facie presumption of fact which may be overcome by a showing on the part of the director of having examined into the affairs of the bank to know if possible its condition or some other bona fide reason that he (the director) was physically or otherwise unable to know its condition. The other provision of our statute which holds the director to have knowledge of the bank’s condition because of. his failure to discharge his duties is a declaration of substantive law, i. e., it creates an obligation on the part of the director to do certain things which if ' done will relieve him of liability to the depositor. It also gives the depositor a right to recover from him if he fails in this regard to do his duty. In Ramsey Petroleum Company v. Adams, supra, it was said in the opinion:
"But we cannot agree that the statutory provision under present scrutiny is justly subject to the criticism leveled against it. The provision reads: ‘And upon failure of any such person’ (officer or director) to discharge such duty (to examine the bank) he shall, for the purpose of this act, be held to have had knowledge of the insolvency of such bank or that it was in failing circumstances.’ This is not an arbitrary edict of the legislature making evidence • out of facts which are without inherent evidential significance, nor an arbitrary perversion of the rules of evidence. It is rather a statutory declaration of substantive law. We have many such rules of substantive law touching civil liability. Analogous liabilities are imposed by substantive law, even where there is little or no element of actual wrongdoing or negligence on the part of those subjected thereto.” (pp. 848, 849.)
In Orient Insurance Company v. Daggs, 172 U. S. 557, 43 L. Ed. 552, it was said:
“It is one thing to attribute effect to the convention of parties entered into under the admonition of the law, and another thing to give to circumstances, maybe accidental, conclusive presumption and proof to establish and force a result against property or liberty.” (p. 566.)
We conclude that the Schlesinger case is not controlling here and adhere to our former decision that the statute under consideration does not deprive the defendants of property without due process of law.
The plaintiffs contend that they were denied recovery against C. L. Harris as executor of the last will and testament of T. A. Kramer, deceased, on the sole ground of the defense of the physical incapacity of Kramer. Harris contends that the evidence submitted was insufficient to show that the bank was insolvent during the month of March, 1923, the time during which the deposits complained of were accepted; also that Kramer was not liable because he was physically incapable of investigating and knowing the condition of the bank.
Harris maintains that the condition of the bank which ultimately led to its closing was caused primarily by an oil boom which enveloped Butler county some years previous; that farmers who had been hard pressed to earn a living from the land found themselves possessed of large incomes from oil royalties; that the banks of the county were overflowing with money; that the large petroleum producers of the world such as the Standard Oil Company, the Empire Gas and Fuel Company, the Skelly Company and many others made large investments there; that new industries connected with the production of oil were daily coming' into the field, and that Butler county was in the midst of a tremendous financial boom; that refineries were being built, factories for the making of things used in the oil fields were being established; that the Santa Fe Railroad Company was constructing a new line from Emporia for the better handling of the freight business; that various new enterprises came into being and money was plentiful; that the financial condition from a practical standpoint required the banks to make excess loans in order to take care of the business. He then argues that with this financial condition existing, the banking department knew of and did not disapprove of the excess loans; that the excess loans were made largely by J. B. Adams; that a representative of the banking department was in El Dorado examining the bank at the time of Adams’ death; that the bank commissioner was informed of the death of Mr. Adams and knew the condition of the bank, but took no steps to close it; that the bank at the time of Mr. Adams’ death had deposits subject to check of nearly $1,400,000, and certificates of deposit amounting to almost $400,000, and resources amounting to $2,283,000; that the bank commissioner continued in close touch with the affairs of the bank and knew of the excess loans and overdrafts; that the bank continued to meet the demands of its creditors in the usual customary way and was not believed to be in an insolvent condition or in failing circumstances in July, 1922 (the time when Mr. Kramer went East on account of. ill health). It is contended that there is no proof that its officers and directors at that time knew it to be in failing circumstances or insolvent; that there had been no hint from the bank commissioner to Mr. Kramer in July, 1922, that the bank was insolvent or in failing circumstances; no suggestion that the excess loans were uncollectible nor a suggestion to Mr. Kramer that the bank should close its doors. It is contended with much vigor that there was no testimony showing that the bank was insolvent at or during the time of the receipt of the deposits in question; that there was no proof that the bank was insolvent when Mr. Kramer went away, no claim that he had not performed his full duty as a director as required by the statutQ, and that from the date he was stricken in Boston, shortly after he left El Dorado in July, 1922, to the date of his death in July, 1923, he was incapacitated, and by reason of his physical and mental disability unable to make any examination into the affairs of the bank or pay any attention to its affairs. Harris sums up the evidence of Kramer’s incapacity as follows:
“The testimony that Kramer was away; that he was sick; that he was unable to examine the books of the bank; that the doctors would not permit him to attend to business; that his mind was dulled by toxins and by opiates; that his physical condition was such that he could not direct his mind toward business affairs, and that outside of the sending to him of the oath of office, he had absolutely no communication with any director or officer of the bank in reference to bank matters, establishes beyond any controversy that so far as actual knowledge of the condition of the bank was concerned he had no information in reference to the condition of the bank other than what he may have possessed at the time when he left.”
While giving full consideration to all that is shown and argued in behalf of Mr. Kramer, we are compelled also to give due consideration to admitted facts shown by the record which rendered him liable as a director and which necessarily carries such liability to his executor. There was evidence that Mr. Kramer on August 28, 1920, joined with certain other directors in making a financial statement of the condition of the bank. This statement disclosed five of the principal excess loans which it is claimed had largely to do with the ultimate failure of the bank; that on March 5, 1921, he signed another financial statement which was sent to the bank commissioner, disclosing the same excess loans and others; that December 31, 1921, March 18, 1922, and June 6, 1922, he signed other financial statements which were sent to the bank commissioner showing the condition of the bank as of the date of each statement; that each succeeding statement showed the excess loans above mentioned and many others that were in the bank at the time it closed; that Mr. Kramer attended the quarterly meeting of the board of directors of the bank January 10, 1921, and signed a written report sent to the bank commissioner, showing the excess loans above mentioned, the amount of each and many others; that he attended quarterly meetings of the board of directors in July, 1921, January 5, 1922, April 7, 1922, and July 6, 1922, each time signing a report to the bank commissioner, reflecting the condition of the bank; that the excess loans April 7,1922, amounted approximately to $774,000; July 6, 1922, $771,000; that the statements sent to the bank commissioner and the reports of the proceedings of the quarterly meetings of the directors referred to bear his signature as a director of the bank. There was evidence that the bank was examined by a deputy bank examiner in September, 1921. The report which he transmitted to the bank commissioner, which was signed by Mr. Kramer, listed and specifically named excess loans aggregating $820,000. In this statement, the deputy bank examiner made a requirement under the head of “Notice to Officers,” which reads:
“Requirements.
“Second: Excess loans amounting to $820,128.91 are held by your bank in violation of the banking laws. You are hereby notified to reduce said loans to the legal limit within sixty days from the date hereof.
“These excess loans are of long standing and must be reduced to the legal limit. Any that are not within the limit by January 10, 1922, must be charged out of the bank.
“See attached sheet for further requirements, the same being as though written hereon.
“Dated September 17, 1921. By order of the bank commissioner of Kansas.
H. E. Weight, Deputy Bank Commissioner.
C. S. Bowman.
“We acknowledge receipt of the notice to officers and directors, of which the above is a true copy, and we hereby agree to comply with the terms thereof and to notify the bank commissioner when the same has been done.
“C. L. King, President.
“A. B. Ewing, Cashier.
“L. D. Hadley, T. A. Kramer, C. L. King, A. B. Ewing, H. F.
Ferry, Directors.”
Additional requirements made at the same time were:
“Under no condition make further excess loans and do not increase any present excess. Make no transfers of stock until permission is secured from the department. Your draft list is excessive both, as to number of items and as to total.”
The same deputy again examined the bank in January, 1922, and transmitted to the bank commissioner a report signed by Mr. Kramer listing in detail approximately the same excess loans, to the amount of $782,000. This report, acknowledged by Mr. Kramer, contained these statements:
“Seventeen excess loans amounting to $782,585.69 are held by your bank in violation of the banking laws. You are hereby notified to reduce said loans to the legal limit within sixty days from the date hereof.
“Fourth: Your overdrafts are too large, too many, and of too long standing, charge off those of long standing and keep out chronics.
“Fifth: Your Other Real Estate account contains items carried in violation of the law. Attend to this as soon as possible.
“Sixth: Your loans are short. Put in balance as soon as possible.
“Ninth: Your Other Bonds 'account contains items that "are not legal investments for a state bank. Correct this.
“We hereby acknowledge receipt of the notice to officers and directors of which the above is a true copy, and we do hereby agree to comply with the terms thereof and to notify the bank commissioner when the same has been ^one'
“C. L. King, President.
“H. F. Ferry, Cashier,
“L. D. Hadley, C. L. King, H. F. Ferry, A. B. Ewing,
T. A. Kramer, Directors.”
The evidence indicates clearly that Mr. Kramer was personally familiar with the condition of the bank from the first of the year, 1921, to the time he attended the last meeting of the board of directors in July, 1922. It is admitted that when he left El Dorado some days thereafter on his eastern trip, he knew the condition of the bank. The same condition was reflected when the bank was closed March 30, 1923. It had not changed. The same overdrafts were there; the same unpaid notes; the same excess loans. Mr. Kramer had for years been attorney for the bank. He was reputed a lawyer of marked ability. He must have known the condition of the bank during all of the time mentioned, and it may be observed in passing that because of his marked ability and general reputation his responsibility was the greater. Depositors, no doubt, had greater confidence in the bank because of his being a director. But it is argued that, “from the date he was stricken in Boston in August, 1922, until the date of his death, in July, 1923, he was incapacitated and by reason of his physical and mental disability unable to make any examination into the affairs of the bank or to pay any attention to its affairs.” Two things appear clear. The bank’s condition had not changed, and it is apparent that he did keep in touch with its affairs, because on January 20,1923, two months before the bank was closed, he signed the oath of the director, placed in the proper blank in his own handwriting his street address and post-office address, swore to it before a notary public and sent it to the bank commissioner. It was filed in the bank commissioner’s office only thirteen days later than the oath of his codirectors who had been elected at the same meeting.
The evidence shows no substantial change in the bank’s condition from the time Mr. Kramer left El Dorado until the time the bank closed. It is not unreasonable to conclude from the evidence that the bank was insolvent when he left in July, 1922; insolvent when he again took oath as director in January following, and insolvent when it closed at the end of March. He must have known the bank was insolvent when he took the oath as director in January, 1923. He knew' that it was being kept open all of this time and that deposits were being received. There was evidence that the bank’s condition was sufficiently serious in 1921 that the levy of an assessment of 50 per cent on the stockholders was required within ten days after an examination by the banking department. The reports showing the kind and character of the various loans, the security given, the date when the paper was made, the date of its maturity, whether it was of long standing or otherwise, and whether the general indebtedness was of an increasing character, showing when the security was exhausted and applied to the liquidation of the debts and evidence showing that in some cases the receiver was able to collect only fifty per cent of the indebtedness, was all competent as showing the insolvent condition of the bank. The contention that there was no evidence showing that the bank was insolvent or in failing circumstances cannot be sustained.
The jury returned the following special verdict:
“We, the jury empaneled and sworn in the above entitled cause, do upon our oath find for the defendant, C. L. Harris, executor of the estate of T. A. Kramer, deceased, not liable on account of said T. A. Kramer being physically unfit to know the conditions of The Butler County State Bank at the time the deposits were made by the plaintiff that are now in controversy.”
It is contended by the plaintiffs that this verdict was induced by the attitude of the court and the instructions given. The instructions complained of read:
4-A.
“This defendant further alleges that on the --- day of August, 1918, the said T. A. Kramer, while living in the state of California, was taken sick and compelled to undergo a severe surgical operation, from which he never fully recovered; that on the - day of May, 1920, he returned to El Dorado, Kansas, where he again underwent a serious abdominal operation, on account of which he was unable to attend to any business and from which he never fully recovered; that about the 10th day of July, 1922, he left El Dorado for the purpose of rest and recuperation, and on August 15, 1922, in the city of Boston, Mass., he was again compelled to undergo a severe operation; that in November, 1922, he was removed to East St. Louis, where in'December another operation was performed on him, and his condition gradually grew worse until the date of his death, July 23, 1923; that from the time of his first operation until the day of his death he was unable to attend to any business of importance; that by reason of his condition, he was unable to return to El Dorado at any time after his operation in Boston on August 16, 1922; that his suffering was so intense and his physical condition of such a character that it was impossible for him to direct his mind for any length of time to any business matter or give any attention to business affiairs; that by reason of these facts and circumstances, it was impossible for him to give any attention to the affairs of The Butler County State Bank, and during all of said period he had no access to the books and records of said bank and was in no condition, physically or mentally, to make any examination of the business or condition of said bank, and it was impossible for him to assent to the acceptance of any deposits in said bank; that during all of said period he was constantly attended by his relatives who, acting under the advice of his physician, kept all business matters from him as far as possible; that it was impossible for him to give any serious attention or consideration to business matters without seriously injuring his health and shortening his life.”
22.
“The defendant Harris, as executor of the estate of T. A. Kramer, deceased, 'interposes the defense that the said Kramer for many months prior to the closing of said bank was absent from Butler county, Kansas, on account of sickness and was unable to return to said county, or to exercise any control over the affairs of the Butler County State Bank, or to in any way examine into its affairs, or control, or direct its management; and in this connection you are instructed that the burden of proof is upon the said defendant to establish this defense by a preponderance of the evidence. That is, the defendant Harris must prove by a preponderance the fact that the said Kramer was, under conditions and .circumstances which he could not control; detained from Butler county, on account of sickness, and was not on account of such sickness able to return to said county, and was not, thereby, able to be present and know as to the condition and management of said bank and to give his assistance and advice in the management and control of the same.”
23.
“You are instructed that if you believe from the evidence in this case that the said T. A. Kramer was at the time said deposits were made, and had been for some time prior thereto, in a condition of health that made it impossible for him, on account of his mental or physical condition, to make an examination into the affairs of said bank, and if you find that he was a director of said bank at the time of the reception of such deposits, then before he can be held liable under the statute for such deposits, it must be shown by a preponderance of the evidence that he had knowledge of the reception of the deposits in question, and with such - knowledge assented to the making of such deposits, and in considering whether such knowledge and assent was had by the said T. A. Kramer, you are not to take into consideration the fact that he failed to make the examination of said The Butler County State Bank as required by law, if you find as a fact that he was at such time unable, because of his physical or mental condition, to make such examinations.”
24.
“And you are instructed that if you believe from the evidence that the said T. A. Kramer was in the condition described in Instruction No. 4-A, above set out, and was by reason of such condition unable to give any attention to the affairs of said The Butler County State Bank, and was in no condition physically or mentally to make any examination into the business or the condition of said bank, then, and in that event, as a matter of law, he would not be required to make any examination and is not chargeable for any failure so to do.”
25.
“You are instructed that if you believe that the said T. A. Kramer was in the condition set out in the Instruction No. 4-A above, and that acting under the advice of his physicians, all matters of business were kept from him, in order that his health might not be injured by attention to such business, then you are instructed that it would not be incumbent upon him to make the examinations required in section 9-163 of the Revised Statutes of 1923, heretobefore quoted, and he could not be held to have given his assent to the reception of such deposits, unless the plaintiff in this case has shown by a preponderance of the evidence that he had actual personal knowledge of the making of the deposits herein and that he actually authorized such deposits to be received or that he actually assented to the reception of such deposits.”
It is perfectly apparent that Mr. Kramer’s illness was neither sudden nor temporary, and that the verdict must have been influenced by the quoted instructions. Mr. Kramer was suffering in 1918 with the same disease that finally caused his death, yet he continued to attend to its business, to accept the privileges, the benefits, the honor and the emoluments of the office of a director.
A director of a bank like the one here under consideration, knowing that it has for years during his directorate carried excess loans of from $650,000 to $820,000, acknowledging time after time that it was operating in violation of law and necessarily knowing that it is insolvent, cannot be heard to say that by reason of his physical condition, he did not know its condition. He knew and necessarily assented to the reception of the deposits and thereby incurred the liability that the statute imposes on him. Briggs v. Spaulding, 141 U. S. 132, 35 L. Ed., 662, is cited and relied on by Harris as sustaining his contention of nonliability. There one officer of the bank was given a leave of absence, went away and died before the expiration of the leave of absence. The court held that it was within the power of the board of directors of the bank to grant a leave of absence, and that the director could not be held liable for the things that occurred in the bank in his absence which caused the insolvency. Two other directors who were newly elected to the board approximately ninety days before the insolvency of the bank, were relieved from responsibility because no different condition existed in the bank at the time it closed than at the time they became members of the board. A vice president and director was relieved from liability, having been elected in May, 1881, and being an invalid at the time of his election and unable to transact business, the bank having closed its doors in the early part of 1882. This case is distinguished in Rankin v. Cooper, 149 Fed. 1011; where it was said:
“The mere fact that a director of a national bank does not attend to his duties by reason of continued ill health or other business engagements does not necessarily relieve him from liability for losses sustained by the bank through the failure of the directors to exercise proper care and supervision over its affairs.” (Syl.)
In the opinion it was stated:
“A special defense is' set up by the executor of Logan H. Roots, deceased, on account of ill health and absence from the city, and in that connection, Briggs v. Spaulding, 141 U. S. 132, 11 Sup. Ct., 924, 35, L. Ed., 662, has been referred to. I think a passing illness, temporary in character, is an excuse for the period it lasts, but, if a person becomes a confirmed invalid for a number of years, and unable to attend to the duties of a director, he has no right to hold on to the position and at the same time decline its corresponding responsibilities. By doing so he invites others to trust the bank on the strength of his name, and in such case he ought to bear his share of the consequences growing out of such a dual situation. This is peculiarly applicable to Colonel Roots because of his high reputation in the community and the great trust that was placed in him as a director, as abundantly appears from the evidence in this case. Nor does it appear from the evidence that Colonel Roots was in fact such an invalid that he could not give any attention to the affairs of the bank. On the contrary, it appears that he attended 46 meetings in 1890; 38 in 1891; 48 in 1892, and 9 in January, 1893. He also in writing indorsed and approved the report of the examining committee of November 25, 1891, signed the letter to the comptroller of January 16, 1892, was reelected and accepted the office of president in January, 1893, and accepted the office of receiver for this bank when it closed. Defendant Blass in his testimony, says:
“ ‘Logan H. Roots attended the board meetings whenever he was in the city. Being an old bank man, he was counseled in all matters of the bank by myself and directors. He had access to the books and papers of the bank at all times as a director.’ ” (p. 1016.)
In construing the statutory liability of directors of national banks, it has been said:
“The statutory liability of directors of national banks as provided in section 5239, is undoubtedly the exclusive rule by which to measure the right to recover damages from directors based upon a loss alleged to have resulted solely from violation by such directors of a duty expressly imposed upon him by provision of the national banking act.” (McCormick v. King, 241 Fed. 737, 743. See, also, Savings Bank v. Wulfekuhler, 19 Kan. 60; Yates v. Jones National Bank, 206 U. S. 158, 27 Sup. Ct. Rep. 638, 51 L. Ed. 1002; Thomas v. Taylor, 224 U. S. 73, 32 Sup. Ct. Rep. 403, 56 L. Ed. 673; Bowerman v. Hamner, as Receiver, 250 U. S. 504, 63 L. Ed. 1113; Williams v. Brady, 221 Fed. 118; Williams v. Brady, 232 Fed. 740; 1 Morse on Banks and Banking, 5 ed. 272.)
Various other questions discussed in the briefs need not be treated at length. The plaintiffs complain of the ruling of the trial court in sustaining a demurrer to the evidence against Mrs. E. F. Adams. Mrs. Adams had previously been a director. On November 16,1920, she ceased to be a stockholder and on January 4, 1921, she was replaced as a director by L. D. Hadley. She was never reelected to the board and held no office in connection with the bank for more than two years before its failure. It was, however, shown that her name was carried as vice president in Rand-McNally’s Bank Directory and the Banker's Registry for July, 1922; that her name also appeared as director in some other directories and on some of the bank’s stationery. The contention is that she held herself out as an officer and director of the bank and is liable therefor. In view of the fact that she was not a director and had not been a stockholder for more than two years, the contention cannot be sustained.
It is contended on the part of the defendant Hadley, that while he discussed the condition of the bank with the other directors, that he did not at any time know the condition of the bank was dangerous and at all times believed that the slow paper would be collected. Mr. Hadley became connected with the bank in 1914 as a bookkeeper. He became a director of the bank in January, 1921, and so remained until its close March 30, 1923. What has heretofore been said necessarily disposes of his contention.
Various other questions raised by the defendants have been given consideration, but we find nothing which would justify a reversal of the judgment against them.
The judgment in favor of C. L. Harris as executor of the estate of T. A. Kramer, deceased, is reversed and remanded with instructions to render judgment for plaintiffs. Otherwise it is affirmed.
Burch, J., dissenting. | [
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|
The opinion of the court was delivered by
Hopkins, J.:
The action was one upon an account stated, and the question involved is whether the plaintiffs produced sufficient evidence to require submission of their case to the jury. A demurrer to the evidence was sustained and plaintiffs appeal.
Plaintiffs’ petition alleged, in substance, that plaintiffs were deal ers in general merchandise, lumber, coal and building materials; that between the 13th day of October, 1919, and the 6th day of September, 1922, plaintiffs at the request of defendant sold and delivered to defendant various items of goods, wares and merchandise of the total value of $334.07, of which an itemized statement was attached, marked “Exhibit A” and made a part thereof; that on October 1, 1922, plaintiffs prepared and rendered to defendant a written statement of plaintiff’s account against defendant for said goods, wares, and merchandise, so sold and delivered, which statement showed a balance due to plaintiff from defendant on said account in the sum of $334.07; that this statement of account, showing the balance due as aforesaid, was on October 1,1922, presented and delivered to defendant; that defendant thereafter examined said account showing said balance, retained said account, stated that said account and said balance were correct, and that he would pay plaintiff the balance shown on said account soon thereafter.
The plaintiffs adduced testimony, among other things, showing that plaintiffs were partners engaged in the mercantile business; that on October 1,1922, defendant was indebted to them in the sum of $334.07; that one of the plaintiffs had a conversation with the defendant in which he asked for an itemized statement of his account; that an itemized statement was mailed to him; that he retained it and made no objection thereto; that on October 1, plaintiff had a conversation with him in .the street opposite plaintiff’s store about the account; that defendant had the statement of account and stated that it was correct; and that he would pay.it. There was other evidence that defendant claimed he did not- get all the goods charged to him, and in effect that there was no agreement to pay.
Was the evidence sufficient to go to the jury, and was it sufficient to establish an account stated?
“An account stated is an agreement, express or implied, between parties who have had previous transactions with each other, fixing and determining the amounts due in respect to such transactions, and, when made, such account stated becomes a new agreement and takes the place of the obligations resting upon either party by reason of the prior account.” (Harrison v. Henderson, 67 Kan. 202, 205, 72 Pac. 878.)
An “account stated” is an acknowledgment of an existing condition of liability of the parties, from which the law implies a promise to pay the balance thus acknowledged to be due. (The State v. Ill. Central R. R. Co., 246 Ill. 188, 241.) It is an agreement between persons who have had previous transactions, fixing the amount due in respect thereto, and a promise to pay the balance. (Borders v. Gay, 6 Ga. App. 734; Allen-West Commission Co. v. Hudgins, 74 Ark. 468.) An “account stated” is an account in writing examined' and accepted by both parties, which acceptance need not be expressed, but may be implied from the circumstances. (Leinbach v. Wolle, 211 Pa. 629, quoting Story’s Equity Jurisprudence § 526.) The acceptance need not be in express terms. (Powell v. Pacific Railroad, 65 Mo. 658.) It may be inferred from retaining the account a sufficient time without making objection. (Freeland v. Heron, 7 Cranch [U. S.] 147, 3 L. Ed. 297; Patillo v. Allen-West Commission Co., 131 Fed. 680.)
“An account stated is an agreement between parties who have had previous transactions of a monetary character, that all the items of the account representing such transactions, and the balance struck, are correct, together with a promise, express or implied, for the payment of such balance.” (1 C. J. 678.)
“The meeting of the minds of the parties upon the correctness of an account stated is usually the result.of a statement of account by one party and an acquiescence therein by the other. The form ,of the acquiescence or assent is, however, immaterial, and may be implied from the conduct of the parties and the circumstances of the case.” (1 C. J. 687.)
“The statement of the account need not be in writing, nor need the agreement, if oral, be based upon writings evidencing transactions between the parties; and it is no objection that a part thereof is in writing and a part oral. So if the account is stated in writing, it is not necessary that it be signed or acknowledged in writing.” (1 C. J. 682.)
“An account may become stated also where the statement of dealings between two persons is made out by one of them and submitted to the other, who acquiesces in its correctness and the same result is brought about where the person to whom an account is rendered subsequently acknowledges receipt of it and promises to pay it.”' (1 C. J. 688.)
In the instant case there was evidence showing that on October .1, 1922, the defendant was indebted to plaintiff for $334; that plaintiff at defendant’s request gave defendant a statement of the account; that defendant kept the statement, and did not object to the account or the balance shown by the statement; that plaintiff and defendant had a conversation in the street of Bushong at a time when defendant had this itemized statement; that defendant stated to plaintiff that the balance due on the account was correct and that he would pay it. The agreement was definite as to the amount due, the correctness of the account, and that payment would be made.
“The facts show all of the essential elements of a stated account — a meeting of the minds of the parties upon the correctness of the account, and when this is shown the law implies an agreement to pay.” (Dolman & Son v. Construction Co., 103 Kan. 635, 638, 176 Pac. 145. See, also, Clark v. Mar bourg, 33 Kan. 471, 6 Pac. 548, and note on “Account stated between principal and factor,” 3 A. L. R. 293.)
It is true that there was conflicting evidence. The court should not have considered the conflict. If the favorable evidence, together with the logical inferences to be drawn therefrom, established an account stated the court should have overruled the demurrer and submitted the case to the jury.
It is error for a trial court to sustain a demurrer to the evidence because there is a conflict between plaintiff’s testimony in chief and that given upon cross-examination. The court cannot weigh the evidence. If there is any evidence whatever to support plaintiff’s case, it must be left to the jury to decide its weight and credibility. [Acker v. Norman, 72 Kan. 586, 84 Pac. 531; Rowen v. Rosenthal, 113 Kan. 604, 215 Pac. 1008. See, also, Can Co. v. Ross, 72 Kan. 669, 83 Pac. 616; Travis v. Simpson, 106 Kan. 323, 187 Pac. 684; Rosenfeld Co. v. Gleed, 110 Kan. 75, 202 Pac. 611.)
The judgment is reversed and the cause remanded with instructions to grant a new trial. | [
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102,
3,
49,
-21,
-104,
-104,
38,
122,
-97,
-90,
-112,
88,
-117,
44,
-66,
-99,
124,
16,
38,
118,
-8,
93,
29,
108,
7,
-113,
-74,
-94,
-113,
118,
-97,
11,
-53,
-109,
-112,
97,
-50,
2,
92,
71,
56,
-109,
-98,
-40
]
|
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