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The opinion of the court was delivered by
Brewer, J.:
This case was tried by. the court, without a jury, and special findings of fact were made. We might fairly dismiss this proceeding in -error, as the record contains no judgment, but stops with the motion for a new trial. But as this may be only an oversight in the preparation of the record, we have examined the findings to see what judgment should properly have been entered thereon. The testimony not having been preserved, our inquiry is limited to the pleadings and findings, and upon them we think judgment ought to have been entered as the petition in error says it was, in favor of the defendant in error,, plaintiff below.
The facts are, that Griffin at one time'settled 'upon and occupied a certain tract of land, upon which he made some improvements. These improvements, together with some other personal property, he sold to one Mayo, and delivered to him the possession. The value of the improvements and of the other property separately does not appear, but for all the property in gross Mayo paid $200 e'ash, and promised to pay $500 more. This $500 Mayo has never paid. Mayo entered into possession,' made additional improvements, neither the extent nor value of which is shown, and then sold and delivered the possession to Sheffield.. After Sheffield took possession, he made further improvements to the amount in value of $100. This was more than the rental value of the premises while in Sheffield’s possession, but how much more is not shown. During all this time the title to the land was in the Missouri River, Eort Scott & Gulf railroad company, and the improvements were made without any right or authority from it. Subsequently, Griffin bought the land from the company, and commenced this action to recover the possession. The ' right ■ to possession, prima fade, follows the title, and the railroad company could, for anything appearing to the contrary, at any time during all these years of occupancy by Griffin, Mayo, and Sheffield, have established its right to the possession. The various occupants were simply trespassers, and could have been ejected whenever the company saw fit to assert its claims. Griffin, purchasing from the company, purchased its rights to the possession, and this right he could assert unless by his previous conduct he had estopped himself therefrom. If he had warranted the title, his after-acquired title would inure to the benefit of his grantee’; but it does not appear that he even made a deed when he sold the improvements to Mayo, much less that he gave any warranty. A mere sale of improvements on land by a trespasser thereon does not estop such trespasser from subsequently acquiring title and recovering the possession of the land. Whether his vendee could remove the improvements, or recover the money paid for them, or would lose them entirely, we need not now consider. Doubtless his rights would be affected by many considerations, such as the character of the improvements, knowledge of the title, representations of the vendor, etc., none of which matters are noticed in the findings. All that does appear is, that there was a sale of certain improvements, and this of itself does not estop the vendor from subsequently acquiring the title to the realty, and recovering the possession thereof. •
The judgment will be affirmed.
All the Justices cbncurring. | [
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Lorentz, J.:
Cori Wecker appeals from a verdict in favor of Douglas J. Amend, M.D., in her action alleging negligence by Amend for his failure to properly obtain her informed consent before performing laser surgery on her cervix.
Amend was Wecker s gynecologist and obstetrician. During a prenatal exam, Wecker’s pap smear showed abnormal cells on the cervix. After the birth of the baby, Amend performed a biopsy of the cervix, which revealed a condyloma, or wart, caused by human papilloma virus (HPV). Amend explained to Wecker that the condyloma might be precancerous and recommended laser surgery to remove it.
Amend showed Wecker a video tape regarding laser surgery. Contained within the tape was the statement, “Laser surgery involves the same risks as with any surgical procedure. There is a small risk of excessive bleeding and possible infection, but those cases are not common and can be treated.” Following the laser surgery, Wecker suffered excessive bleeding, and Amend eventually performed a total hysterectomy to control the bleeding. Wecker later underwent further surgeries and injections to control her pain.
In her lawsuit, Wecker complains that Amend did not obtain her informed consent in that he failed to inform her of alternative treatments, including the option of no treatment at all. At trial, Wecker called an expert witness, Dr. William Cameron, who testified that it would have been reasonable in this case to forego treatment and see if the wart would disappear. He further testified that in most cases, the wart would disappear without treatment. He also testified that it was a departure from the accepted standard of medical care to give the patient only one option — laser surgery — and fail to advise her of the option of doing nothing. Wecker also proffered testimony that she would not have undergone the laser surgery had she known that doing nothing was a medically acceptable alternative.
Amend presented evidence that HPV is a carcinogen which can cause cervical cancer, while the herpes simplex virus is a cocarcinogen. In other words, HPV and herpes may work together in causing cervical cancer. Wecker suffered from both herpes and HPV.
Amend’s expert witnesses testified that laser surgery was indicated in Wecker’s situation and that the option of no treatment would not have been in her best interest. The same witnesses also testified that a variety of methods are available to treat a condyloma.
Wecker first argues that the trial court failed to properly instruct the jury on her theory of lack of informed consent.
The trial court has a duty to instruct the jury regarding the applicable law and plaintiff’s theory of the case where that theoiy is supported by sufficient evidence. Natanson v. Kline, 186 Kan. 393, 412, 350 P.2d 1093, reh. denied 187 Kan. 186, 354 P.2d 670 (1960).
Here, Wecker requested and the trial court gave the following instruction regarding her theory of the case:
“The plaintiff Cori Wecker alleges that the defendant Douglas Amend, M.D., was negligent and that the defendant’s negligence caused or contributed to damages that she sustained. The plaintiff alleges she did not give her informed consent to the laser surgery performed on June 12, 1991, in that the defendant did not:
(a) provide her with reasonable knowledge of the nature of the procedure and understanding of the risks involved, and the possible results to be anticipated; or
(b) provide her with the knowledge of alternative treatments; or
(c) provide her with the knowledge that she could choose not to undergo any procedure or treatment.
“BURDEN OF PROOF — PLAINTIFF’S CLAIMS
“The plaintiff has the burden to prove that it is more probably true than not true that the defendant was negligent in at least one of the above respects, and that the defendant’s negligence caused or contributed to damages sustained by the plaintiff.”
Wecker also requested that the trial court give the following modified version of PIK Civ. 2d 15.16 regarding informed consent:
“A physician has a duty to make a reasonable disclosure to his patient of the character of the patient’s ailment, the nature and probable consequences of the suggested or recommended treatment including the dangers within his knowledge which are possible in the treatment he proposes, the options or hazards of failing to or choosing not to undergo any treatment or procedure at all, and the types and risks of alternative methods of treatment.
“This disclosure is required in order that the patient will have a basis to make an intelligent informed consent to the proposed treatment. The duty of the physician to disclose is limited to those disclosures which a physician would reasonably make under the same or similar circumstances.” (Modifications to PIK Civ. 2d 15.16 in italics.)
The trial court gave the instruction without the italicized language. The trial court also instructed the jury as provided in PIK Civ. 2d 15.15:
“A physician may not perform any surgical operation on a patient without the informed consent of the patient.
“Consent by a patient to be sufficient for the purpose of authorizing a particular procedure must be an informed consent. By informed consent is meant that the patient must have reasonable knowledge of the nature of the procedure and understanding of the risks involved, and the possible results to be anticipated.”
Wecker argues that it was prejudicial error for the trial court to give PIK Civ. 2d 15.16 without her proposed modifications because the instruction did not fully state the doctrine of informed consent as it applied to her theory of Amend’s negligence. Wecker concedes that Kansas courts have never directly addressed the issue of whether a physician has a duty to advise a patient of alternative treatments or the option of refusing treatment. However, Wecker contends that Kansas courts have also not limited a physician’s duty to informing a patient only of the risks of the particular treatment suggested by the treating physician.
Amend counters with the argument that in Kansas the doctrine of informed consent does not require a physician to inform a patient of all possible alternative treatments, including the option of no treatment. Amend argues that to hold otherwise would be to ignore Kansas law and to expand the doctrine of informed consent beyond the parameters designated by the Kansas Supreme Court.
The comment following PIK Civ. 2d 15.16 explains that the instruction is based upon the doctrine of informed consent as established in a line of cases beginning with Natanson. The Natanson court quoted with approval the following rule: “ ‘A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment.’ ” 186 Kan. at 407 (quoting Salgo v. Leland Stanford, Etc., Bd. Trustees, 154 Cal. App. 2d 560, 317 P.2d 170 [1957]).
The court further explained:
“This rule in effect compels disclosure by the physician in order to assure that an informed consent of the patient is obtained. The duty of the physician to disclose, however, is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances. How the physician may best discharge his obligation to the patient in this difficult situation involves primarily a question of medical judgment. So long as the disclosure is sufficient to assure an informed consent, the physician’s choice of plausible courses should not be called into question if it appears, all circumstances considered, that the physician was motivated only by the patient’s best therapeutic interests and he proceeded as competent medical men would have done in a similar situation.” Natanson, 186 Kan. 409-10.
Later cases have further clarified the doctrine of informed consent In Yeates v. Harms, 193 Kan. 320, 333, 393 P.2d 982 (1964), the Supreme Court ruled that a physician has no duly to inform a patient of “infinitesimal, imaginative, or speculative” risks. Furthermore, “[w]hat is a reasonable disclosure upon which an informed consent may rest depends upon the facts and circumstances of each case.” Tatro v. Lueken, 212 Kan. 606, Syl. ¶ 4, 512 P.2d 529 (1973).
No Kansas case directly holds that a physician must inform a patient of the option of choosing no treatment at all. However, in situations where no treatment at all is a reasonable medically acceptable option, common sense dictates that such information constitutes a fact “ ‘which [is] necessary to form the basis of an intelligent consent by the patient to the proposed treatment.’ ” Natanson, 186 Kan. at 407. In other words, how can a patient give an informed consent to treatment for a condition if the patient is not informed that the condition might resolve itself without any treatment at all?
Wecker cites various out-of-state cases in support of her argument that a physician has a duty to inform a patient of alternative treatments and the option of no treatment. Wecker’s argument is also supported by a text from Am. Jur. 2d quoted with approval by the Tatro court in its discussion of disclosure and informed consent. That text provides:
“The plaintiff-patient must prove the following elements to establish a case of physician negligence in failing to impart information so treatment could be chosen intelligently: (1) The defendant-doctor failed to inform the plaintiff-patient of alternative treatments, the reasonably foreseeable material risks of each alternative, and of no treatment at all. (2) The plaintiff-patient would have chosen no treatment or a different course of treatment had the alternatives and the material risks of each been made known. (3) The plaintiff has been injured as a result of submitting to the treatment.” 61 Am. Jur. 2d, Physicians, Surgeons, Etc., § 199.
■ Where, as here, a plaintiff presents evidence that doing nothing — or merely watching a medical-condition to see if it goes away on its own — is a medically acceptable alternative, and the plaintiff presents evidence that the defendant’s failure to advise her of the option of doing nothing was a deviation from the accepted standard of medical care, the trial court should instruct the jury that a physician has a duty to advise a patient of the option of choosing no treatment at all. Where there is evidence that alternative treatments are available, the court should also instruct the jury that a physician has a duty to advise a patient of alternative treatments.
While Amend presented evidence that doing nothing was not a medically acceptable alternative, that fact does not change the analysis. The question of whether doing nothing was a medically acceptable alternative was one for the jury to decide, and the jury needed proper instructions to do so.
PIK Civ. 2d 15.16 is an accurate statement of the law, as far as it goes; however, it does not include language indicating that a physician has a duty to advise a patient of alternative treatments, including the option of no treatment, where that option is a medically acceptable alternative.
“The pattern jury instructions for Kansas (PIK) have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.” State v. Whitaker, 255 Kan. 118, Syl ¶ 1, 872 P.2d 278 (1994).
On the facts of this case, it was prejudicial error for the trial court not to include the requested modifications to the jury instruction on informed consent.
. Wecker argues that the giving of instruction 14 was error and that the instructions as a whole were inconsistent. Instruction 14 was based upon PIK Civ. 2d 15.11 and read as follows:
“Where, under the usual practice of the profession of the defendant, Dr. Douglas Amend, different courses of treatment are available which might reasonably be used, the physician has a right to use his best judgment in the selection of the choice of treatment.
“However, the selection must be consistent with the skill and care which other physicians practicing in the same field in the same or similar community would use in similar circumstances.”
We agree that it was error for the trial court to give the instruction but not for the reasons advanced by Wecker.
Wecker contends that the instruction does not accurately reflect the law in Kansas because it states that a physician has a right, rather than a duty, to use his or her best judgment in selecting treatment and that a literal reading of the instruction indicates the patient has no right to select the treatment.
The real problem with the instruction is that the facts of this case do not put into issue the question whether Amend properly selected between two or more courses of treatment. The evidence was that only one treatment — the laser surgery— was ever suggested to Wecker. The real issue, therefore, is whether Wecker was properly informed of her options sufficient to allow her to give an informed consent to a course of treatment.
We have already held that the trial court erred in failing to properly inform the jury on informed consent. It was also error for the court to give instruction 14 as it is not supported by the evidence.
We need go no further regarding the issue of inconsistent instructions as it is now moot.
Wecker’s next argument is that the trial court erred in excluding her testimony that she would not have undergone laser surgery had she known that doing nothing was a medically acceptable alternative.
During direct examination of Wecker, her counsel asked, “If you had been told by Dr. Amend before this laser surgery that you had an alternative and that one alternative was to do nothing, that is to sit back and wait and watch the condyloma, what would you have done?” Amend objected on the grounds of relevancy and materiality and that it is “not an issue of informed consent.” The trial court sustained the objection.
Wecker then proffered testimony that she would not have undergone the laser surgery had she known that doing nothing was an alternative. Wecker argues that the trial court erred in not allowing the jury to hear the proffered testimony because it went to prove causation, a necessary element of her case.
“Whether a patient would have refused treatment or a medical procedure had the physician made adequate disclosure is to be determined objectively. If adequate disclosure could reasonably be expected to have caused the patient to decline the treatment or procedure because of revelation of the kind of risk or danger which resulted in her harm, causation is shown but otherwise not, and the patient’s testimony is relevant on such issue, but should not be controlling.” (Emphasis added.) Funke v. Fieldman, 212 Kan. 524, 537, 512 P.2d 539 (1973).
Here, it is not the failure to disclose the risks of the procedure but the failure to disclose the option of no treatment that is at issue. However, we hold the same analysis should apply. Wecker was still required to show causation — that a reasonable person would not have undergone the laser surgery had he or she known that doing nothing was a medically acceptable alternative. Plaintiff’s testimony on that point, while not controlling, was relevant and should have been admitted.
Finally, Wecker argues it was error for the trial court to exclude Dr. Weed’s testimony that the laser surgery had caused all of her subsequent medical problems.
As part of Wecker’s case in chief, portions of the deposition of Dr. Weed, one of Amend’s expert witnesses, was read into evidence. During the reading of the deposition, Amend objected to the following question as being leading and without foundation: “Everything in the records that you read of her treatment and things that happened to her after the laser surgery were all as a result of the laser surgery and the subsequent bleeding episode?” The objection was sustained without explanation. Wecker argues that it was error to sustain the objection on either ground raised by Amend.
K.S.A. 60-232(d)(3)(B) provides:
“Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, . . . and errors of any kind which might be obviated, removed or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.”
Amend did not object to the question as leading during the deposition; therefore, he waived any such objection at trial.
Regarding foundation, Wecker argues that Dr. Weed testified that he was qualified, had read her medical records, and had an opinion to a reasonable medical probability. Accordingly, Wecker had provided proper foundation.
Amend does not explain why the trial court’s ruling was correct; however, he argues that if the court erred, the error was harmless. He further argues that Wecker had the opportunity to cross-examine Dr. Weed during the trial and, therefore, could have taken curative measures during the course of the trial and should not now be allowed to claim error.
The trial court did not explain its reasons for sustaining Amend’s objection, and Amend has offered no justification on appeal for the court’s ruling. Wecker has demonstrated that she laid an adequate foundation for the question. The trial court erred in sustaining the objection.
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Prager, C.J.:
Michael Gooden was convicted by a jury of one count of involuntary manslaughter, K.S.A. 1993 Supp. 21-3404. Gooden appeals, contending that he was deprived of his Fifth Amendment right against self-incrimination when statements made by him to law enforcement officers, prior to the giving of Miranda warnings but after he had been deprived of his freedom in a significant way, were used against him at his trial.
The facts in this case are not greatly in dispute. On November 6, 1993, Gooden, David Richey, and Bryan Perkins were in the kitchen of Gooden’s Topeka home. According to Gooden, Richey was playing with a knife, and Gooden was playing with a pistol. Gooden accidently shot and killed Richey. Gooden told Perkins to call for help while he performed CPR on Richey. Perkins called for assistance, and police officers and emergency medical crews arrived at the scene. Officer White of the Topeka Police Department and Gooden proceeded to the living room, where White asked Gooden what happened. Gooden said he was coming downstairs when he heard gunfire. White then talked to Perkins, who said that Richey had been shot outside during a drive-by shooting. White then returned to the living room and asked Gooden for the truth. This time, Gooden said he was in the kitchen when he heard gunfire and that he went outside and helped Perkins carry Richey inside. Because of the chaos and commotion downstairs, White asked Gooden if they could go upstairs, and Gooden agreed.
White and Gooden went to an upstairs bedroom to talk. When White went back downstairs to get a tape recorder, he was informed that blood spatters in the kitchen indicated the shooting occurred in the kitchen. White returned to the bedroom and, without Gooden’s knowledge, tape-recorded the interview. Gooden told White that Richey may have been the victim of a gang-related drive-by shooting that was probably intended for Gooden. White told Gooden that no shooting had taken place outside. Gooden said he wanted to go outside and talk. White said, “No.” Gooden clarified that he did not intend to run but only wanted to get some fresh air. White said he did not want to talk outside because there were too many people there and that it was too cold. Gooden responded, “That’s true.” Gooden stood up, and White asked him to sit down.
As White persisted for the truth, Gooden changed his story again. This time, Gooden claimed he was checking on his daughter in the living room when he heard men’s voices coming from the kitchen; the men were looking for Gooden, and he then said he heard gunfire. As the interview continued, White insisted Gooden reveal who did the shooting. Gooden then changed his story and said a man named Ronald Bell had accidentally shot Richey while the two men were playing around with a knife and a gun. White testified Gooden agreed to go to the police station and talk with detectives.
The police took Gooden and Perkins to the police station, where a videotaped interrogation took place. Gooden told them that Ronald Bell had accidently shot Richey. Most of the questions were directed toward the identification and location of Bell, and Gooden was shown photographs in an attempt to identify Bell. The detectives never told Gooden that he was a suspect or that he was in custody or under arrest. They never said he could not leave. They never raised their voices, swore, or threatened Gooden in any way. Gooden never indicated any unwillingness to answer questions.
The detectives then interviewed Perkins, who changed his story and said that Gooden had accidentally shot Richey. At this point, the detectives brought Gooden back into the interrogation room and immediately informed him of his Miranda rights. Gooden acknowledged those rights and voluntarily waived them. Gooden then admitted he was the person who shot Richey.
The sole issue raised on appeal is whether Gooden was deprived of his Fifth Amendment right against self-incrimination when the statements made by him to the law enforcement officers prior to the giving of Miranda warnings were used against him at the trial.
When challenging a trial court’s decision which refuses to suppress statements for violation of a defendant’s Miranda rights, the standard of review is whether the trial court’s decision is supported by substantial evidence. If so, an appellate court will not substitute its view of the evidence for that of the trial court. State v. Fritschen, 247 Kan. 592, 597, 802 P.2d 558 (1990). Substantial evidence is evidence that possesses both relevance and substance and that furnishes a substantial basis of fact from which the issues can reason ably be resolved. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. State v. Grissom, 251 Kan. 851, 907, 840 P.2d 1142 (1992).
The resolution of this issue requires consideration of Officer White’s questioning of Gooden at the scene of the shooting, Good-en’s home, and Detectives Young and Wywadis’ questioning at the police station, and whether such questioning was custodial in nature. In Miranda v. Arizona, 384 U.S. 436, 478, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), the United States Supreme Court held that when an individual is taken into custody or otherwise deprived of his or her freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is seriously jeopardized. The Miranda decision recognizes that general on-the-scene questioning of citizens in the fact-finding process does not constitute custodial interrogation requiring advice of rights. 384 U.S. at 477.
In this case, it is undisputed that White did not inform Gooden of his Miranda rights before questioning him at the scene of the crime. Thus, the basic issue is whether White subjected Gooden to a custodial interrogation. If the questioning was custodial, the district court erred in admitting Gooden’s statements at the trial.
“Custodial interrogation” is defined as “ ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” State v. Benoit, 21 Kan. App. 2d 184, 189, 898 P.2d 653 (1995) (quoting Miranda v. Arizona, 384 U.S. at 444). In contrast, an investigatory interrogation is the questioning of a person by a law enforcement officer in a routine manner in an investigation that has not reached the accusatory stage and where such person is not in legal custody or deprived of his or her freedom in any significant way. State v. Jones, 246 Kan. 214, 216, 787 P.2d 726 (1990). The Supreme Court made it clear in Miranda that the decision was “not intended to hamper the traditional function of police officers in investigating crime. . . . General on-the-scene questioning as to facts surrounding a crime or other general ques tioning of citizens in the fact-finding process is not affected by our holding.” 384 U.S. at 477.
In State v. Carson, 216 Kan. 711, 715, 533 P.2d 1342 (1975), the Kansas Supreme Court outlined five factors that a court may consider in deciding whether a particular interrogation is custodial: (1) the nature of the interrogator; (2) the nature of the suspect; (3) the time and place of the interrogation; (4) the nature of the interrogation; and (5) the progress of the interrogation. The court, however, later disapproved the second factor because of its subjective nature. State v. Fritschen, 247 Kan. at 601-03. It is also noted that a trial court is not required to follow any hard and fast factors; the importance of each factor varies among the differing cases. 247 Kan. at 603. These principles were applied in State v. Benoit, 21 Kan. App. 2d at 196.
In the case before us, Gooden contends that White’s questioning of him in the upstairs bedroom constituted a custodial interrogation. In determining the validity of this contention, we should consider the relevant factors set forth in State v. Carson, 216 Kan. at 715. First, White was a uniformed officer who responded to Perkins’ call for assistance at the scene of the shooting. There was no evidence that White was an interrogation specialist dispatched to the scene in order to elicit a confession from Gooden. Instead, the evidence is clear that White was engaged in a general on-the-scene questioning as to the facts surrounding the shooting of Richey. He interviewed Gooden as a person who was on the premises when the shooting occurred. At that point, Gooden was being questioned in the fact-finding process.
The time and place of the questioning are important. It occurred immediately after the shooting in Gooden’s own house. The surroundings were familiar to Gooden. The fact that much of the interview occurred in an upstairs bedroom is not important. There is no evidence that the bedroom door was locked or even closed. They went upstairs to avoid the commotion in the kitchen area.
The nature of the investigation is very important. The undisputed evidence showed that the questioning was part of an on-the-scene investigation into the facts of the crime. Gooden’s interview lasted approximately 30 minutes, and White was concerned with obtaining a truthful account of what Gooden witnessed. It is true that at one point Gooden stood up and reached into a closet. White apparently pulled out his gun and told Gooden to sit down. White told Gooden to sit down because he was making him nervous. White then went out and retrieved a cigarette for Gooden. Otherwise, there was no evidence presented that White raised his voice at, swore at, or threatened Gooden. White never told Gooden he was a suspect, that he was in custody, or that he was under arrest. Gooden never told White that he did not want to talk. The fact that White tape-recorded the interview without Gooden’s knowledge is irrelevant.
The final factor is the nature of the investigation at the time of the questioning. The police knew that Gooden had lied when he said the shooting occurred outside the house. However, there was no indication that it was Gooden who had fired the gun. The investigation had not reached an accusatory stage.
We have considered the evidentiary record and have concluded that there was substantial competent evidence to support the trial court’s decision that the interrogation of Gooden by White at the scene of the shooting was not a custodial interrogation and, therefore, Gooden was not deprived of his Fifth Amendment right against self-incrimination at the scene of the shooting.
Gooden also contends that the pr e-Miranda questioning by Detectives Wywadis and Young at the police station constituted a custodial interrogation. Again, the proper test is whether a reasonable person in the suspect’s position would have believed that he or she was in custody.
White testified that Gooden agreed to go to the police station to talk to detectives. At the station, Wywadis and Young conducted the videotaped interrogation. At the beginning, Gooden asked if he could go home because he was tired. Young told him there was no problem with that and they just needed to talk and see what he remembered had happened. Gooden said, “All right,” and “Okay, that’s fine.” Young said, “You have any problem with that?” Gooden replied, “No.” The detectives never told Gooden he was a suspect or that he was in custody or under arrest. They never said he could not leave. They never raised their voices at, swore at, or threatened Gooden in any way. Gooden never indicated an unwillingness to answer questions. The focus of the interrogation was identifying and locating Ronald Bell, who Gooden had stated was the person who had accidentally shot Richey while the two men were playing around with a knife and gun. The detectives had Gooden examine photographs to see if he could identify Bell.
Next, the detectives interviewed Perkins, who finally told the truth and told them that Gooden had accidentally shot Richey. At that point, Gooden became the prime suspect, and the case had reached the accusatory stage. The detectives brought Gooden back into the interrogation room and immediately informed him of his Miranda rights. Gooden then acknowledged those rights, voluntarily waived them, and then confessed to being the person who shot Richey. At the trial, Gooden testified that he had unintentionally shot Richey.
In view of this evidence, we hold that the trial court did not commit error in overruling Gooden’s objection to the admission of his statements made at the interrogation at the police station.
We further hold that even if the trial court erred in holding the interrogation was not custodial in nature, any error in admitting the statements is harmless. Prior to receiving the Miranda warnings, Gooden did not confess to committing the crime. He only confessed to the crime after he had been advised of and had voluntarily waived his Miranda rights. Thus, the only potentially ex-cludable statements were the several false versions of events given by Gooden. At the trial, Gooden testified that he had unintentionally shot Richey in the kitchen. Gooden was convicted of involuntary manslaughter. To prove that crime, the prosecution had to prove that Gooden unintentionally killed Richey in a reckless manner. Gooden’s recklessness stemmed from his waving a loaded gun in Richey’s face. If the district court erred, the error was harmless.
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Brazil, C.J.:
James Tolliver pled guilty to burglary. At sentencing, the parties agreed with the presentence investigation (PSI) report’s statement that Tolliver had no criminal history, and Tolliver received 24 months’ probation pursuant to the presumption for a 7-1 offense. Three weeks after sentencing, the State moved to set aside Tolliver’s sentence as illegal, alleging Tolliver actually possessed a lengthy criminal history and was on parole when the burglary offense was committed. At a hearing on the motion, the State further claimed Tolliver had failed to advise the court services officer during the presentence investigation of his correct criminal history. A supplemental PSI report was introduced at the hearing which showed Tolliver’s criminal history classification as category B. The court resentenced Tolliver pursuant to grid block 7-B and imposed a sentence of 31 months’ imprisonment and ordered the sentence to run consecutive to the sentence for which Tolliver was on parole when the burglary was committed. Tolliver appeals, arguing the court erred in granting the State’s motion to correct an illegal sentence. We vacate the second sentence and remand with directions to reinstate the original sentence.
Tolliver argues that the original sentence imposed by the court was not illegal and that the Kansas Sentencing Guidelines Act (KSGA) places no affirmative duty upon a defendant to discuss his or her criminal history with a presentence investigator. The State counters that Tolliver went beyond mere nondisclosure by affirmatively misleading the State concerning his criminal history.
The issue presented requires this court to determine whether Tolliver’s original sentence was illegal as a matter of law. If it was not illegal, then the trial court erred in resentencing Tolliver. This issue also requires interpretation of the KSGA to determine the extent of the State’s burden to prove criminal history at the time of sentencing and a defendant’s obligation, if any, to either come forward at sentencing with information concerning criminal history or refrain from misrepresenting criminal history. On these questions of law, this court’s scope of review is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
Tolliver first challenges the State’s position, apparently accepted by the trial court, that Tolliver’s original sentence was illegal. Our Supreme Court has defined an illegal sentence as follows:
“An ‘illegal sentence’ is either a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provisions, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served.” State v. Thomas, 239 Kan. 457, 460, 720 P.2d 1059 (1986).
It is not clear which of these bases was relied upon by the trial court when it granted the State’s motion to correct Tolliver’s sentence. The State’s position on appeal is that, because Tolliver’s criminal history classification was actually a category B, the court lacked authority to sentence him other than in accordance with grid block 7-B, absent a departure sentence. The State’s argument, therefore, seems to suggest either that the court lacked jurisdiction to impose the sentence it imposed or that the sentence imposed failed to conform to the statutory punishment authorized for an offender under grid block 7-B.
For support, the State cites cases where a court has revoked a defendant’s probation based upon the defendant’s past criminal conduct which was unknown at sentencing, particularly Andrews v. State, 11 Kan. App. 2d 322, 720 P.2d 227 (1986). In that case, after Andrews pled no contest to a charge of felony theft, the court sentenced him to 1 to 5 years’ imprisonment but granted him 2 years’ probation in lieu of incarceration. A few days after he was released on probation, the court learned Andrews had been convicted of several crimes in other jurisdictions. A bench warrant was issued and Andrews again was brought before the sentencing court. Without finding a probation violation, the court revoked Andrews’ probation and resentenced him to 2 to 10 years’ imprisonment on the theft conviction. After serving several years of his sentence, Andrews filed a motion under K.S.A. 60-1507 seeking vacation of the court’s second sentence.
On appeal, this court upheld the summary revocation of Andrews’ probation based upon Andrews’ misrepresentation to a court services officer and to the sentencing court that “he had never been in trouble before.” 11 Kan. App. 2d 322. The court had specifically relied upon these misrepresentations in originally granting Andrews probation. 11 Kan. App. 2d at 324. However, this court further held that Andrews’ 2- to 10-year sentence had to be vacated because the court was not authorized to impose a new, increased sentence upon revocation of Andrews’ probation. In doing so the court stated that Andrews “was originally given a lawful sentence and the court had no authority to set this sentence aside once it was put into execution.” 11 Kan. App. 2d at 325.
The State attempts to distinguish the second part of the Andrews holding by asserting that, in Andrews, the original 1- to 5-year sentence imposed by the sentencing court was a legally authorized punishment for the crime committed, while in the present case the court’s original 12-month sentence was not a legally authorized punishment for an offender under grid block 7-B. The State’s mischaracterization of Tolliver’s grid block at the original sentencing, however, strikes at the heart of the matter. At the original sentencing, Tolliver’s grid block, as agreed upon by both parties, was 7-1. A 12-month imprisonment sentence, with 24 months’ probation in lieu of incarceration, is a presumptively correct sentence for an offender under grid block 7-1. See K.S.A. 21-4611(c); K.S.A. 21-4704(a).
Contrary to the State’s reading, therefore, Andrews actually supports Tolliver’s position. However, preguidelines cases are inherently difficult to apply to issues of criminal history under the KSGA because of the current heightened emphasis upon an accurate criminal history.
Several Kansas cases have considered the illegal sentence doctrine within the context of the KSGA, although none has addressed the specific issue raised in the present case. See State v. LaGrange, 21 Kan. App. 2d 477, 484, 901 P.2d 44, rev. denied 258 Kan. 861 (1995) (appellate court had jurisdiction to consider'appeal from possible illegal sentence where defendant argued trial court operated under mistaken belief it had no discretion not to impose consecutive sentences); State v. Webb, 20 Kan. App. 2d 873, 874, 893 P.2d 255 (1995) (appellate court had jurisdiction to consider appeal from possible illegal sentence where State argued trial court applied incorrect sentencing law); State v. Bowen, 20 Kan. App. 2d 576, 890 P.2d 374 (1995) (appellate court had jurisdiction to consider appeal from possible illegal sentence where defendant argued Department of Corrections misapplied the KSGA provisions for consecutive sentences on defendant’s sentencing guidelines report).
To support his argument that his original sentence was not illegal, Tolliver cites a Minnesota case, State v. Rock, 380 N.W.2d 211 (Minn. App. 1986). Minnesota is one of three states whose sentencing laws influenced our legislature in enacting the KSGA. State v. Richardson, 20 Kan. App. 2d 932, 935, 901 P.2d 1 (1995).
In Rock, Rock pled guilty to two counts of an intrafamilial sex crime, waived a presentence investigation, and was sentenced. Two prior offenses were revealed in Rock’s criminal history, one of which was a felony, but both were deemed decayed under the Minnesota sentencing guidelines because of their ages. At the time of sentencing, therefore, the parties agreed that Rock had a criminal history score of zero. The State’s agreement to a zero criminal history score, however, was in part influenced by Rock’s misrepresentation to the State at the combined guilty plea and sentencing hearing. When asked by the prosecutor if the one felony which had been revealed was his only prior felony conviction, Rock answered, “ Tes,’ ” under oath. 380 N.W.2d at 212. Believing Rock had a criminal history score of zero, the court dispositionally departed, stayed execution of sentence, and placed Rock on probation for 15 years.
As it turned out, Rock did possess another prior felony conviction which would have counted as criminal history and which would have prevented his other prior convictions from decaying, thus giving him a criminal history score of three under the Minnesota guidelines. Upon discovering the error when a sentencing guidelines worksheet was completed over 3 months after Rock was sentenced, the State moved to correct Rock’s sentence. Subsequent to' the State’s motion, a motion to revoke Rock’s probation was apparently filed based upon Rock’s unamenability to sexual offender treatment.. After the revocation hearing, the court amended Rock’s criminal history score to reflect the three prior offenses and modified Rock’s sentence to concurrent terms of 76 and 95 months.
• On appeal,, the Minnesota Court of Appeals framed the issue as follows: “Did the trial court improperly impose more severe sentences than those originally imposed at sentencing?” 380 N.W.2d at 212. The court noted that the error in Rock’s criminal history could have been discovered if a sentencing guidelines worksheet had been completed at the time of sentencing. “As it was, the sentence was a valid, one and was authorized by law, albeit with an error.” 380 N.W.2d at 213. The court also dispelled its concern ■that Rock might have bfenefitted from a fraud committed on the court at sentencing:
"Fraud requires reliance, however, and neither the prosecutor nor the court had a right to rely on the answer of the defendant to an inquiry about his criminal record. His answer was given under oath; if the prosecution feels the facts justify it, the defendant can be charged with perjury.” 380 N.W.2d at 213.
The Rock court found that the circumstances for resentencing a defendant under Minnesota’s criminal procedure law had not been met. 380 N.W.2d at 213. The circumstances for resentencing under Minnesota .law are substantially similar to the circumstances set forth in K.S.A, 22-3504. See Tauer v. State, 451 N.W.2d 649, 650-51-(Minn. App. 1990). The Rock court ultimately held that “[bjecause the sentence here was authorized by law, the trial court lacked authority under the rules to correct the sentence. The original sentence, as executed, must be reinstated.” 380 N.W.2d at 213-14.
Under the reasoning and holding in Rock, Tolliver’s original sentence would not be considered illegal because, although, the agreed-upon criminal history for Tolliver was incorrect, the sen tence imposed was consistent with what is authorized for a 7-1 offender.
Rock is distinguishable in one respect. The Rock court found the error could have been discovered if a timely sentencing guidelines worksheet had been completed at the time of sentencing. This was because Rock misrepresented his criminal histoiy, and a valid report would have apparently provided proof otherwise. In the present case, a PSI report, along with a criminal history worksheet, was completed at the time of sentencing. Tolliver’s misrepresentation was not only as to criminal history per se but also as to his identity. The PSI report that was completed, therefore, did not provide the proof necessary for the State to show the correct criminal history classification because of Tolliver’s misrepresentation of his identity.
Notwithstanding this distinction, we reach the same conclusion in this case as did the court in Rock — that the original sentence was a legal sentence.
The related questions raised by the parties are as stated earlier: What is the extent of the State’s burden to prove criminal history at the time of sentencing, and what obligation, if any, does a defendant have to either come forward at sentencing with information concerning criminal history or refrain from misrepresenting criminal history? These questions require interpretation of the KSGA.
The Rock court found that, under Minnesota law, a defendant has no duty to refrain from misrepresenting criminal history. Rather, the court suggested that defendants who misrepresent criminal history could be prosecuted for the misrepresentation where the facts justified it. 380 N.W.2d at 213. We agree. In fact, the record in this case shows Tolliver was charged with making a false writing, contrary to K.S.A. 21-3711, and obstructing legal process or official duty, contrary to K.S.A. 21-3808. These charges were dismissed without prejudice upon the State’s motion at the second sentencing.
Under the KSGA, “the State has the burden to prove a defendant’s criminal history unless the offender admits his or her criminal history in open court.” State v. Hankins, 19 Kan. App. 2d 1036, 1047, 880 P.2d 271 (1994). The State’s burden is by a preponder anee of the evidence. Further, the State must prove its case to the sentencing judge at the sentencing hearing. K.S.A. 21-4715(a).
Here, there was no admission of criminal histoiy by Tolliver in open court. Thus, the State was required to prove Tolliver’s criminal history at the sentencing hearing by a preponderance of the evidence. At the original sentencing hearing, the State failed to prove any criminal history for Tolliver; in fact, the State did not even question Tolliver’s criminal history as stated in the PSI report.
Although K.S.A. 21-4715(a) allows a defendant to admit his or her criminal history, there is no provision in the KSGA which requires a defendant to come forward and provide the State with an accurate criminal history. There also is no provision in the KSGA which prohibits a defendant from misrepresenting his or her identity during a presentence investigation or which explains what happens when a defendant does so. See also K.S.A. 21-4604 (provision which sets forth procedure for completing PSI report does not require defendant to provide correct identity or criminal history).
Absent an express provision by the legislature, this court should not read into the KSGA an implicit rule that sentencing proceedings are tainted when based upon misinformation by the defendant. “ ‘Our criminal statutes are to be construed strictly against the State.’ ” State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993) (quoting State v. Sexton, 232 Kan. 539, 543, 657 P.2d 43 [1983]).
Because Tolliver had no duty to provide the State with a correct statement of his criminal history or identity, the criminal history classification of category I — which the parties agreed to at sentencing, which the court accepted, and which has not been appealed — should stand. The court’s original sentence of 12 months’ imprisonment with 24 months’ probation in lieu of incarceration fell within the presumptive sentencing range for a 7-1 offense and, therefore, was not illegal.
The second sentence is vacated, and the case is remanded with directions to reinstate the original sentence. | [
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Elliott, J.:
Defendant Aaron Hawes appeals his upward durational departure sentence. We vacate and remand for resentencing.
Defendant pled guilty to possession of methamphetamine, a level 4 drug felony, and possession of marijuana, a class A misdemeanor. The parties stipulated to a criminal history score of E, which included prior convictions for three burglaries, one attempted burglary, theft, aggravated false impersonation, forgery, and criminal damage to property. All of these convictions are nonperson felonies. As a 4-E drug felony offender, defendant’s presumptive sentence was 18-20-22 months in prison. These are defendant’s first drug-related convictions.
At the time of his arrest, defendant was in possession of % gram of methamphetamine and V2 of a marijuana joint. The State notified defendant of its intent to seek an upward durational departure of 11 months, a right reserved in the plea agreement.
At the hearing, Detective Gofourth testified that defendant had admitted he had purchased or gotten “eight balls” of methamphetamine in the past from several people in Oklahoma. An “eight ball” is a little over 3 grams of methamphetamine or 14 quarter grams.
The State urged three aggravating factors in support of upward departure: Defendant’s involvement with methamphetamine was much more than typically associated with mere users; defendant was on parole in three counties at the time of his current crimes; and defendant has eight nonperson felonies in his history.
The trial court granted an 11-month upward durational departure and stated:
“In addition the Court will take into consideration not only the defendant’s prior record and the fact that he’s on parole, but all of these prior crimes, even though they’re nonperson felonies, all appear to be property crimes or most of them, and based on that and the fact that — what he told Detective Gofourth, I think it’s a reasonable conclusion to draw that he engages in these property crimes in order to secure money to buy drugs for himself or anybody else. I don’t know, but even if it was for himself, the impetus here to commit these property crimes is in order that he buy drugs. I think that’s a fair conclusion to draw, and under aggravating circumstances as presented in this case, the Court would find that the request for upward departure is reasonable and would so impose it based upon the agreement that you had with the defendant that you would not ask for a departure in excess of 11 months.”
The sentences for the current crimes were ordered to run consecutive to the three felony sentences for which defendant was on parole.
A claim that the departure factors relied upon by the court are not substantial and compelling presents a question of law. State v. Gideon, 257 Kan. 591, Syl. ¶ 20, 894 P.2d 850 (1995). A sentence departure based on nonstatutory aggravating factors is subject to greater scrutiny than a departure based on aggravating factors listed in the statute. See State v. Favela, 259 Kan. 215, 238, 911 P.2d 792 (1996) (citing State v. Favela, 21 Kan. App. 2d 202, 215, 898 P.2d 1165 [1995] [Malone, J., dissenting]).
In the present case, the trial court’s reasons for departure at sentencing differ somewhat from its written findings. Comments at the time of sentencing govern as to reasons for departure. Gideon, 257 Kan. 591, Syl. ¶ 21.
Prior property crimes committed to facilitate drug use
There is simply no competent evidence in the record to support the trial court’s finding that defendant’s prior property crimes were committed to facilitate drug use. The State presented no argument or evidence on this issue at all. Unsubstantiated facts and inferences cannot support a departure sentence. See State v. Richardson, 20 Kan. App. 2d 932, 940, 901 P.2d 1 (1995). The trial court erred to the extent it relied on this “factor” to support the upward departure. But if any of the factors cited by the trial court are substantial and compelling reasons for departure, we will affirm that determination. See State v. Zuck, 21 Kan. App. 2d 597, 606, 904 P.2d 1005 (1995).
Multiple nonperson felonies
A defendant’s criminal history cannot be used to justify a departure sentence when the sentencing guidelines have already taken the criminal history into account in determining the presumptive sentence. Richardson, 20 Kan. App. 2d 932, Syl. ¶ 2. The sentencing court, however, is free to consider factors that the criminal history does not take into account. 20 Kan. App. 2d at 941.
Under K.S.A. 21-4709, a criminal history of E is assigned to any person whose history includes three or more adult nonperson felonies but no adult person felonies. Once an offender has three adult nonperson felonies, his or her score will remain unchanged regardless of additional crimes — until he or she commits a person felony. The use of multiple nonperson felonies as an aggravating factor for departure sentencing has not been decided in Kansas.
Generally, a criminal statute is strictly construed in favor of the accused by giving words their ordinary meaning, with any reasonable doubts as to meaning decided in favor of the defendant. State v. Donlay, 253 Kan. 132, Syl. ¶ 3, 853 P.2d 680 (1993). Of course, judicial interpretation of a statute must be reasonable and sensible to effect legislative design and intent. State v. Tyler, 251 Kan. 616, Syl. ¶ 15, 840 P.2d 413 (1992).
As we read 21-4709, the statutory language creates a criminal history category encompassing all of a defendant’s prior nonperson felonies, regardless of number.
In those instances where prior convictions have been used as a substantial and compelling reason for departure, the focus of the sentencing court’s inquiry is not the defendant’s general criminal history, but specifically what that history says about the defendant’s amenability to probation, need for treatment, and/or future dangerousness. See, e.g., Gideon, 257 Kan. at 623-25; State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994); State v. Trimble, 21 Kan. App. 2d 32, Syl. ¶ 6, 894 P.2d 920 (1995), rev. denied March 8, 1996; Richardson, 20 Kan. App. 2d at 941.
In the present case, however, defendant’s excessive nonperson felonies show only that defendant is a persistent criminal.
Current crimes committed while on parole
K.S.A. 21-4603d provides that when a new felony is committed while the offender is on parole, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21- 4608. Further, the person may be sentenced to prison even when the new crime otherwise carries a presumptive nonprison sentence — without constituting a departure. K.S.A. 21-4603d(a).
Whether a sentencing court may rely on a defendant’s parole status as an aggravating factor justifying a durational departure has not been decided in Kansas. As we read the statute, the legislature has mandated consecutive sentencing for presumptive imprisonment and nonimprisonment candidates alike who are sentenced for a crime committed while on parole from a prior felony.
Given the legislature’s express statutory direction of how offenders who commit crimes while on parole are to be sentenced, we hold that a defendant’s parole status, standing alone, is not a substantial and compelling reason for a durational departure.
Defendant’s admission to prior drug purchases/use of uncharged criminal conduct to support departure
At sentencing, the trial court found that defendant committed his property crimes “in order to secure money to buy drugs for himself or anybody else.” Thus, the trial court adopted the State’s argument that defendant’s involvement with mefhamphetamine was much more than is typically associated with mere users of the drug. In fact, the journal entiy speaks of methamphetamine traf-
Departure cannot be based on prior uncharged activity; it violates the presumption of innocence. Even if a person admits to prior criminal activity, that admission is not equivalent to a guilty plea or a conviction. See State v. Bolton, 68 Wash. App. 211, 218-19, 842 P.2d 989 (1992); see also State v. Keniston, 21 Kan. App. 2d 818, 822, 908 P.2d 656 (1995) (sentencing court may use as reason to depart acts connected with the instant offense which could be an element of different offense).
When uncharged criminal conduct is part of a continuing pattern intentionally connected with the charged offense, those facts may be considered as an aggravating factor in some circumstances. See K.S.A. 21-4717(a)(l)(G).
But here, defendant’s admission to purchasing “eight balls” is uncharged conduct factually unrelated and extenuated from the crime for which he was charged. Defendant’s atypical involvement with the drug is not a substantial and competent reason for departure because it is a finding unsupported by substantial competent evidence connected to the current crime of conviction.
Defendant’s sentences are vacated, and the case is remanded for resentencing. | [
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•Luckert, J.:
The Kansas Secretary of Corrections appeals a decision granting relief to Kenneth William Blomeyer pursuant to K.S.A. 60-1507. The action arose when the Department of Corrections (DOC) aggregated three consecutive sentences and determined that all three sentences should be considered for purposes of determining whether Blomeyer was eligible for conversion under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Blomeyer argued that he had served his time on the earliest of the sentences, which was the crime which made him ineligible for conversion under K.S.A. 21-4724(b)(l). He requested a determination that the oldest of the three consecutive sentences had expired resulting in his eligibility for conversion under the KSGA. The district court granted Blomeyer’s requested relief. We affirm.
Of the convictions at issue, Blomeyer was first convicted of conspiracy to deliver cocaine. He was sentenced to an indeterminate sentence of not less than 1 and not more than 5 years. His sentence for this conviction began on May 22, 1984.
Blomeyer was later paroled on this conviction. While on parole Blomeyer received two additional convictions. In one case he was convicted of felony theft and sentenced to an indeterminate term of not less than 1 year and not more than 2 years. In another case he was convicted of felony burglary and sentenced to not less than 2 and Vz and not more than 8 years. Pursuant to K.S.A. 21-4608(c), the sentences for these new crimes were imposed consecutive to each other and'consecutive to the sentence imposed for his conviction of conspiracy to deliver cocaine. The last two sentences began on March 27, 1986.
Blomeyer’s parole was revoked by the Kansas Parole Board on or about October 27,1987. He was ordered to serve until his parole eligibility date on the time resulting from the aggregation of the three sentences. Applying K.S.A. 21-4608(f)(4) and giving Blomeyer credit for time served, the DOC determined Blomeyer’s controlling sentence in all three cases was 4 and Vz to 15 years.
It is undisputed that Blomeyer had served longer than the 5-year maximum on his original conviction by the time the DOC considered whether he was eligible for conversion under the KSGA. However, the DOC treated the three convictions as aggregated and, because Blomeyer had not exhausted the aggregated time, determined Blomeyer was still serving time on the conspiracy to deliver cocaine charge. This determination made Blomeyer ineligible for conversion. See State v. Lunsford, 257 Kan. 508, Syl. ¶ 1, 894 P.2d 200 (1995).
The DOC reached this determination by applying 21-4608(f)(4), which provides:
“(f) ... In calculating the time to be served on concurrent and consecutive sentences, the following rules shall apply:
(4) When indeterminate sentences are imposed to be served consecutively to sentences previously imposed in any other court or the sentencing court, the aggregated minimums and máximums shall be computed from the effective date of the subsequent sentences which have been imposed as consecutive. For the purpose of determining the sentence begins date and the parole eligibility and conditional release dates, the inmate shall be given credit on the aggregate sentence for time spent imprisoned on the previous sentences, but not exceeding an amount equal to the previous minimum sentence less the maximum amount of good time credit that could have been earned on the minimum sentence. For the purpose of computing the maximum date, the inmate shall be given credit for all time spent imprisoned on the previous sentence. This method for computation of the maximum sentence shall be utilized for all sentences computed pursuant to this subsection after July 1, 1983.
“Nothing in this subsection (f)(4) shall affect the authority of the Kansas parole board to determine the parole eligibility of inmates pursuant to subsection (d) of K.S.A. 22-3717 and amendments thereto.”
In considering Blomeyer s petition pursuant to 60-1507, the district court found that the provisions of 21-4608(f)(4) were administrative in nature and not substantive.
Our review of the ruling is unlimited; the interpretation of 21-4608(f)(4) is a question of law. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
On appeal the DOC argues the district court’s ruling disregards the clear legislative intent of the statute. Relying upon prior case law, the DOC argues that the legislative intent behind 21-4608(f)(4) was to treat more harshly defendants who committed additional felony crimes after being released to a community corrections program or while on parole, probation, postrelease supervision, or conditional release. However, the cases cited by the DOC do not hold that the legislature intended harsh treatment through the aggregation provisions. Rather, the findings in these cases reflect that the legislative intent was to impose a harsher penalty by requiring consecutive sentences if a second crime is committed while a defendant is on probation, parole, conditional release, post-release supervision, or assignment to a community correctional services program. See, e.g., State v. Reed, 237 Kan. 685, 687, 703 P.2d 756 (1985) (K.S.A. 21-4608 enacted to require mandatory consecutive sentences in certain cases to deal with the concern of the public over felonies committed by persons who had previous felony charges); State v. Daniels, 18 Kan. App. 2d 338, 341, 853 P.2d 65, rev. denied 253 Kan. 861 (1993) (“K.S.A. 1992 Supp. 21-4608(4) reflects the clear intention of the legislature to deter crime by . . . requiring the judge to impose the harsher penalty of a consecutive sentence.”). Hence, these cases do not support the DOC’s construction of 21-4608(f)(4).
Additionally, the language of the statute does not support the interpretation suggested by the DOC. The stated purpose of 21-4608(f) is to allow determination of the time to be served on multiple sentences, the sentence begin date, and parole eligibility and conditional release dates. There is no language in the statute which would allow application of the aggregation rules to purposes other than those stated.
The statute does not allow an administrative conversion of a sentence of 1 to 5 years to a sentence which is not satisfied at the expiration of a 5-year term. The character of a sentence may not be changed in this manner. Once the district court has imposed the sentence, it may not be made harsher. See State v. Royse, 252 Kan. 394, 398, 845 P.2d 44 (1993). The harsh punishment intended by the legislature for Blomeyer’s failure to remain law abiding while on parole must be and was imposed through making the sentences on the last two convictions consecutive to each other and to the earlier conviction.
Blomeyer has served longer than the 5-year maximum term for his original conviction. For purposes of applying the KSGA, Blomeyer cannot be considered as still serving a sentence for the conspiracy to deliver cocaine. That crime has expired, and Blomeyer was eligible for conversion since the remaining convictions are not ones which fall under the exceptions to conversion found in K.S.A. 21-4724.
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Gernon, J.:
Hillis B. Krumroy was convicted by a jury of criminal nonsupport of a child in violation of K.S.A. 21-3605. He was originally sentenced to a term of 1 to 5 years and then placed on 5 years’ probation. However, Krumroy filed a motion objecting to being placed on probation, and the trial court resentenced him to serve a 1- to 5-year term in the custody of the Secretary of Corrections. The Kansas Sentencing Guidelines Act (KSGA) sentence was computed to be 6 months’ imprisonment and 12 months’ post-release supervision. Krumroy appeals from his conviction and sentence.
Krumroy was married to Nan Krumroy in 1967 and was divorced from her in 1986. As a result of the marriage, two children were bom.
Krumroy holds a bachelor’s degree in business and a master’s degree in accounting. Prior to the divorce, he had apparently been steadily employed and held several accounting jobs for various em-
In 1986, Krumroy moved to the state of California. In that year, he paid $1,800 in child support; he paid $2,400 in 1987; and he paid $50 in 1988. Since 1988, defendant has made no effort to support his children.
The mother of the children did the best she could to provide all of their support. She worked as a school teacher and supplemented that salary with second and third jobs. In most instances, her additional jobs required her to work after school, on Saturdays, and in the evenings.
In 1990, a complaint was filed charging Krumroy with nonsupport of his daughter from December 1,1988, to November 1,1990. Prior to the trial of this matter, the complaint was amended to allege that the nonsupport continued through August 15, 1994.
Krumroy was arrested in California in 1994 and was returned to Kansas for trial. At the time of his arrest, he was living in his car and was rummaging through a trash dumpster for recyclables. He testified that he began living in his car in 1993 and that his annual income was $5,000, mostly as an “ecology specialist,” collecting aluminum cans and other recyclables.
While in California, Krumroy suffered an eye injury while working on the production fine in a book bindery. He received workers compensation for some period of time. He also developed cataracts and had surgery at a VA hospital.
A court-appointed psychologist testified that she had diagnosed Krumroy with bipolar disorder, more commonly known as manic depression. Krumroy told this psychologist that he could not use his degree to work because “Filipinos are flooding the market,” and working for lower wages and, as a result, there were no jobs left for him.
Krumroy raises several issues on appeal.
IMPRISONMENT FOR DEBT
Krumroy argues that K.S.A. 21-3605 violates the prohibition against imprisonment for debt found in the Kansas Constitution Bill of Rights. We disagree.
Article 16 of the Bill of Rights to the Kansas Constitution provides: “No person shall be imprisoned for debt, except in cases of fraud.”
The State does not argue that the constitutional provision quoted above prohibits imprisonment for the failure to pay debt in the absence of fraud. The State argues that under the circumstances shown in this case, Krumroy was not imprisoned for debt.
We agree with the State. Krumroy s argument is without merit. In State v. Jones, 242 Kan. 385, 389-90, 748 P.2d 839 (1988), our Supreme Court indicated the following concerning constitutional guarantees against imprisonment for debt:
“Constitutional guarantees against imprisonment for debt have as their purpose the prevention of the useless and often cruel imprisonment of persons who, having honestly become indebted to another, are unable to pay as they undertook and promised. The spirit of such a provision is to protect an honest debtor who is poor and has nothing with which to pay so that he should not be at the mercy of his creditors if his insolvency is bona fide, but it is not intended to shield a dishonest man who takes unconscionable advantage of another. 16A Am. Jur. 2d, Constitutional Law § 619, p. 569.”
The Kansas Supreme Court in In re Wheeler, Petitioner, 34 Kan. 96, Syl. ¶ 1, 8 Pac. 276 (1885), construed the constitutional provision in question as follows: “The provision of the constitution declaring that ‘no person shall be imprisoned for debt, except in cases of fraud’ applies only to liabilities arising upon contract.”
The obligation of a parent to support his or her children does not arise on contract. It arises because of a duty imposed by the common law and by society upon all parents to support their children. The failure to fulfill that obligation is not the failure to pay a. debt in the sense that term is used in our constitution.
The interpretation of a criminal statute is a question of law over which we have unlimited review. State v. Craig, 254 Kan. 575, 578, 867 P.2d 1013 (1994). “A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.” State v. Scherzer, 254 Kan. 926, Syl. ¶ 6, 869 P.2d 729 (1994).
“This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.” State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989).
Krumroy cites us no instance in which a court has held that the imprisonment of a parent for nonsupport violates constitutional proscriptions against imprisonment for debt. Indeed, virtually all of the decisions on this subject have rejected his argument. There are a number of such decisions written many years ago. We do not consider the age of these decisions as diminishing their value.
The Kansas Supreme Court decided this issue in Wheeler. Wheeler was a proceeding wherein the father of an illegitimate child was jaded for not supporting his child. He argued that his incarceration violated Article 16 of the Bill of Rights to the Kansas Constitution. The Supreme Court disagreed and held: “The charge of maintenance and education which the father of an illegitimate child may be adjudged to pay under the bastardy act, is not a debt in the sense in which that term is used in the provision of the constitution forbidding imprisonment for debt.” 34 Kan. 96, Syl. ¶ 3.
It is true that Wheeler is not directly on point. However, Krumroy is imprisoned for failing, without lawful excuse, to maintain and educate his child. The basis upon which the imprisonment is imposed under 21-3605 is the same basis on which Wheeler was placed in jail. Therefore, we consider Wheeler to be authority to support our decision that 21-3605 does not violate the constitutional prohibition against imprisonment for debt.
In Martin v. People, 69 Colo. 60, 168 Pac. 1171 (1917), the Colorado Supreme Court rejected the argument set forth by the defendant, holding that Colorado law allowing suspension of sentence on conviction for nonsupport of an infant child upon giving bond for the child’s support and providing for enforcement of the sentence upon violation of the conditions of the bond did not violate the provision of the Colorado Constitution prohibiting imprisonment for debt. The court held the sentence is for the crime for which accused is convicted, though he may avoid its execution by complying with the statute, and the sentence is not for nonpayment of the debt.
In State v, Manley, 197 Iowa 46, 196 N.W. 724 (1924), the Iowa Supreme Court, in dealing with a statute almost identical to the statute in this case, held that where defendant was required by a divorce decree to pay the mother of his children a certain sum for their support, the assumption that a conviction under the relevant Utah statute punished failure to pay the amount so adjudged, in violation of the Utah Constitution provision prohibiting imprisonment for debt, was unwarranted, both the statute and indictment being directed against the failure of defendant to fulfill his common-law obligations to support his children.
There are other decisions in accord. Krumroy appears to confuse his common-law obligation to support his children with that imposed by the trial court in the divorce action. Krumroy was not prosecuted for failing to pay child support ordered by the divorce court. He was prosecuted and convicted for failing to support one of his children. The common-law obligation to support the children continues despite Krumroy’s divorce and despite any child support orders issued by the divorce court. The Kansas Supreme Court described that obligation in State v. Miller, 111 Kan. 231, 234, 206 Pac. 744 (1921):
“The desertion act proceeds upon the theory that the state may compel a father to support his minor child whenever in destitute or necessitous circumstances, either as a public duty lawfully imposed by law, or as a means to prevent the state or the public from having to assume the burden of such support. In The State v. Wellman, 102 Kan. 503, 170 Pac. 1052, Mr. Justice Mason, speaking for the court said:
We think that whether the defendant is answerable to the Kansas courts depends upon whether he owed this state a duty to support his children while they were with their mother. Although he was divorced from her, they were still his children, and, except for special circumstances, he was under an obligation to support them.’ ”
We hold that K.S.A. 21-3605 does not violate Article 16 of the Bill of Rights to the Kansas Constitution. The imprisonment of Krumroy is not for a debt and is not for an obligation arising on contract. It is for an obligation imposed by society and by the com mon law, and it is perfectly proper for the State to provide imprisonment as a permissible punishment for the violation of that duty.
WITHOUT LAWFUL EXCUSE
Under K.S.A. 21-3605, the failure of a parent to support his or her child is not criminal unless it is “without lawful excuse.” Krumroy argues that the State failed to prove this element of the crime beyond a reasonable doubt. This is the only issue raised as to the sufficiency of the evidence. Krumroy does not argue that the child in question was not his daughter or that she was not in necessitous circumstances. He further concedes that he provided no support for the child.
In State v. Kirkland, 17 Kan. App. 2d 425, 431, 837 P.2d 846, rev. denied 251 Kan. 941 (1992), we held that the phrase “without lawful excuse” and the phrase “without just cause” were equivalent phrases as applied to the nonsupport statute. The meaning of “just cause,” as that term relates to the nonsupport statute, was discussed by the Supreme Court in State v. Wohlfort, 123 Kan. 62, 68, 254 Pac. 317 (1927). We relied on Wohlfort in Kirkland. In Wohlfort, the Supreme Court approved an instruction defining just cause as follows:
“ "You are instructed that the term “just cause” as used in the law, means any cause of sufficient import to reheve the defendant, who under the law is charged with the duty of providing for the support and maintenance of his wife, from such duty and legal obligation, such as mental incapacity or physical disability of the defendant, rendering him unable to provide for the support and maintenance of such wife; or financial conditions which the defendant has honestly, in good faith, endeavored to overcome. The term “just cause” cannot be defined with absolute accuracy, and may arise from any cause or combination of causes or circumstances, and you are to determine from the evidence in this case whether or not the defendant did or did not act with just cause in whatever he did or failed to do with relation to the offense with which he is charged in this case; and in considering such conditions and circumstances, you should consider the ability to earn a livelihood, and to determine whether the defendant did all that he could or should have done under the circumstances shown.’ ” 123 Kan. at 68.
In dealing with this issue, it is important to keep in mind our standard of review:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” (Emphasis added.) State v. Borthwick, 255 Kan. 899, Syl. ¶ 1, 880 P.2d 1261 (1994).
The issue of whether Krumroy failed to support his child without lawful excuse or without just cause is broader than determining whether he had sufficient income to provide support. The record shows that in several of the years in question, Krumroy s income exceeded his expenses. In those years, he clearly had the means to provide support. However, under the definition in Wohlfort, the question is also whether Krumroy had “the ability to earn a livelihood” and whether he did “all that he could or should have done under the circumstances shown.” 123 Kan. at 68. Krumroy would be guilty of failing to provide support without lawful excuse if a jury concluded that he had the ability to earn a livelihood and did not do all that he could or should have done under the circumstances.
We have reviewed the evidence in this record in the light of our standard of review and the definitions set forth in Wohlfort. In doing so, we conclude that the evidence was sufficient to support a finding beyond a reasonable doubt that Krumroy’s failure to support his child was without lawful excuse.
It is true that Krumroy presented evidence to show that he was ill and living in poverty. It is true that when arrested he was apparently rummaging through a dumpster looking for recyclables. However, there is another side to the evidence. The evidence indicates that Krumroy held two college degrees. His testimony showed him to be intelligent and able-bodied.
There is an abundance of evidence in the record from which a jury could have found, beyond a reasonable doubt, that Krumroy had “the ability to earn a livelihood” and that he did not do all that he “could or should have done” to earn a living and help support his daughter. There is also evidence in the record that in some of the years in question, Krumroy’s income exceeded his living ex penses. Despite that fact, he provided little, if any, support for his daughter.
We hold there was sufficient evidence in the record from which a jury could determine beyond a reasonable doubt that Krumroy had failed to support his daughter “without a lawful excuse.”
EVIDENTIARY CONSIDERATIONS
Krumroy argues that the trial court erred by admitting evidence of his gambling.
Krumroy s ex-wife testified that he had told her that he was moving to Southern California to earn a living at the racetrack. In his own testimony, he had admitted to frequent gambling at racetracks during his marriage. He also admitted that he continued to gamble at racetracks, at least during the early months after moving to California. Krumroy stated that after he went to California, “I went to the track frequently, yes.”
Krumroy now argues that the trial court erred in admitting this evidence.
“Admission or exclusion of evidence rests within the sound discretion of the trial judge, subject to exclusionary rules.” State v. Davis, 256 Kan. 1, Syl. ¶ 2, 833 P.2d 735 (1994). Krumroy argues that the evidence on his gambling was irrelevant:
“The primary test of admissibility of evidence is its relevancy to the issue in question. Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence or if it has any tendency in reason to prove any material fact.” State v. Vaughn, 254 Kan. 191, Syl. ¶ 5, 865 P.2d 207 (1993).
We hold that the trial court did not err in admitting evidence of Krumroy s gambling. This evidence was relevant to both an essential element of the crime and to test his testimony. If he was gambling, he was spending money on something other than supporting himself or his child. He also testified extensively on his expenses and income. The evidence that he gambled at the race track has an impact on the credibility of Krumroy’s testimony on his expenses and income.
KANSAS SENTENCING GUIDELINES ACT
Krumroy next argues that the trial court erred by imposing an indeterminate sentence in this case. The initial complaint charged Krumroy with nonsupport from December 1, 1988, through November 1, 1990. However, that complaint was then amended at trial to charge him with nonsupport through April 15, 1994. The amendment of the complaint results in a situation in which there is an allegation of nonsupport both before and after July 1, 1993, the effective date of the Kansas Sentencing Guidelines Act (KSGA).
We conclude Krumroy s argument has no merit and that this issue is controlled by the following provisions of K.S.A 21-4723:
“If it cannot be determined whether the crime was committed on or after July 1, 1993, the person convicted of committing such crime shall be sentenced as if such crime had been committed prior to July 1,1993. Except as provided in K.S.A. 21-4724, the provisions of this act creating a presumptive sentencing guidelines system have no application to crimes committed prior to July 1,1993. A crime is committed prior to July 1, 1993, if any of the essential elements of the crime as then defined occurred before July 1,1993. Except as provided in K.S.A. 21-4724, prosecutions for prior crimes shall be governed, prosecuted and punished under the laws existing at the time such crimes were committed.” (Emphasis added.)
The statute expressly provides that a crime is committed prior to July 1, 1993, if any of the essential elements of the crime occurred prior to that date. If a crime occurs prior to July 1, 1993, it is not a KSGA crime.
In this case, the allegations of the complaint and the proof offered at trial showed that Krumroy had failed to support his child since 1988. This is an essential element of the crime of nonsupport, and it clearly occurred prior to July 1, 1993. Under the circumstances, we hold that the trial court did not err by imposing a sentence under the pre-KSGA law.
In concluding, we note that based on the record before us, Krumroy s criminal history indicates that his sentence should be converted to a KSGA sentence. If, or when, that is done, Krumroy will serve the more beneficial KSGA sentence and not the indeterminate sentence imposed. In effect, the KSGA will be applied through sentence conversion. Krumroy can show no prejudice from a failure to impose the KSGA sentence directly.
TURY INSTRUCTION
Finally, Krumroy argues that the trial court erred in giving the jury the following instruction:
“It is not a defense to the charge of nonsupport of a child that the mother of such child, or any other person or organization, voluntary or involuntary furnishes necessary food, clothing, shelter, medical care, or any other remedial care for the child during the period of time the defendant failed to do so.”
Krumroy objected to this instruction at trial on the grounds that it was prejudicial and that it would confuse the juiy.
The trial court has discretion in presenting instructions to the jury. State v. Johnson, 255 Kan. 252, 256, 874 P.2d 623 (1994). “On appeal, the instructions should be approved if, after being considered in their entirety, they properly and fairly state the law as applied to the facts.” 255 Kan. at 256.
“If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Whitaker, 255 Kan. 118, 127, 872 P.2d 278 (1994).
Krumroy relies upon the recent case of State v. Selberg, 21 Kan. App. 2d 610, 904 P.2d 1014 (1995), to assert that the giving of the instruction was error because it relieved the State of its burden of proving that the child was in “necessitous circumstances.”
In Selberg, the sole issue was whether Selberg had met his child support obligations. No evidence was offered showing that the child was in necessitous circumstances. Selberg appealed his conviction of criminal nonsupport of a child, challenging, among other things, the trial court’s decision to grant a motion in limine to prevent him from introducing evidence of a trust fund and the mother’s income to show that the child was not in necessitous circumstances. The Selberg court expressly limited its holding to the peculiar facts before it.
We believe that the case before us is closer to the case of State v. Knetzer, 3 Kan. App. 2d 673, 675, 600 P.2d 160 (1979), in which Judge Abbott, now Justice Abbott, writing for the court, concluded that there was “a reasonable inference that the children were in necessitous circumstances’ during the entire period that defendant was charged with nonsupport.”
The record in Knetzer is similar to the record in the case before us and allows us to draw the same reasonable inference that the child here was in necessitous circumstances.
The record reveals that the child here was in necessitous circumstances because the child’s mother was forced to declare bankruptcy, even though she had a full-time teaching position and worked, at times, two or more other jobs. Here, Krumroy has essentially removed himself from any meaningful parenting obligation by his absence from the family or his refusal to provide material support. His life-style has forced the mother of his child to take time which could have been devoted to the child to work other jobs in order to survive. On several levels — material, emotional, and parental — the inferences are reasonably drawn here that the child was in necessitous circumstances.
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KNUDSON, J.:
Donald Beall appeals the district court’s determination of sentence conversion under K.S.A. 21-4724. He argues that the court was without jurisdiction to consider departure from the sentencing range provided by the crime severity and criminal history grid matrix established under the Kansas Sentencing Guidelines Act (KSGA). He further contends that the district court’s determination of sentence under the KSGA was vindictive and based upon irrelevant evidence presented at the hearing to consider departure from the presumptive sentence range under the matrix.
We reverse the district court because the State’s motion requesting a durational departure was not filed in a timely manner; thus, the State waived its right to request departure, and the district court lacked jurisdiction to enter a departure sentence. Our conclusion makes unnecessary consideration of the remaining issues raised on appeal.
In September 1992, Beall pled no contest to five counts of abuse of a child, a class D felony. The victim was Beall’s 5-week-old daughter, D.B. In December 1992, the court sentenced Beall to five concurrent terms of 3 to 10 years in prison.
In November 1993, the Department of Corrections (DOC) issued a sentencing guidelines report which stated that Beall was eligible to have his indeterminate sentence retroactively converted to a guidelines sentence. The State filed an objection to retroactive sentence conversion, and the court held a hearing on the matter. The State argued that sentence conversion was not mandatory. The court agreed and refused to convert Beall’s sentence, citing the brutality of the crime and the vulnerability of the victim. In declining to convert Beall’s sentence, the court stated:
“If, however, at some later date it is determined that the Court was obligated to modify the sentence, then and in that event, under Level 5(i), the Court would sentence the defendant to 34 months with the Secretary of Corrections, a 6.8 month potential good time, with a 36 month post-release supervision. Under the new Guidelines also, this being a border box, the Court would deny the defendant’s request for probation.”
We note a 34-month sentence is the maximum within the severity level 5, criminal history level I grid box.
Beall appealed the court’s refusal to convert his sentence. In an unpublished opinion, this court followed State v. Gonzales, 255 Kan. 243, 874 P.2d 612 (1994), and held that the KSGA mandated retroactive sentence conversion for eligible persons. State v. Beall, No. 71, 316, unpublished opinion filed September 16, 1994 (Beall I). This court remanded the case for resentencing in accord with the KSGA.
In September 1994, upon receiving the Court of Appeals opinion, the district court issued a letter to the State and to Beall’s attorney informing them of the decision. The court wrote: “At the time of the hearing, although conversion was denied, the Court did proceed with sentencing under the new guidelines if it was later found that the new guidelines appealed [sic].” The court then di rected the State to prepare a journal entry reiterating the guidelines sentence calculated at sentencing.
Instead of preparing the journal entry in October 1994, the State filed a motion requesting durational departure. On January 3,1995, the district court took evidence, granted the State’s motion, and converted Beall’s controlling sentence under the KSGA to a term of 68 months.
The central issue before the court is whether the State filed its motion for departure in a timely manner, conferring jurisdiction upon the district court to enter a departure sentence. This requires interpretation of K.S.A. 21-4724(d) and K.S.A. 21-4718(a)(l) and how the two statutes relate.
Our standard of review is unlimited because interpretation of statutes is a question of law. See State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993).
Beall 1 was decided in the district court before State v. Gonzales, 255 Kan. 243, was filed. In Gonzales, the court held that the KSGA mandated retroactive sentence conversion for eligible persons. The court also noted that the trial court could depart under proper circumstances from a presumptive guidelines sentence. 255 Kan. at 250.
Apparent from the pleadings and transcripts is that upon receipt of Beall’s sentencing guidelines report from the Department of Corrections, the Harvey County Attorney did not realize that, in addition to requesting a hearing under K.S.A. 21-4724(d) within 30 days after die report, a party could also file a motion for departure under K.S.A. 21-4718(a)(l). This conclusion is borne out by the State’s statement to the court at the conversion hearing on January 10, 1994, that “had this crime been committed after July 1, 1993, the State would have asked for departure.”
Instructive is State v. Corber, 21 Kan. App. 2d 325, 900 P.2d 241 (1995), wherein the defendant was sentenced for a crime committed before July 1, 1993 (the effective date of the KSGA), but was sentenced after that date. In discussing departure from a presumptive guidelines sentence, the court stated:
“We note that in computing the appropriate guidelines sentence, the trial court has the authority to depart dispositionally up or down. If the trial court chooses to depart, it must do so at the time the guidelines sentence is computed, and it must set forth its reasons for departure just as if it were imposing that sentence.” (Emphasis added.) 21 Kan. App. 2d at 330.
The Corber decision holds that the legislature intended computation of sentence under K.S.A. 21-4724(f) to be final. That is, the sentence computation should encompass all aspects of sentencing as if the offender were actually being sentenced under the guidelines.
We believe that the rationale in Corber under K.S.A. 21-4724(f) is just as applicable under K.S.A. 21-4724(d). If the State intends to file a departure motion under K.S.A. 21-4718(a)(l), it must do so prior to the district court’s determination of sentence under K.S.A. 21-4724(d).
In the present case, the State did not file a timely motion for departure, even though it had the clear opportunity to do so. Although the district court concluded that conversion under the KSGA was not mandatory, the court determined precisely what Beall’s applicable guidelines sentence was to be. (The court concluded a determinative sentence of 34 months, which was the maximum within the presumptive sentence, and a post-release supervision period of 36 months, which was in excess of the presumptive period.) The fact that the district court erroneously concluded that conversion was not mandatory should not negate the nature and extent of the hearing and the judicial determination of Beall’s sentence under conversion. By granting 1 year later the State’s untimely motion for departure after Beall I, the district court impermissibly modified its previous conclusions of law as to the guidelines sentence. We hold that the State’s motion to modify was not timely and that the district court was without jurisdiction to modify Beall’s sentence upon remand.
We have noted the State’s assertion that this court in Beall I set into motion what transpired because of its direction to the district court upon remand. While acknowledging that perhaps the court’s language lacked clarity, within the context of the issues presented and the decision reached, the appellate court’s direction was for the district court to comply with the conversion provisions of the KSGA and Gonzales, not to return to square one as if there had never been a hearing under K.S.A. 21-4724(d) and conclusions of law by the trial court as to Beall’s converted sentence.
Reversed and remanded for proceedings consistent with this opinion and the district court’s prior determination of the conversion sentence in the proceedings of January 10, 1994. | [
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Marquardt, J.;
The Hartford (Hartford) seeks indemnification, as a surety, from Donald F. Tanner on two bond contracts Tanner signed as an indemnitor. After a trial to the district court, the district court ruled that Hartford’s payments on the bonds were not reasonable and, therefore, Hartford was not entitled to indemnification from Tanner. Hartford appeals both the use of the “reasonableness” legal standard and the application of that standard.
Tanner and Ronald Brock were partners who imported “gray market” motor vehicles that required conversion to bring them into compliance with standards set by the Environmental Protection Agency (EPA) (19 C.F.R. § 12.73 [1995]) and the Department of Transportation (DOT) (19 C.F.R. § 12.80 [1995]; see 19 C.F.R. § 113.11 [1995]). Federal regulations require that importers obtain a surety bond from the United States Customs Service (Customs) to ensure that the conversions are made.
To obtain a Customs bond from Hartford, an applicant must sign Hartford’s printed application form. Brock and Tanner signed such forms for the issuance of three bonds. Hartford then issued bond No. 4474858 on October 20, 1981, for $68,000, bond No. 4474859 on November 2,1981, for $27,000, and bond No. 4474873 on November 10, 1981, for $7,000.
Hartford asserts that the obligations of the parties are controlled by their printed application form and that Hartford’s good faith should be controlled by the language of the form only. The form contains broad indemnity provisions in Hartford’s favor. It states, inter alia:
“SECOND: That the undersigned [principal and indemnitor] will at all times indemnify and keep indemnified the Surety, and hold and save it harmless from and against any and all liability for damages, loss, costs, charges and expenses of whatsoever kind or nature (including counsel and attorney’s fees) which the Surety shall or may, at any time sustain or incur by reason or in consequence of having executed the bond or oilier instrument herein applied for, or any and all other bonds or other instruments executed for or at the instance and request of the undersigned; and will pay over, reimburse, and make good to the Surety, its successors, and assigns, all sums and amounts of money which the Surety, or its representatives shall pay, or cause to be paid, or become fiable to pay, by reason of the execution of any such instruments, or in connection with any litigation, investigation, or other matters connected therewith, such payment to be made to the Surety as soon as it shall have become hable therefore, whether Surety shall have paid out such sum, or any part thereof, or not. That in any accounting which may be had between the Undersigned and the Surety, the Surety shall be entitled to credit for any and all disbursements in and about the matters herein contemplated, made by it in good faith under the belief that it is or was hable for the amounts so disbursed, or that it was necessary or expedient to make such disbursements, whether such liability, necessity, or expediency existed or not.
“ELEVENTH: That the Surety shall have the exclusive right for itself, and for the principal on or in said bond or other instrument, to decide and determine whether any claim, demand, liability, suit, action, judgment or adjudication, made, brought, or entered against the Surety or principal on or in said bond or other instrument, or both, whether jointly or severally, or jointly and severally, shall, or shall not, be defended, tried, appealed, or settled, and its decision shall be final, conclusive and binding upon the undersigned.”
Brock imported four Mercedes-Benz automobiles. Tanner paid Exclusively Mercedes (Peter Scarpias) to bring these vehicles into compliance with federal regulations. There is no evidence that the conversion work was completed; however, Scarpias led Tanner to believe that all of the conversion work had been completed and that the documentation to prove his work had been submitted to both the EPA and DOT. No documentation on the completed work was ever sent to Tanner or Customs.
In December 1981, the vehicles were delivered to a used car dealership, Mercedes Unlimited. The owners of Mercedes Unlim ited stole the vehicles, were subsequently charged with theft, and pled guilty on June 8, 1983.
Customs demanded payment of $6,511.11 on bond No. 4474873, and on May 2, 1984, Hartford paid Customs’ demand.
Various notices of “penalty or liquidated damages” and letters were sent to Brock and Hartford over a period of 4 years on bond No. 4474858. Two of the letters stated:
“As surety, you are entitled to the same relief which would have been afforded the principal. Further relief will be granted upon receipt of proof that the vehicle was modified to conform to EPA and/or DOT standards and was not sold prior to this release by those agencies.”
The two notices stated:
“If you feel there are extenuating circumstances, you have the right to object to the above action. Your petition should explain why you should not be penalized for the cited violation. Write the petition as a letter or in legal form; submit in (triplicate); addressed to the Commissioner of Customs, and forward to the District Director of Customs at 300 S. Ferry St., Terminal Island, Ca. 90731 Attn: F, P&F. (213) 548-2448. Unless the amount herein demanded is paid or a petition for relief is filed with the District Director of Customs within 60 days from the date hereof, further action will be taken in connection with your bond or the matter will be referred to the United States Attorney.”
Jeffrey Hodges, Hartford’s attorney, acknowledged that Hartford had received notices from Customs on bond No. 4474858. Hodges testified that these notices are routinely sent by Customs but he would not take any action unless there were “large amounts being demanded, or numerous ones coming in. Really depends on the situation.”
The first contact Hodges had with Tanner was around November 8,1983. In a telephone conversation, Tanner informed Hodges that five of the vehicles had been stolen and that the thieves had been convicted. Tanner’s attorney, John Skoog, wrote Customs a letter on October 22, 1984, protesting its $58,365 claim. A copy of this letter was sent to Brock and Hartford.
Skoog testified that after February 10, 1986, he had a phone conversation with Hodges. Skoog told Hodges that tihe “notices are generated automatically by the Customs Department as long as a protest is on file. There’s no effect, they don’t need to be honored.” Skoog further informed Hodges that adjudication of the $58,365 claim was on hold and they would not have an answer on the claim for about 18 months.
Hodges never indicated to Skoog or Tanner that Hartford intended to pay either of the liquidated damage assessments.
On April 15,1986, Hartford received one of many demands from Customs for payment of the $58,365. On April 16,1986, Hartford, without any further contact with Skoog or Tanner or any further investigation, paid the $58,365.
Susan Kohn Ross, an attorney specializing in customs, testified that Skoog’s letter was sufficient to start the mitigation procedure with Customs. Ross also testified that because of the backlog of about 9,000 cases at Customs at that time, cases were routinely mitigated for cents on the dollar.
About the same time as the two bonds in question in this case were being disputed, Customs made a demand on Hartford for payment on a $27,000 bond on which Tanner was indemnitor. Hartford petitioned Customs for release from its obligation on this bond. Hartford was never required to pay anything on this bond.
On December 8, 1986, Hartford sued Tanner as indemnitor for the amounts it had paid Customs on the two bonds.
The district court entered summary judgment in favor of Tanner, holding that Hartford’s “decision to pay the bond claims without attempting to mitigate by use of the administrative appeals process provided by the United States Customs Service was in violation of its duty of good faith and fair dealing under its agreement with defendant.”
Hartford appealed. This court reversed and remanded for a factual determination of the reasonableness of the payments made by Hartford. Hartford v. Tanner, No. 64,995, unpublished opinion filed November 2, 1990. Following a trial to the district court, the court ruled that Hartford’s payments on the bonds were not reasonable and, therefore, Hartford was not entitled to indemnification from Tanner. Hartford appeals.
Hartford argues that the district court ignored the language of the contract (Hartford’s bond application form) and imposed a stricter good faith and reasonableness standard on Hartford. Tan ner responds that this court’s previous order held that the duty of good faith and fair dealing is implied.
Standard of Review
The parties have characterized the bond application as a contract. Hartford correctly notes that when construing a contract this court has unlimited review. See Spivey v. Safeco Ins. Co., 254 Kan. 237, 240, 865 P.2d 182 (1993). The construction of a written instrument is a question of law. Akandas, Inc. v. Klippel, 250 Kan. 458, 464, 827 P.2d 37 (1992). “Thus, irrespective of the district court’s construction, 'on appeal a contract may be construed and its legal effect determined by the appellate court.’ [Citation omitted.]” Kansas Baptist Convention v. Mesa Operating Limited Partnership, 253 Kan. 717, 724, 864 P.2d 204 (1993). However, a determination of good faith conduct is a question of fact properly decided by the trial court. See Shelton v. Union Bankers Ins. Co., 853 S.W.2d 589, 593-94 (Tex. App. 1993) (remanding question of breach of good faith because the jury failed to answer the question).
In J. F. White Engineering Corp. v. General Ins. Co. of America, 351 F.2d 231, 233 (10th Cir. 1965), the court evaluated the reasonableness of a bonding company’s decision to allow the contractor to complete the project. The court held that “the issue of reasonableness in circumstances like these is usually for the trier of the facts. [Citation omitted.]” 351 F.2d at 233.
In this case, the determination of the correct standard of good faith under the indemnity agreement is a question of law subject to de novo review. See Baptist, 253 Kan. at 724. The factual determination of whether and to what extent the good faith standard was met, addressed in the second issue, is reviewed to determine whether the district court’s findings of facts " ‘are supported by substantial competent evidence and whether they are sufficient to support the trial court’s conclusions of law.’ ” Levier v. Koppenheffer, 19 Kan. App. 2d 971, 979, 879 P.2d 40, rev. denied 255 Kan. 1002 (1994) (quoting Scott v. State Farm Mut. Auto Ins. Co., 18 Kan. App. 2d 93, Syl. ¶ 1, 850 P.2d 262 [1992]).
Suretyship
The general principles of suretyship are:
“A surety is [defined as] one who becomes responsible for the debt, default or miscarriage of another; but in a narrower sense, a surety is a person who binds himself for the payment of a sum of money, or for the performance of something else, for another who is already bound for such payment or performance.” SNML Corp. v. Bank, 41 N.C. App. 28, 36, 254 S.E.2d 274 (1979).
“Every suretyship involves three parties: (a) the one for whose account the contract is made, whose debt or default is the subject of the transaction, and who is called the principal; (b) the one to whom the debt or obligation runs, the obligee in suretyship, called the creditor; and (c) the one who agrees that the debt or obligation running from the principal to the creditor shall be performed, and who undertakes on his own part to perform it if the principal does not, called the surety.” Steams, Law of Suretyship § 1.4 (5th ed. 1951).
“ ‘The relation of suretyship grows out of the assumption of a liability at the request of another, and for his benefit.’ 74 Am. Jur. 2d, Suretyship § 7.” Nicklin v. Harper, 18 Kan. App. 2d 760, 767, 860 P.2d 31, rev. denied 253 Kan. 860 (1993).
“ ‘One of the generally recognized functions of a surety is to save the creditor from the inconvenience and delay of enforced collection from the principal.’ Simpson on Suretyship § 51, p. 263 (1950).” Nicklin, 18 Kan. App. 2d at 767. The surety’s liability is direct, and the surety contracts to perform the principal’s obligation. Hinchey, Surety’s Performance Over Protest of Principal: Considerations and Risks, 22 Tort & Ins. L.J. 133,134 (1986). This direct liability to perform the principal’s contract distinguishes a surety from a guarantor in that a guarantor answers only for the consequences of the defaults of the principal. Bomud Co. v. Yockey Oil Co., 180 Kan. 109, 115, 299 P.2d 72 (1956); see Steams, Law of Suretyship §§ 1.1, 1.5 (5th ed. 1951).
The Implied Duty of Good Faith and Fair Dealing
Good faith is typically implied in indemnity (surety) contracts. “Because of the potential for abuse by sureties, the [general indemnity agreement] will typically provide, or the court will imply as a condition of recovery, that the surety act reasonably or in good faith.” Surety’s Performance, 22 Tort & Ins. L.J. at 143 (citing Fidelity & Dep. Co. of Maryland v. Bristol Steel, 722 F.2d 1160, 1163 [4th Cir. 1983]; Commercial Union Ins. Co. v. Melikyan, 430 So. 2d 1217, 1221 [La. App. 1983]).
Additionally, Kansas courts imply a duty of good faith and fair dealing in every contract. Baptist, 253 Kan. at 724-26. The Baptist court noted that “ ‘if one exacts a promise from another to perform an act, the law implies a counterpromise against arbitrary or unreasonable conduct on the part of the promisee/ ” 253 Kan. at 725 (quoting 17A Am. Jur. 2d, Contracts § 380). Employment-at-will contracts are the only exception to the good faith obligation currently recognized in Kansas. Baptist, 253 Kan. at 726; see Morriss v. Coleman Co., 241 Kan. 501, 514-15, 518, 738 P.2d 841 (1987).
Hartford argues that an obligation of good faith should not be implied because good faith is stated as a condition in the bond application, and the application should control the rights and responsibilities of the parties. However, the only place that good faith is mentioned in the application is in paragraph “Second,” where it refers to payment. The remainder of the document gives total discretion to Hartford in making all decisions relative to claims and payment. The obligation of good faith and fair dealing on the part of the surety is implied and in a sense superimposed on the entire surety contract.
Good Faith Standard: Reasonableness
The issue then becomes what good faith standard should be used to determine the implied obligation of a surety seeking to enforce an indemnity agreement.
Hartford cites paragraph “Eleventh” as giving Hartford the exclusive right to make decisions regarding demands and that Hartford’s decision “shall be final, conclusive and binding” on Tanner.
“American courts have traditionally taken the view that competent adults may make contracts on their own terms, provided they are neither illegal nor contrary to public policy, and that in the absence of fraud, mistake or duress a party who has fairly and voluntarily entered into such a contract is bound thereby, notwithstanding it was unwise or disadvantageous to him. [Citation omitted]. Gradually, however, this principle of freedom of contract has been qualified by the courts as they were confronted by contracts so one-sided that no fair minded person would view them as just or tolerable.” Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 757, 549 P.2d 903 (1976).
Kansas follows the traditional rule that parties who are mentally competent may contract on their own terms unless the contract is illegal, contrary to public policy, or obtained by fraud, mistake, overreaching, or duress. Corral v. Rollins Protective Services Co., 240 Kan. 678, 681, 732 P.2d 1260 (1987). “A party who has entered into a contract is bound by it even though the contract may prove to be unwise or disadvantageous to him. [Citation omitted.]” Jarvis v. Jarvis, 12 Kan. App. 2d 799, 800, 758 P.2d 244 (1988) (holding that an agreement that limits the freedom of a party to choose an attorney is void and unenforceable as against public policy).
On a statutory mechanic’s lien bond, the court held “[t]he right of the surety company to be reimbursed for any money it has to pay out by reason of its having executed the bond as surety necessarily depends upon the terms of any agreement by which some one agreed to indemnify it for such loss, or to be the principal on such bond.” Lindenberger v. Zweifel, 124 Kan. 737, 741, 262 Pac. 538 (1928) (holding that a surety could not obtain a judgment against the indemnitor’s spouse because the surety did not have a contract with the spouse).
An exception to the freedom of contract principle has been recognized when a contract is so one-sided that it is found to be unconscionable. Corral, 240 Kan. at 681-82.
Where a contract is so one-sided that no fair-minded person would view it as just or tolerable, it is deemed unconscionable. Where a party uses a printed form or boilerplate contract which is skillfully drawn by the party in the strongest economic position, which establishes industry-wide standards offered on a take it or leave it basis to the party in a weaker economic position, the contract is unconscionable. See Wille, 219 Kan. at 758-59.
There is no published Kansas case addressing what the implied obligation of good faith requires of a surety seeking to enforce an indemnity agreement.
Cases from other jurisdictions suggest that the principal and surety relationship is one of debtor and creditor. See, e.g., Howard Johnson, Inc. of Florida v. Tucker, 157 F.2d 959, 962 (5th Cir. 1946). “The nature of an indemnitor’s liability under an indemnity contract shall be determined by the provisions of the indemnity agreement itself.” U.S. Fidelity & Guar. Co. v. Napier Elec., 571 S.W.2d 644, 646 (Ky. App. 1978); see Engbrock v. Federal Insurance Company, 370 F.2d 784, 786 (5th Cir. 1967) (interpreting Texas law); see also Commercial Union Ins. Co., 430 So. 2d at 1221 (distinguishing between surety contract and indemnity contract and noting that “[t]he contract of indemnity forms the law between the parties and must be interpreted according to its own terms and conditions”).
While an indemnification agreement is to be interpreted according to its terms, as noted above, an obligation of good faith is universally implied in those terms. See Fidelity, 722 F.2d at 1163-64; Surety’s Performance, 22 Tort & Ins. L.J. at 143. Jurisdictions disagree, however, as to what the good faith obligation requires of a surety seeking indemnification.
Some jurisdictions hold that the implied duty of good faith requires only an absence of fraud by the surety. See Surety’s Performance, 22 Tort & Ins. L.J. at 148-49. An “indemnitor may successfully attack payments made by the surety only by pleading and proving fraud or lack of good faith by the surety.” (Emphasis added.) Napier, 571 S.W.2d at 646.
Construing an indemnity provision, a Texas court held: “ ‘[W]e are confronted with the well-nigh inescapable conclusion that the parties to this bond [indemnity agreement] have lodged in the indemnitee a discretion limited only by the bounds of fraud.’ ” Hess v. American States Ins. Co., 589 S.W.2d 548, 551 (Tex. Civ. App. 1979) (quoting Central Surety & Insurance Corporation v. Martin, 224 S.W. 2d 773, 776 [Tex. Civ. App. 1949]). The contract in Hess, however, had a prima facie evidence clause. See 589 S.W.2d at 550; Fidelity and Deposit Co. v. Davis, 129 Kan. 790, 801, 284 Pac. 430 (1930).
In Davis, the court held that a “conclusive evidence” clause in an indemnification contract given by a principal to a surety was invalid because it violated public policy by making the court ministerial. The court noted that the clause ieft the court nothing to do but enter judgment in favor of the surety. 129 Kan. at 800-01.
The Davis case represents an historical reluctance to allow indemnitors to bargain away rights. It is also worth noting that many of the cases adopting the fraud standard in good faith determinations involve the interpretation of contracts containing prima facie or conclusive evidence clauses. See, e.g., Napier, 571 S.W.2d at 646; Hess, 589 S.W.2d at 550; Fidelity & Deposit Co. v. Wu, 150 Vt. 225, 228, 552 A.2d 1196 (1988).
The language in paragraph 11 of Hartford’s application, along with the language in the remainder of the document, gives Hartford total discretion in handling claims. Hartford’s actions are “final, conclusive and binding” on the principal and indemnitor. Such contract provisions hold Hartford tó no standard other than its own expediency. This court’s previous opinion in this case held that “[pjaragraph 11 of the present agreement has the same effect as a ‘conclusive evidence’ clause.” We hold that this language is contrary to public policy.
In the insurance context, in handling a claim for damages in excess of policy limits, “the insurer must conduct itself with the same degree of care which would be used by an ordinarily prudent person in the management of his or her own business affairs. [Citation omitted.]” Levier, 19 Kan. App. 2d at 979. Once an insurer steps into the negotiations between its insured and a claimant, the insurer may be liable for negligence in defending or settling the action. Levier, 19 Kan. App. 2d at 975.
Under Kansas law, certain surety bonds, such as banker’s blanket bonds, are held to create an insurance relationship. First Hays Banshares, Inc. v. Kansas Bankers Surety Co., 244 Kan. 576, 580, 769 P.2d 1184 (1989); see Docking v. National Surety Co., 122 Kan. 235, 240, 252 Pac. 201 (1927). These cases are instructive on the application of the reasonableness standard. See Rush Presbyterian St. Luke’s v. Safeco Ins. Co., 712 F. Supp. 1344, 1345-46 (N.D. Ill. 1989).
Thus, in comparing the analogous rules of insurance law and creditor and debtor law, the insurance rule adopting the reasonableness standard should be applied to suretyship agreements.
In City of Portland v. George D. Ward & Assoc., 89 Or. App. 452, 457, 750 P.2d 171, rev. denied 305 Or. 672 (1988), the court concluded that the surety “was bound by its implied covenant of good faith to exercise its discretion in compromising the claim so that the reasonable expectations of all the parties would be effectuated.” The Portland court noted:
“Parties to an indemnity agreement which subjects the right to compromise a claim against the principal to the sole discretion of the surety must reasonably expect that compromise and payment will be made only after reasonable investigation of the claims, counterclaims and defenses asserted in the underlying action. In order to prove lack of good faith in settling the claim, Management and the Wards needed only to prove that Amwest failed to make a reasonable investigation of the validity of the claims against them, or to consider reasonably the viability of their counterclaims and defenses, not that Amwest acted for dishonest purposes or improper motives.” 89 Or. App. at 457-58.
In J. F. White, 351 F.2d at 233, the court held that the bonding company’s recovery should be reduced or denied to the extent that it did not exercise reasonable diligence and precaution in permitting the completion of a construction project.
In Rush Presbyterian, 712 F. Supp. at 1346, the court noted that Illinois “requires only a showing of negligence in actions alleging the breach of a surety’s duty of good faith toward its insured, where the insured is obligated to indemnify the surety.”
However, in a Vermont case, negligence on the part of the surety in paying the claim did not reheve the indemnitor of the obligation to pay. See Wu, 150 Vt. at 230-31 (noting that “[a]t best, the jury could draw the conclusion that plaintiff was negligent in analyzing Atom’s bills — there was no evidence of lack of good faith for the jury” [Emphasis added.]).
In Resolution Trust Corp. v. Continental Cas. Co., 799 F. Supp. 77, 82 (D. Kan. 1992), the court interpreted two construction bonds and stated: “Under Kansas law, a surety bond is treated as a contract for insurance. [Citation omitted.]” This statement is overly broad and should be read within the factual context of the case. Under Kansas law, a banker’s blanket bond is treated as an insurance contract rather than a suretyship. First Hays Banshares, Inc., 244 Kan. at 580; Docking, 122 Kan. at 240.
In the first appeal of this case, this court held that “Hartford did have a duty to act in good faith.” This court held that “the reason1 ableness of the payments made by Hartford is a fact question that must be litigated.” This court instructed:
“Good faith/reasonableness as to the bond in the amount of $6,500, for example, should be factually evaluated in terms of the costs of appealing and litigating before Customs.
“In litigating the good faith/reasonableness issue, factual factors to be considered include the thoroughness of the investigation performed by the surety, the cooperation or lack thereof by Tanner, and the like. See Hinchey, Surety’s Performance Over Protest of Principal: Considerations and Risks, 22 Tort & Ins. L.J. 133, 149 (1986).
“Reversed and remanded for a factual determination of the extent of Tanner’s liability, if any, under the surety agreement. Hartford can recover only those reasonable payments made in good faith.”
On remand, the district court held: “The mandate from the Court of Appeals requires that defendant Tanner only has a duty to pay those amounts paid by Hartford in good faith and which were paid reasonably under the circumstances.”
“In dealing with good faith arguments against lenders by borrowers, we have stated the test of good faith is subjective and requires only honesty in fact. [Citation omitted.]” Daniels v. Army National Bank, 249 Kan. 654, 658, 822 P.2d 39 (1991) (holding bank did not breach its duty of good faith and fair dealing by failing to inspect home under construction while borrowers were away).
The facts of this case present compelling reasons why a surety should be held to a standard of reasonableness. Thus, we agree with those cases that hold that the implied covenant of good faith requires a surety seeking indemnification to show that its conduct was reasonable.
It is recognized that “the surety’s investigation is ‘standard practice’ in the industry.” Trecker, Ott, and Case, The Agreement of Indemnity — The Surety’s Handling of Contract Bond Problems: Administration and Resolution of Performance Bond and Payment Bond Claims, in The Agreement of Indemnity — Practical Applications by the Surety 7-8 (ABA 1990). Hartford did not conduct a thorough investigation. Hartford simply paid the claims and sought indemnification.
Hartford made no attempt to mitigate the claims. Equally important, Hartford made the payment of $58,365 after Tanner filed a petition of protest and Tanner’s attorney had told Hodges that no action was required for at least 18 months. These payments by Hartford had the practical effect of eliminating Tanner’s ability to raise any defenses to the claims of Customs or to reopen the case. Allowing the surety’s indemnification contract to be enforced, absent fraud, leaves the principal and indemnitor at the mercy of the surety’s unreasonable conduct. See City of Portland, 89 Or. App. at 457-58.
Substantial Competent Evidence
Hartford questions whether the district court’s findings of facts “are supported by substantial competent evidence and whether they are sufficient to support the trial court’s conclusions of law.” Levier, 19 Kan. App. 2d at 979.
“Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]” Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993).
The district court found that Hartford did not act reasonably in paying the full amount demanded by Customs on the bonds. It is clear that this finding is supported by substantial competent evidence. Specifically, an attorney familiar with the relevant practices of Customs testified that Hartford did not act reasonably in paying either claim. This was considered in conjunction with the fact that when Hartford filed a protest petition on the $27,000 bond, it was required to pay nothing.
Under the reasonableness standard applied by the district court, Hartford clearly cannot recover the entire amount paid. Hartford, on appeal, argues that it should be able to recover at least an amount that is reasonable.
Tanner’s witness, Susan Kohn Ross, testified that the range of mitigation for the claim of Customs against Hartford would have been 10 to 25 percent. Hartford reasons that even if it had conducted itself in accordance with the reasonableness standard, it would still have been required to pay 10 to 25 percent of the original assessment — between $6,487.65 and $16,219,13. Hartford thus argues that the district court’s finding that none of the amount paid by Hartford to Customs was reasonable is not supported by the record.
Arguing that the district court’s verdict is supported by competent evidence, Tanner points to the events surrounding the claim of Customs against a third bond for $27,000. On this bond, Hartford protested, delayed payment, and the statute of limitations expired, resulting in a complete release of liability. Tanner reasons that “if Hartford had only repeated this course of conduct with the other two virtually identical bonds, they would have been completely released from liability.”
The district court stated: “The Court further finds Mr. Hodges had a conversation with Customs regarding a third bond for $27,000 and sent a letter petitioning for release from Hartford’s bond due to the fact the converter’s records had been seized. This was not done in this case and could have been.”
The record thus contains evidence that the claims herein could similarly have been mitigated to nothing. Hartford argues that Tanner’s contention that Customs would have allowed the statute of limitations to expire is pure speculation. Hartford argues that the $27,000 bond was unique and that the statute of limitations had not expired on the other two bonds. Hartford’s payment of the claims, however, eliminated any chance that the statute of limitations might expire on the other bonds.
The district court did not make the specific finding that if Hartford had acted reasonably, the Customs claim would have been mitigated to nothing. Tanner argues that this is a reasonable inference that may be drawn from the evidence. Tanner also argues that because Hartford did not object to the district court’s findings, “this Court cannot deem the findings below to be reversible error.”
“A litigant must object to inadequate findings of fact and conclusions of law in order to give the trial court an opportunity to correct them. In the absence of an objection, omissions in findings will not be considered on appeal. Where there has been no such objection, the trial court is presumed to have found all facts necessaiy to support the judgment. [Citation omitted.]” Galindo v. City of Coffeyville, 256 Kan. 455, 467, 885 P.2d 1246 (1994).
The district court found that Hartford’s actions were unreasonable and allowed it nothing on the payment of the bonds. It further assessed costs to Hartford. The question is whether allowing nothing to Hartford on the bonds was supported by substantial competent evidence. See Tucker, 253 Kan. at 378 (holding that the district court’s failure to set out the mathematical procedure used to arrive at its decision was not reversible error because the appellant failed to object to the findings at the district court level).
Evidence of the potential disposition of the two claims, had they been handled through a protest petition, is speculative. As such, it is impossible to determine what amounts might have been assessed as damages because the estimates range from zero to the foil amount paid. See Tucker, 253 Kan. at 377. It appears that the district court chose to believe that the assessment would have been zero.
This court ruled in the first appeal: “Hartford can recover only those reasonable payments made in good faith.” Because Hartford offered no evidence on the amount that would have been assessed had the claims been protested, investigated, and negotiated, the court was left with no basis for a decision other than denying the claim in its entirety. It was Hartford’s responsibility to present such evidence.
Because the district court found that the payments were not made in good faith and Hartford presented no evidence on the amount that would have been paid had they acted reasonably and in good faith, nothing is recoverable by Hartford.
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Lewis, J.:
In 1990, the protagonists in this lawsuit entered into a written construction agreement. Defendants Jim Erickson, d/b/a Bullock Garages and Bullock Garages, Inc., agreed to build a new garage for plaintiffs, Larry and Connie Beeson, to enclose the old detached garage face with a wall, a door, and a window, and to pour a new concrete driveway to replace a gravel drive. Plaintiffs specifically asked defendants to construct the driveway in such a manner as to direct water away from the house.
Defendants completed the work. Two years later, plaintiffs found water flooding their basement. The water ruined their carpet, linoleum, paneling, and the sheetrock in a renovated room.
After an exchange of letters, plaintiffs sued defendants for damages, claiming defendants were negligent in that they “altered the drainage and plugged the drain tile around the residence of the Plaintiffs.”
After the matter was tried, the trial court entered judgment in favor of plaintiffs, finding that defendants were negligent in crushing a drain tile located under the driveway and in failing to make the driveway slope in such a manner as to direct water away from the house. The court then awarded plaintiffs the sum of $6,247.92. All of the damages were caused during the performance of the parties’ agreement.
The agreement between the parties contained the following clause:
“Customer agrees that in the event Bullock must enforce or defend Bullock’s rights under this contract, or any matters relating thereto, that Bullock may, at Bullock’s option, choose to arbitrate any controversy or claim arising out of or relating to this contract, or the breach thereof, before the Better Business Bureau’s arbitration system, the American Arbitration Association or any other nationally recognized arbitration association. Customer hereby agrees to submit to binding arbitration as provided herein if Bullock so elects and judgement sic upon the award rendered by the arbitrator(s) may be entered in any appropriate Illinois court. Customer further agrees to put the entire purchase price of this contract into escrow with the arbitrator(s) selected before arbitration begins.”
Defendants argued at the trial level and on appeal that the contractual provision set forth above should have been enforced and that the matter should have been referred to arbitration. They suggest that plaintiffs should not have been permitted to assert tort theories in a contract case. They also maintain that liability was imposed upon them under the tort cause of action for violation of a duty which was expressly negated by the contract.
The trial court refused to refer the matter to binding arbitration on the grounds that plaintiffs’ action was framed in tort and that under Kansas law, there can be no mandatory arbitration of an action sounding in tort. The trial court apparently did not deal with defendants’ contractually based defenses.
Plaintiffs do not assert that the arbitration clause in the agreement between the parties was against public policy or unconscionable. They take the position on appeal that they can nullify the arbitration clause by pleading a cause of action in tort. They also argue that defendants have waived the right to enforce their contractual right to arbitration.
Both parties raise claims of error. For reasons that will become obvious, we focus on the arbitration issue.
WAIVER
Plaintiffs argue that defendants waived their right to invoke the arbitration clause in the agreement. They base this claim on the fact that defendants were tardy in asserting their arbitration rights. We disagree.
We do not dispute the fact that a right to arbitration may be waived. This principle was recognized by this court in D.M. Ward Constr. Co. v. Electric Corp. of Kansas City, 15 Kan. App. 2d 114, 803 P.2d 593 (1990), rev. denied 248 Kan. 994 (1991), and by our Supreme Court in Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 751 P.2d 122 (1988). In Jackson Trak, the Supreme Court said: “To be construed as waiving the right to arbitrate, the party’s conduct must unequivocally demonstrate the intent to waive.” 242 Kan. 683, Syl. ¶ 2.
In this case, plaintiffs maintain defendants’ waiver arises because defendants took no steps regarding arbitration until after suit was filed. That is an accurate statement of the facts. However, the record also shows that defendants raised their right to arbitration in their answer and that they thereafter objected to the trial court’s denial of motions to compel arbitration and otherwise pursued the issue throughout the litigation.
We have read the record, and the defendants’ conduct on the issue of arbitration unequivocally demonstrates their intent to rely on and insist upon enforcing their right to arbitration.
There is no substantial competent evidence in the record that defendants waived their right to arbitrate. The issue was timely raised at the time the suit was filed and was pursued by defendants thereafter. We hold there was no evidence that defendants waived the right to enforce mandatory arbitration under their agreement with plaintiffs.
ARE PLAINTIFFS’ TORT CLAIMS MAINTAINABLE?
We agree that plaintiffs’ petition in this case is framed upon a tort theory. The term used in the petition to describe defendants’ misconduct is negligence, which is a tort concept and a tort term. We do not disagree that the legal semantics employed in drafting plaintiffs’ petition pleads a cause of action in tort. We do conclude, however, that under the circumstances shown in this action, plaintiffs should not have been permitted to maintain an action in tort.
The parties all agree that the Kansas Uniform Arbitration Act is applicable. We note that the term “uniform” is a misnomer when it is applied to the Kansas Act, which indeed is not uniform at all with the “uniform acts” in place in most of our sister states.
The key provisions of the Kansas Act are found in K.S.A. 1995 Supp. 5-401(b) and (c) and read as follows:
“(b) Except as provided in subsection (c), a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable except upon such grounds as exist at law or in equity for the revocation of any contract.
“(c) The provisions of subsection (b) shall not apply to . . . (3) any provision of a contract providing for arbitration of a claim in tort.” (Emphasis added.)
The Kansas Act clearly prohibits parties from enforcing a contractual provision to arbitrate a claim in tort. The trial court seized upon this provision of the Kansas Act to declare that arbitration was unavailable in this case since plaintiffs’ cause of action sounded in tort. In exempting tort actions from its arbitration provisions, the Kansas Act differs from the Uniform Arbitration Act and the Federal Arbitration Act. Under both the Uniform Arbitration Act and the Federal Arbitration Act, a contractual provision to arbitrate applies regardless of whether the action sounds in tort or in contract. R.J. Palmer Constr. Co. v. Wichita Band Instrument Co., 7 Kan. App. 2d 363, 365, 642 P.2d 127 (1982).
Indeed, it appears to us that under R.J. Palmer, this action may have been one where “commerce” was involved. If that is true, then the Federal Act would have preempted the Kansas Act and would have applied, and the tort exception would not exist. This particular proposition was not raised by the parties, and we note it now only in passing.
At one time, only Kansas and Arkansas exempted tort actions from their “uniform arbitration acts.” See Fowks, So You Thought You Knew What a Tort WasP, 49 J.K.B.A. 31 (1980). It is possible that other states have joined this select group in the past several years, but we have not extended our research in that direction.
All of this is relevant to the issue which we must decide. Plaintiffs were aware of the arbitration clause in the contract and were equally aware of the tort exception set forth in the Kansas Uniform Arbitration Act. Plaintiffs did not desire to become involved in arbitration, so they framed their petition in tort in order to nullify the arbitration clause in their agreement with defendants. Plaintiffs’ counsel candidly admitted as much in oral argument to this court. We do not fault plaintiffs for the decision or for their strategy. They made an educated and calculated decision to avoid arbitration by deliberately framing their action in tort, which they knew to be excepted from mandatory arbitration in Kansas.
The question we must answer is whether a plaintiff may bring an action which arises out of the performance of a contract and call it a tort action, thereby rendering the mandatory arbitration clause in an agreement null and void? We conclude that such an attempt must fail.
In reaching our decision, we do not wish to engage in a theoretical debate about the aesthetics of pleading and procedure. A tort action can just as easily be a contract action, and a contract action can become, through the judicious use of the right words, a tort action. This is another way of saying that in the law, a rose may not always be a rose.
We wish to approach this issue from a “real world” context, or at least as close to that as we can get in the law. This agreement in plain terms permits the defendant to refer to arbitration “any controversy or claim arising out of or relating to this contract.” This is a valid clause, and we believe it should not be nullified by legal semantics. There is no question that plaintiffs claims against defendants arose out of and are related to the contract. The damages plaintiffs claimed and recovered were caused by defendants in the process of doing construction work under a written agreement. Plaintiffs claim, and the trial court found, that defendants failed to slope the driveway properly and that they negligently crushed an underground drain tile when pouring the new driveway, both of which acts led to the flooding of plaintiffs’ basement. These actions of defendants were all performed while they were attempting to fulfill their written agreement with plaintiffs. Plaintiffs now want to call those acts negligent. They may have been, but they also arose out of and relate to the contract in question. Defendants’ actions which caused damages to plaintiffs breached their agreement or breached the implied covenants of that agreement. To simply assert that these actions were also “torts” begs the question. Can defendants’ rights be so easily altered when their rights arise from and rest upon a written agreement assented to by plaintiffs? We do not think so.
Do defendants have a right to insist that the agreement be enforced as written and that we not resort to legalistic words and concepts to render portions of the agreement unenforceable? We believe that they do. ‘When a contract is clear and unambiguous and no claim of fraud or overreaching is made and there is no claim that the agreement is unconscionable, it will generally be enforced as written.” Estate of Bryant v. All Temperature Insulation, Inc., 22 Kan. App. 2d 387, Syl ¶ 3, 916 P.2d 1249, rev denied 260 Kan. 992 (1996). “The policy of the law in general is to permit mentally competent parties to arrange their own contracts and fashion their own remedies where no fraud or overreaching is practiced. Contracts freely arrived at and fairly made are favorites of the law.” Kansas City Structural Steel Co. v. L. G. Barcus & Sons, Inc., 217 Kan. 88, 95, 535 P.2d 419 (1975).
In the real world, plaintiffs’ action arose out of and was based upon defendants’ obligations under the contract. Only in the somewhat unrealistic world of theoretical legal pleading can a contract action become a tort action through the judicious use of legalistic semantics. We reject that course of action and conclude that plaintiffs may not plead their contract action as a tort action and thereby escape the provisions of a bargain with which they are unhappy.
This exact issue has not been decided in the context in which we now deal. There are decisions, however, which point us in this direction.
We begin with Isler v. Texas Oil & Gas Corp., 749 F.2d 22 (10th Cir. 1984). In that case, Texas Oil and Gas Corporation (TXO) had farmed out certain oil and gas leases to Isler. The farm-out agreement bound TXO to use only “its best efforts” to make delay'rental payments and to give Isler notice if it decided to cease payments. TXO failed to make the required delay rental payments and failed to notify Isler that it had ceased to make the payments. Isler sued TXO in tort for negligence. The jury found that TXO did not violate its farmrout agreement but held it liable in tort for negligence in failing to make the payments. The 10th Circuit reversed, holding that Isler would hot be permitted to pursue a tort claim, which would basically nullify his agreement with TXO:
“The very notion of contract is the consensual formation of relationships with bargained-for duties. An essential corollary of the concept of bargained-for duties is bargained-for liabilities for failure to perform them. Important to the vitality of contract is the capacity voluntarily to define the consequences of the breach of a duty before assuming the duty.
“This case is illustrative. The effect of confusing the concept of contractual duties, which are voluntarily bargained for, with the concept of tort duties, which are largely imposed by law, would be to nullify a substantial part of what the parties expressly bargained for — limited liability. Unless such bargains are against public policy (covered either by prohibitory statutes or well-defined, judge-made rales such as unconscionability), there is no reason in fact or in law to undermine them. Indeed, it would be an unwarranted judicial intrusion into the marketplace. No reason appears to support such a radical shift from bargained-for duties and liabilities to the imposition of duties and liabilities that were expressly .negated by the parties themselves when they decided to abandon their status as legal strangers and define their relationship by contract. Tort law proceeds from a long historical evolution of externally imposed duties and liabilities. Contract law proceeds from an even longer historical evolution of bargained-for duties and liabilities. The careless and unnecessary blanket confusion of tort and contract would undermine the carefully evolved utility of both.
“In tort, the legislatures and the courts have set the parameters of social policy and imposed them on individual members of society without their consent. The social policy in the field of contract has been left to the parties themselves to determine, with judicial and legislative intervention tolerated only in the most extreme cases. Where there has been intervention it has been by the application of well established contract doctrines, most of which focus on threats to the integrity of the bargaining process itself such as fraud or extreme imbalance in bargaining power.
“Further, it should not matter whether the breach of a bargained-for duty arises from inattention, a disagreement over the existence of the duty, a dispute over the nature of the duty, an inability to perform the duty, or a simple unwillingness to perform the duty. The parties by contract (or in the absence of an express provision, by implied rules evolved under contract analysis) have themselves defined the consequences of the breach. In the marketplace of contract, a breach is a breach is a breach — unless the parties choose to specify otherwise.
“The facts in the case at hand are clearly within the scope of the contract principles reaffirmed by the New Mexico Supreme Court in die Rio Grande decision. Just as in that case, the facts alleged in plaintiffs’ tort claim are precisely the same as those alleged in their contract claim. Because the contract specifically defined the rights and duties of the parties regarding rental payments and notice, thereby precluding any extracontractual tort duty regarding such payments, we must reverse the judgment for plaintiffs sounding in tort.” (Emphasis added.) 749 F.2d at 23-24.
The instant matter has aspects very similar to Isler. In this case, the agreement between the parties provides:
“BULLOCK ASSUMES NO RESPONSIBILITY FOR:
“4. Any damage to septic tanks, underground utility lines, pipes or similar things, including, but not limited to, gas lines, pipes, telephone cables, t.v. cables, radio cables, electric and power lines.” (Emphasis added.)
Defendants argue that under this clause they assumed no responsibility for damages to such items as the crushed underground drain tile. This appears to be a reasonable construction of the clause on the part of defendants. The trial court, however, found that defendants were negligent in crushing the underground drain tile. As in Isler, it appears that this action on the part of defendants may not have been a breach of its agreement with plaintiffs but may have veiy well been negligent if one applies a tort theory to the facts. This issue was raised by defendants in their trial brief and is raised on appeal, but it apparently was not seriously considered by the trial court. It must be determined whether the crushing of the drain tile was a breach of duty under the agreement.
This judgment must be reversed if for no other reason than to assess whether defendant is liable for crushing the underground drain tile. A fair reading of the agreement of the parties leads one to conclude that defendants’ actions in crushing the underground drain tile may not have been a breach of their agreement with plaintiffs. This is exactly the situation that existed in Isler. Defendants were not permitted to use this defense apparently because the suit was framed as an action in tort. Allowing plaintiffs to treat their contract action as a tort action imposed liabilities on defendants which may be beyond those for which they bargained. This is not permissible and is reversible under the rationale set forth in Isler.
The next significant case is Ford Motor Cred. Co. v. Suburban Ford, 237 Kan. 195, 699 P.2d 992, cert. denied 474 U.S. 995 (1985). In that case, the parties’ relationship was purely contractual in nature. Difficulties arose, and the matter ended up in court. As part of its defense, Suburban Ford asserted 11 different counterclaims which were framed in tort. The jury returned a verdict in favor of Suburban Ford on those counterclaims and awarded it a punitive damage judgment of $1,750,000. Our Supreme Court reversed the judgment in favor of Suburban Ford, holding that the trial court had erred in even instructing the jury on plaintiffs’ tort theory of liability. The court relied extensively on the decision in Isler in reaching its conclusions. We believe that the key to the Suburban Ford decision is the following statement: “It should be emphasized that all parties to this action were in a contractual relationship with each other, and their difficulties with each other arise directly from that contractual relationship.” 237 Kan. at 203. That statement could be made with equal confidence in the instant matter.
There has been some debate over the years about just what Suburban Ford stands for and what it means. See Rossi, Lender Liability in Kansas: A Paradigm of Competing Tort and Contract Theories, 29 Washburn L.J. 495, 516-46 (1990). We believe, however, that Suburban Ford stands for the proposition that a contract action cannot become a tort action by simply saying so. It stands for the proposition that when parties’ difficulties arise directly from a contractual relationship, the resulting litigation concerning those difficulties is one in contract no matter what words the plaintiff may wish to use in describing it. We rely on Suburban Ford in reversing this judgment in favor of defendants.
We believe that Suburban Ford stands for real world reality above legal semantics. This is a principle which we utilize in the instant matter. In this case, the plaintiffs’ lawsuit arose from the contractual relationship between the parties. It could have been filed as an action for a breach of contract, and we conclude that one cannot change the nature of the action merely by using words to make it sound like a tort action, particularly when doing so interferes with the substantial rights of the other contracting party.
In L.R. Foy Constr. Co. v. Professional Mechanical Contractors, 13 Kan. App. 2d 188, 766 P.2d 196 (1988), this court dealt with the negligence/contract issue in the context of claim preclusion. In Foy, the parties had been to arbitration and defendant had prevailed. Plaintiff then sued defendant for the same actions, calling defendants’ misconduct tortious. Plaintiff argued that its tort claims were not precluded by the arbitrator’s decision on their contract claims. We held the action was barred by claim preclusion and said:
“Foy attempts to avoid the application of claim preclusion by asserting that identity in the cause of action is lacking. Foy reasons that its present claims sound in tort and that these tort claims have not previously been litigated since tort claims may not, under K.S.A. 1987 Supp. 5-401, be arbitrated.
“A claim in tort arises when a party violates some duty imposed on him by law. In the present case, PMC owed Foy no duties except those defined in the contract between them. PMC’s liability, if any, for its alleged failure to perform its contractual duties lies solely in contract. See Ford Motor Cred. Co. v. Suburban Ford, 237 Kan. 195, 203-04, 699 P.2d 992, cert. denied 474 U.S. 995 (1985)...; Isler v. Texas Oil & Gas Corp., 749 F.2d 22, 24 (10th Cir. 1984) . . . .” (Emphasis added.) 13 Kan. App. 2d at 194-95.
We went on to say: “We conclude that the only claims Foy has against PMC sound in contract, not tort.” 13 Kan. App. 2d at 195. We conclude the only claims plaintiffs in this case have against defendants sound in contract and not in tort.
In Atchison Casting Corp. v. Dofasco, Inc., 889 F. Supp. 1445 (D. Kan. 1995), the federal district court said:
“Defendant cites lsler v. Texas Oil & Gas. Corp., 749 F.2d 22 (10th Cir. 1984), and various cases following it, for the proposition that plaintiff’s misrepresentation claims are not actionable. See also [Ford Motor Cred. Co. v. Suburban Ford, 237 Kan. 195, 203, 699 P.2d 992, cert. denied 474 U.S. 995 (1985)]; [L.R. Foy Constr. Co. v. Professional Mechanical Contractors, 13 Kan. App. 2d 188, 194-95, 766 P.2d 196 (1988)]; Woodmont Corp. v. Rockwood Ctr. Partnership, 858 F. Supp 158, 160 (D. Kan. 1994); Smith v. Hawkeye-Security Ins. Co., 842 F. Supp 1373, 1375 (D. Kan. 1994). These various cases hold that the existence of a contractual relationship bars the assertion of tort claims covering the same subject matter governed by the contract. See, e.g., Smith, 842 F. Supp. at 1375. They distinguish claims in tort, which arise when a party violates some duty imposed by law, and contractual duties, which are defined by the parties’ agreement [citation omitted] and find that tort duties may not be imposed where die party’s duties and rights are specifically defined by contract. [Citations omitted.] (‘The point in Isler is that a party cannot have a tort duty when the party’s same duties and rights are specified by contract.’). Where the parties contemplate a remedy in the event of breach, and the provisions of the contract cover the consequences of default, the bargained-for existence of a contractual remedy displaces the imposition of tort duties. [Citation omitted.]” (Emphasis added.) 889 F. Supp. at 1461.
In the context in which we deal, the only claims plaintiffs had against defendants sound in contract and not in tort. Plaintiffs’ action is framed in tort to take advantage of the Kansas Uniform Arbitration Act and avoid compulsoiy arbitration under the agreement of the parties. This is not greatly different from the attempt to have two bites out of the same apple in Foy by first losing the contractual claims in arbitration and then refiling the same action as a tort. It did not work in Foy, and it will not work here.
We have applied the logic of the cases cited in this opinion to the case under consideration. That application causes us to hold as follows:
(1) Plaintiffs’ causes of action against defendants arise out of and are related to their written contractual agreement.
(2) Plaintiffs are permitted to pursue an action against defendants under the contract but not in tort.
(3) The trial court erred in allowing plaintiffs to proceed on a “tort” theory which nullified the compulsory arbitration clause in the parties’ agreement.
(4) The trial court erred in allowing plaintiffs to claim that defendants were liable in tort for negligently crushing an underground drain tile and then in finding that the crushing of such tile was the cause of plaintiffs’ damages. This was error because under the agreement of the parties, defendants may not have been responsible for any damages in crushing the underground drain tile, and a party may not be held responsible for an action in tort when that action is either permitted by the agreement or is, at least, not a breach of the agreement.
• (5) The trial court erred in refusing to refer the matter to compulsory arbitration.
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Worden, J.:
Sometime prior to February 1,1992, the appellant James Snyder contracted with the appellee Fee Insurance Agency, Inc., for insurance on a new restaurant. The appellant claimed and represented to the appellee that he was a stockholder and acting on behalf of E. A. Epperly, Inc., which owned the restaurant.
The appellee financed the appellant’s insurance premium. The appellant did not pay the appellee for the coverage provided.
The appellee filed a limited action lawsuit against E. A. Epperly, Inc., Elizabeth Epperly, and the appellant in Reno District Court for a debt of $2,351.87 owing for insurance.
Based on the affidavit of Mary Trock, the register of deeds for Reno County, the articles of incorporation of E. A. Epperly, Inc., were never recorded with the office of the register of deeds.
At trial, appellant claimed a corporate shield defense to the action. The court ruled: “Defendant claims a corporate shield, but the Articles of Incorporation for E. A. EPPERLY, INCORPORATED, were never filed in the Reno County Register of Deeds office. Absent the corporate shield, there is no defense to this ac tion.” It granted judgment against defendant in the sum of $2,351.87.
The question before this court is whether the district court erred in ruling that the defendant was not protected by a corporate shield because the articles of incorporation were not recorded with the register of deeds. This issue has not been addressed since State ex rel. McCain v. Construction Enterprises, Inc., 6 Kan. App. 2d 627, 631 P.2d 1240 (1981). The statute controlling this issue has been amended since the McCain decision. We must determine whether the articles of incorporation must be filed with the register of deeds before corporate existence begins.
“Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
Prior to July 1, 1987, K.S.A. 1986 Supp. 17-6003(d) provided:
“Any instrument filed in accordance with subsection (c) of this section shall be effective upon its filing date except that if the instrument is not recorded in accordance with paragraph (5) of subsection (c) within 20 days after its fifing date, the instrument shall not take effect until it is so recorded and the recording fee to be collected by the register of deeds shall be increased by 25%. Any instrument may provide that it is not to become effective until a specified date subsequent to its fifing date, but such date shall not be later than 90 days after its fifing date.”
In 1987, this statute was amended to read as follows:
“Any instrument filed in accordance with subsection (c) shall be effective upon its fifing date except that if the instrument is not recorded in accordance with paragraph (5) of subsection (c) within 20 days after its fifing date, the recording fee to be collected by the register of deeds shall be increased by 25%. Any instrument filed in accordance with subsection (c) during the period from, January 1,1986, through June 30,1987, shall be deemed to be effective upon its filing date, unless a different effective date was specified for the instrument in accordance with this subsection, if the instrument was recorded in accordance with paragraph (5) of subsection (c) during such period but was not recorded within 20 days after the filing date. Any instrument may provide that it is not to become.effective until a specified date subsequent to its fifing date, but such date shall not be later than 90 days after its fifing date.” L. 1987, ch. 89, § 1, p. 541.
“When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.” Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990). Based on the language of the amendment, it appears that the legislature intended to make the articles of incorporation effective upon filing with the Secretary of State.
K.S.A. 17-6003 states in relevant part:
“(c) Whenever any provision of this act requires any instrument to be filed with the secretary of state or in accordance with this section or act, such requirement means that:
(5) the duplicate copy of the instrument so certified by the secretary of state shall be recorded in the office of the register of deeds of the county in which the corporation’s registered office in this state is, or is to be, located.”
In State ex rel. McCain v. Construction Enterprises, Inc,, 6 Kan. App. 2d 627, this court found that no corporation existed until the articles of incorporation were filed with the Secretary of State and recorded in the office of the register of deeds of the county in which the corporation’s registered office is located. That case, although it interprets 17-6003(c)(5), was decided before the 1987 amendments to 17-6003(d).
“ ‘[T]he legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ [Citation omitted.]” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992).
The statutes now provide that upon properly filing the articles of incorporation with the Secretary of State, they are effective upon such date regardless of whether they are recorded with the register of deeds. However, if articles of incorporation are not recorded within 20 days of the filing, the recording fee increases.
Further, K.S.A. 17-6006 states:
“Upon the filing with the secretary of state of the articles of incorporation, executed, acknowledged and filed in accordance with K.S.A. 17-6003, the incorporator or incorporators who signed the certificate, and his or their successors and assigns, shall be and constitute a body corporate from the date of such filing by the name set forth in the articles, subject to the provisions of subsection (d) of K.S.A. 17-6003 and subject to dissolution or other termination of its existence as provided in this act.”
Defendant relies on two letters, one from the Deputy Assistant Secretary of State and one from the Securities Commission, for his assertion that the articles of incorporation are effective upon filing with the Secretary of State’s office. Neither letter was provided to the trial court.
In this case, neither party disputes that the articles of incorporation were properly filed with the Secretary of State. There is, however, no evidence in the record on appeal indicating the date on which they were filed.
If the articles of incorporation were filed prior to January 1, 1986, then the old statute would have been in effect and, because appellant did not file with the register of deeds, the articles of incorporation would not have taken effect and no corporation would exist.
The amended statute states in part:
“Any instrument filed in accordance with subsection (c) during the period from January 1,1986, through June 30, 1987, shall be deemed to be effective upon its filing date ... if the instrument was recorded in accordance with paragraph (5) of subsection (c) during such period but was not recorded within 20 days after the filing date.” K.S.A. 17-6003(d).
If the articles of incorporation were filed prior to June 30, 1987, the corporate existence could not begin until they were filed with the register of deeds. On the other hand, if they were filed after that date, corporate existence begins upon the date of filing with the Secretary of State.
There is no evidence in the record as to when the articles of incorporation were filed. We are thus unable to determine when corporate existence began in this case.
The case is remanded to the trial court with directions to determine when the articles of incorporation were filed with the Secretary of State. If they were filed after June 30, 1987, corporate existence began on the date of filing, and the corporate shield defense is viable.
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Marquardt, J.:
Charles D. Turner appeals the district court’s use of a presentence investigation report from a prior conviction when imposing sentence and the trial court’s order of restitution on dismissed charges.
On January 3,1994, Turner pled no contest to credit card fraud. The district court issued a 10-month sentence and placed Turner on probation for 24 months. While on probation, Turner was charged with four counts of forgery. Turner pled guilty to two counts in exchange for dismissal of the remaining two.
After Turner entered his plea, the State and Turner requested that the court use the presentence investigation report which had been submitted in Turner’s prior credit card fraud case. The district court asked Turner if he was waiving his right to the production of a new presentence investigation report, and Turner responded affirmatively. A new presentence investigation report would not have changed anything in Turner’s criminal history.
The district court revoked Turner’s probation and ordered him to serve the 10-month sentence on his prior conviction. Turner received two concurrent 15-month sentences on the felony forgery convictions. The district court ordered these sentences to run consecutive to the 10-month sentence on the credit card fraud conviction.
At the State’s request, the trial court ordered restitution on all four forgeiy charges despite Turner’s argument that such an order would be unlawful. Turner appeals.
Turner argues that the district court erred in using the presentence investigation report from the previous conviction rather than ordering that a new report be prepared. This is an issue of statutory interpretation, which is a question of law, and this court’s review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
K.S.A. 21-4714(a) provides that “[t]he court shall order the preparation of the presentence investigation report by the court services officer as soon as possible after conviction of the defendant.” “The criminal history worksheet will not substitute as a presentence report.” K.S.A. 21-4714(d). A court can, however, “take judicial notice in a subsequent felony proceeding of an earlier presentence report criminal history worksheet prepared for a prior sentencing of the defendant for a felony committed on or after July 1, 1993.” K.S.A. 21-4714(f).
Even if these statutes, taken together, required the production of a new presentence investigation report, Turner expressly waived this right at sentencing. On appeal, Turner does not challenge the accuracy of the sentencing court’s calculations of his criminal history or his crime severity level. In State v. Korbel, 231 Kan. 657, 663-64, 647 P.2d 1301 (1982), the court found that the trial court erred by failing to order a presentence investigation report, as required by statute, but held that the error was harmless, under the circumstances of the case, because the report would not have affected the sentence.
Here, Turner expressly waived his right to the production of a new report. On appeal, Turner fails to state that he did suffer or might have suffered any prejudice due to the sentencing court’s use of the prior report. Turner does not contend that the report inaccurately represented his criminal history or that his crime severity level was miscalculated. Thus, Turner has failed to demonstrate that any prejudice resulted from the sentencing court’s use of the prior report. Turner’s argument is without merit.
Turner also argues that the district court erred in ordering restitution on the dismissed charges. This is also an issue of statutory interpretation, and this court’s review is unlimited. Foulk, 20 Kan. App. 2d 277, Syl. ¶ 1.
K.S.A. 21-4603(b) provides, in part:
“[W]henever any person has been found guilty of a crime, the court may adjudge any of the following:
“(1) Commit the defendant to the custody of the secretary of corrections or, if confinement is for a term less than one year, to jail for the term provided by law;
“(4) suspend the imposition of the sentence subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution. . . .
“(5) assign the defendant to a community correctional services program subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
“(9) impose any appropriate combination of subsections (b)(1) through (b)(8).”
In State v. Ball, 255 Kan. 694, 698, 877 P.2d 955 (1994), Ball pled guilty to some of the charges against him; however, in the plea agreement, Ball agreed to pay restitution on all of the charges, including those that were dismissed. The Ball court held that the statutory language in K.S.A. 21-4603 did not prohibit the court, under the circumstances, from imposing restitution for offenses that had- been dismissed pursuant to a plea agreement. 255 Kan. at 699.
A number of jurisdictions have construed their criminal restitution statutes as limiting restitution orders to offenses that the accused has admitted committing; where the accused has been found guilty; or where the accused has agreed to pay restitution. See State v. Blanchard, 270 Mont. 11, 16-17, 889 P.2d 1180 (1995).
In State v. Wolff, 438 N.W.2d 199, 201-02 (S.D. 1989), it was held that the trial court violated the defendant’s due process right to a knowing and voluntary plea by ordering restitution on dismissed charges without informing the defendant of the possibility of such an order when accepting a guilty plea on another charge. In People v. Chabeear, 163 Cal. App. 3d 153, 155-56, 209 Cal. Rptr. 218 (1984), the court explained that a restitution order based solely on a dismissed criminal complaint fails to satisfy the due process requirements inherent to a proper adjudication of the lawful ownership of property.
In this case, the court had competent evidence on which to issue its order of restitution. Turner neither agreed to pay restitution on the dismissed charges nor admitted to the allegations in the dismissed charges; however, K.S.A. 21-4610(d)(l) does not limit the court’s authority to order restitution on crimes to which a defendant did not plead.
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Lewis,J.:
In 1994, defendant entered a plea of nolo contendere to a charge of attempted robbeiy. Accordingly, he was found guilty and sentenced to 24 months’ imprisonment. He was then placed on probation from the terms of the sentence. Defendant subsequently violated probation and was ordered incarcerated. Defendant appeals from the order terminating his probation.
Defendant was accused of violating his probation in a number of particulars. He stipulated to the violations, and his attorney advised the court as follows:
“I’ve explained to Mr. Caruthers that he has a right to have a hearing in this case and have the State prove the allegations. That if he stipulates to the violations that are enumerated ... the Court will in all likelihood revoke his probation and could sentence him to prison today. Notwithstanding that, my understanding is that Mr. Caruthers still would like to go ahead and stipulate to the violations contained in this motion to revoke.”
The trial court then asked defendant if he was in agreement with this statement made by his attorney, and defendant said that he was.
At the probation revocation hearing, the trial court questioned defendant at some length before accepting his stipulation as to the allegations of probation violation. Both the State and defense coun sel made arguments to the trial court, and the court revoked defendant’s probation. Defendant appealed.
Defendant argues the trial court erred in failing to specifically ask him if he had anything to say before ordering his probation terminated. We conclude this argument is without merit.
In essence, defendant is arguing he has a right to allocution in a probation revocation hearing. These hearings are governed by K.S.A. 22-3716(b). Interpretation of a statute is a question of law over which this court has unlimited review. See State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).
K.S.A. 22-3716(b) does not require that a defendant be asked if he or she wishes to make a statement before probation is revoked. There is no allocution requirement in the probation revocation proceedings as mandated by statute. We also reject the notion that allocution is required as a matter of due process independent of the statute.
Defendant cites State v. Hunt, 257 Kan. 388, 405, 894 P.2d 178 (1995), to establish that the right to allocution cannot be waived by defense counsel’s statement or by defendant’s silence. We do not dispute that proposition as put by defendant. However, Hunt, along with State v. Webb, 242 Kan. 519, 748 P.2d 875 (1988), deals with the right to allocution under K.S.A. 22-3424. K.S.A. 22-3424(e)(4) specifically requires allocution prior to sentencing. That statute, and the cases interpreting it, have no relevance to proceedings under K.S.A. 22-3716(b), which contains no such requirement. '•
We hold that allocution prior to revoking a defendant’s probation is not required either by the statutes of this state or by the Due Process.Clause of the United States Constitution. Defendant’s contentions to the contrary are without merit.
We note in closing that even if such an allocution requirement did exist, it would not require a reversal of the judgment in this case. The record shows that defendant admitted violating his probation and fails to show where he was prejudiced by the failure of the trial court to grant him allocution. In State v. Borders, 255 Kan. 871, 881, 879 P.2d 620 (1994), our Supreme Court stated:
“We believe the requirement of a showing of prejudice to the substantial rights of the defendant is equally applicable to alleged violations of the allocution statute as it is to the many other areas of criminal procedure where prejudice must be shown to justify a reversal. The defendant here has shown absolutely no prejudice, and while failure to comply with a mandatory statute, such as K.S.A. 1992 Supp. 22-3424(4), is error, [it is] not reversible error unless prejudice to the substantial rights of the defendant is shown.”
Our review of the record shows that defendant failed to make any showing that his substantial rights were prejudiced by the trial court’s failure to ask him if he had anything to say prior to revoking his probation. See State v. Kendig, 19 Kan. App. 2d 128, 132-33, 865 P.2d 218 (1993), rev. denied 254 Kan. 1009 (1994). Defendant had several opportunities to advise the trial court of any matters he deemed relevant and failed to do so.
Affirmed. | [
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|
Knudson, J.:
The defendant, Scott A. Aeree, appeals his conviction for burglary and misdemeanor theft following jury trial. He contends the district court erred in directing a readback of testimony to occur in the jury room outside the presence of court, counsel, and the defendant.. Additionally, Aeree contends that the district court erred in its supplemental instruction defining reasonable doubt and in admitting prior crimes evidence under K.S.A. 60-455.
. .Under the particular facts of this case, we conclude that the district court committed harmless error in the readback; the court’s supplemental instruction, which attempted' to define reasonable doubt, was harmless error; and the court did not err in its admission of prior crimes evidence.
When Scott DeWitt arrived home on the evening of May 5, 1994, at approximately 9 p.m., he discovered a burglary of his tack shed with several items missing. Aeree was a suspect. Police officer Mark Mathies located Acree’s vehicle about 1 hour later that evening at the residence of Daryl Isaacson and discovered inside Acree’s vehicle items which matched the description of items reported missing by DeWitt.
Officer Mathies returned to Isaacson’s residence on June 8, 1994, and found additional missing items.
• Aeree was charged with burglary of a building not a residence and felony theft". Prior to trial, when interviewed by William Blair of the McPherson County Sheriff’s office, Aeree denied being at DeWitt’s property and taking any of his personal items. He told Blair that he had found the items at the city dump.
Ten-year-old Richard Anderson lived with his family across the street from the DeWitt property. Richard testified to seeing Aeree in his orange and white International Scout vehicle at DeWitt’s shortly before the alleged crimes and related that DeWitt left about 10 to 15 minutes later. Richard did not see what DeWitt did at the property. Richard also testified to the condition of the property and his observations that on two prior occasions the door to the tack shed was either padlocked or shut. On cross-examination, Richard noted he had seen another vehicle, which he could not identify, drive onto the DeWitt property about 1 hour earlier than when he had seen Aeree. We note neither counsel asked Richard if he knew how long the other vehicle remained at the property.
In his testimony, Aeree denied telling Deputy Blair he had found the items located in his Scout at the city dump. Aeree testified that he did not enter the tack shed. He believed the property was abandoned and took a few items of personal property strewn about the yard.
The Anderson Readback
During juiy deliberations, the jury asked to have Richard Anderson’s testimony read back. The written request by the jury did not suggest why the readback was needed by the jury. The district court met with Aeree and the attorneys in chambers, where an on-the-record discussion took place. The district court said:
"I propose we simply send [the court reporter] in to the jury room to read back the testimony less those questions objected to that I sustained, and not bring the jury back in the courtroom. Just saves us having to sit through it. Any objection to proceeding in that manner?”
Both attorneys acknowledged on the record that they had no objection. From the record, we can neither discern if the district court directed his question to Aeree nor ascertain if Acree’s attorney conferred with him before answering the judge. It is clear that Aeree did not verbally respond to the judge’s proposal, and there is no indication that Aeree nodded or otherwise affirmatively acquiesced to the readback in the jury room.
On appeal, Aeree argues that the trial court erred by allowing the court reporter to enter the jury room and read back a portion of the evidence outside the courtroom and his presence. This issue involves a question of law. The scope of appellate review when considering a question of law is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
An accused has a constitutional and statutory right to be present at every stage of his or her trial. See K.S.A. 22-3405(1); Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057, reh. denied 398 U.S. 915 (1970) (Sixth Amendment guarantees the defendant’s right to be present at every stage of his or her trial). Reading back testimony to a jury is a part of the trial, and “certainly is encompassed in the phrase ‘at every stage of his trial.’ ” State v. Gammill, 2 Kan. App. 2d 627, 631, 585 P.2d 1074 (1978).
K.S.A. 22-3420(3) provides that if a jury requests information regarding any part of the law or the evidence submitted in the case, the requested information must be given in open court in the presence of the accused unless the accused is voluntarily absent. State v. Antwine, 4 Kan. App. 2d 389, 401, 607 P.2d 519 (1980).
This court held in State v. Gammill, 2 Kan. App. 2d at 630-31, that a readback of testimony must be done in the courtroom in the presence of the defendant. See State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983); State v. Dunnan, 223 Kan. 428, 432, 573 P.2d 1068 (1978); Antwine, 4 Kan. App. 2d at 389. In State v. Sandstrom, 225 Kan. 717, 721, 595 P.2d 324, cert. denied 444 U.S. 942 (1979), the Kansas Supreme Court held that an attorney may waive a client’s right to be present at trial when, based on the record, it is shown that the defendant voluntarily waived the right to be present. In addition, Gammill held that an attorney cannot waive the right of an accused to be present during the readback without first having discussed the matter with the defendant. 2 Kan. App. 2d at 631. This court in Antwine held that a waiver will not be presumed from a silent record. 4 Kan. App. 2d at 401.
In Knapp, Antwine, Dunnan, and Gammill, the defendants were not present when the decision to have the readback performed in the jury room was made, although the defendants’ attorneys were present. The court held in-each case that performing the readback in the jury room outside the presence of the defendant was error. In the case at hand, the State argues that the court did not err because Aeree was present when the trial court asked for objections.
As in the cases noted above, however, the record is silent as to any attorney-client consultation. Although Aeree was present when the decision was made, there is nothing in the record to show that he knew that he had a right to be present when the readback occurred. Absent a consultation between Aeree and his counsel apparent on the record, a knowing waiver should not be presumed. Antwine, 4 Kan. App. 2d at 401. The trial court erred in allowing the court reporter to enter the jury room and read back a portion of the evidence outside the courtroom and the presence of the defendant.
We must next decide whether this constitutional error was harmless.
“An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a behef that it was harmless beyond a reasonable doubt. Before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.” State v. Johnson-Howell, 255 Kan. 928, 944-45, 881 P.2d 1288 (1994).
“ ‘On appeal, the defendant has the burden of showing the error substantially prejudiced his or her rights.’ ” State v. Bowser, 252 Kan. 582, 589, 847 P.2d 1231 (1993), quoting Crease v. State, 252 Kan. 326, 334, 845 P.2d 27 (1993).
Aeree argues that the trial court’s error was prejudicial because he was denied the ability to ensure that the readback was properly performed without undue inflection; that the entire testimony was read back including cross-, redirect, and recross-examinations; that the objections sustained by the trial court were not read to the jury; and that the readback was not interrupted by the question of a juror. Before considering these specific matters raised by Aeree, it would be helpful to place Anderson’s substantive testimony in context with the factual issues presented to the jury for resolution.
Anderson was one of seven witnesses called by the State to testify. During his testimony, two objections by the defense were lodged during direct examination. Both objections were sustained. Aeree objected when Anderson was asked whether DeWitt was concerned about any of his buildings. He answered, “Sure.” The second objection was to the county attorney’s question as to whether the tack shed was usually locked. The witness did not give an answer prior to the court sustaining the objection.
Aeree never disputed that he had entered upon DeWitt’s property. His defense to the charge of burglary was that he did not enter the tack shed. Anderson’s testimony did not contradict or otherwise discredit this defense. As to the theft count, Acree’s defense of abandonment was not compromised by any of Anderson’s testimony. Anderson testified that he never saw what Aeree did after entering the driveway of DeWitt’s property.
The case against Aeree was substantially circumstantial. Many of the missing items were found in his vehicle shortly after he had been at DeWitt’s property. It was DeWitt, not Anderson, who testified that those items had been taken from the tack shed. It was both Aeree and DeWitt who testified to items taken or missing from the property, not Anderson.
Finally, we would note that Anderson gave testimony that could only help Aeree when he narrated seeing another vehicle enter the DeWitt property earlier in the evening.
Constitutional error must never be taken lightly. Nonetheless, if the error did not adversely affect Acree’s right to a fair trial, it would make no sense to set aside the verdicts and require another trial. Substantively, Anderson’s testimony neither established a controverted issue nor did harm to Acree’s defenses to both charges.
As to the manner and method of the readback, while we do not condone the practice, only wild speculation would permit us to conclude any prejudice occurred. One of the two objections sustained by the court during Anderson’s testimony had drawn no response from the witness; the other was to a question that could not possibly have influenced the jury in deliberations. More importantly, the record is devoid of any post-trial evidence that the court reporter did not properly read back the testimony or that there was any impropriety during the readback. Thus, Aeree has failed to provide an adequate record on appeal to substantiate his claim of prejudicial error. See State v, Richardson, 256 Kan. 69, 84, 883 P.2d 1107 (1994). We hold that the error was harmless beyond a reasonable doubt.
Reasonable Doubt Instruction
On appeal, Aeree argues that the trial court erred in the manner in which it defined reasonable doubt. The trial court instructed the jury as follows:
“Reasonable doubt does not mean a mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. Reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the mind of a juror in that condition that he/she cannot say that he/she feels an abiding conviction for a moral certainty to the truth of the charge.”
Although Aeree does not spell out his theory of error, it appears that he is claiming that the trial court deprived him of his due process rights by lowering the standard by which the jury found him guilty because the jury became confused by the instruction.
Efforts to define reasonable doubt, other than as provided in PIK Crim. 3d 52.02, usually lead to a hopeless thicket of redundant phrases and légalese, which tends to obfuscate rather than assist the jury in the discharge of its duty. We have no hesitancy in strongly counseling the trial bench to use PIK Crim. 3d 52.02 and resist requests for a more expansive definition.
In Victor v. Nebraska, 511 U.S. 1, 127 L. Ed. 2d 583, 590, 114 S. Ct. 1239 (1994), the United States Supreme Court stated: “The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” Victor held that a definition of reasonable doubt almost identical to the definition in this case did not violate due process. The Court reasoned that other words and phrases in the definition itself helped to define the troublesome phrases of “moral evidence” and “moral certainty,” 511 U.S. at 10-17. The court specifically stated, however, that it did not condone the use of the words “moral evidence” and “moral certainty.” 511 U.S. at 16.
The Kansas appellate courts have held that the standard of review when an instruction is challenged to determine (1) whether the instructions, considered as a whole, properly and fairly state the law as applied to the facts in the case and (2) whether the jury might reasonably be misled by the instruction. State v. DeVries, 13 Kan. App. 2d 609, 611, 780 P.2d 1118 (1989). Although Victor did not state the standard of review in the same words, it did hold that the instruction did not invite the jury to convict the defendant on proof below that required by the Due Process Clause. 511 U.S. at 16. In other words, the instruction explained to the jury what the law was. In addition, the court held that “there is no reasonable likelihood that the jury would have understood moral certainty to be disassociated from the evidence in the case.” 511 U.S. at 16. In other words, the jury was not misled by the instruction.
Based on the holding in Victor and the standard of review in DeVries, we hold that the trial court’s definition of reasonable doubt did not violate Acree’s due process rights or otherwise create prejudicial error.
K S.A. 60-455 Evidence
Aeree argues that the trial court erred by allowing the State to present evidence of a 1978 conviction for burglary and theft. Prior to trial, Aeree filed a motion in limine, requesting that the State be prohibited from introducing any evidence of Acree’s previous convictions. The State requested and received a K.S.A. 60-455 hearing prior to the start of the trial. Acree’s counsel argued that the previous convictions were highly prejudicial, that their prejudicial nature outweighed their probative value, and that they were irrelevant and remote in time. He further argued that there was no information about the similarity of the crimes and that the jury would believe that if Aeree committed the previous crimes, he must have committed these crimes.
The trial court ruled that the prior conviction was relevant to the issue of intent, knowledge, and absence of mistake, stating that “where a set of facts is subject to two different interpretations, one criminal and one legal, then the prior conviction becomes highly relevant on the issue of intent.” Noting that the issue of Acree’s intent was highly contested, the court then balanced the probative value and the prejudicial effect and ruled that the probative value outweighed the prejudicial effect.
At the conclusion of the State’s case, the trial court presented the jury with a signed statement, stipulating that Aeree was con victed in 1978 of burglary and theft. The court then gave the jury the following limiting instruction: “Evidence has been admitted tending to prove that the defendant committed crimes other than the present crimes charged. This evidence may be considered by you solely for the purposes of proving the defendant’s intent, knowledge, and absence of mistake or accident.”
Our standard of review is whether the trial court abused its discretion in admitting the prior crimes evidence under the limiting instruction given. State v. Clements, 252 Kan. 86, 88-89, 843 P.2d 679 (1992).
Aeree argues on appeal that the trial court erred in admitting the prior crimes evidence because intent was not an issue. This argument was not raised before the trial court and accordingly will not be considered on appeal. State v. Solomon, 257 Kan. 212, 222, 891 P.2d 407 (1995).
Even if we were to consider this issue, Acree’s contention is without merit. Whether he had an intent to commit theft was a critical issue under both counts of the information. Acree’s argument that the crucial dispute at trial was whether the property was in the tack shed, not his intent, ignores the theft count.
We finally note that Aeree does not raise on appeal the concerns expressed before the trial court that the evidence was too remote to have probative value and that, in any event, its prejudicial effect outweighed its probative value. “An issue neither briefed nor argued on appeal is deemed to have been abandoned.” State v. Pratt, 255 Kan. 767, Syl. ¶ 4, 876 P.2d 1390 (1994).
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Lewis, J.:
In March 1994, Kansas Pipeline Partnership (KPP) and Kansas Natural Partnership (KNP), collectively the Joint Applicants, filed an application before the Kansas Corporation Commission (KCC) for a rate increase. There were several intervenors in the rate case at the KCC level. The. only intervenor who remains a party on appeal is Williams Natural Gas Company (WNG). For that reason, we need not identify the other intervenors. KPP and KNP merged as a result of the KCC hearings and no longer have separate identities. However, we will still refer to them as Joint Applicants or by their separate former identities in this opinion.
In summary, the entities still litigating on appeal are the Joint Applicants, the KCC, and WNG. WNG is aggrieved by the action taken by the KCC and occupies the position of the appellant. The other parties all seek to uphold the order of the KCC and are in the position of appellees.
The record of the KCC hearing is voluminous. After considering all the evidence, the KCC granted relief to the Joint Applicants in the form of a multi-faceted rate increase. WNG argues that the KCC erred in allowing the Joint Applicants to recover certain “market entry costs” and certain “carrying costs.” There are other issues associated with the “market entry costs” on appeal that, for reasons which will become apparent, are moot. The facts on which the rate increase in question was granted are set forth in a very abbreviated manner in this opinion.
The factual background of this particular rate case began in 1984. In that year, Kansas Pipeline Company, L.P., (KPCLP) and Phenix Transmission Company (Phenix) were granted certificates of convenience and necessity to operate as intrastate natural gas suppliers.
KPCLP and Phenix were formed and granted certificates of convenience and necessity to introduce competition into the natural gas marketplace comprising the state of Kansas. WNG is an interstate natural gas supplier and, as such, is regulated by the Federal Energy Regulatoiy Commission. It appears from the record that in 1984 and for some years prior thereto, WNG had a virtual mo nopoly over the natural gas market in the state of Kansas. The KCC desired to eliminate this monopoly and granted certain concessions to KPCLP and Phenix in the hopes that these entities would successfully create at least a duopoly in the market.
WNG has been relatively successful in maintaining its position in the natural gas market. For instance, KPCLP’s and Phenix’s KCC certification required those entities to make all of their deliveries through Western Resources, Inc. (WRI). KPCLP and Phenix both attempted to do business with WRI but were not successful. That failure can be explained in various ways, but it is apparent that WRI at that time was doing its business with WNG. Thus, WNG is affixed with considerable blame for the failure of KPCLP and Phenix.
Both KPCLP and Phenix were failed ventures. They did not earn the revenues anticipated and apparently lost considerable amounts in operating revenues. There are a variety of reasons for the failure of these entities, but the KCC and the Joint Applicants blame WNG and WRI. In fact, the KCC specifically blamed WRI for KPP’s “lag in developing business.” It found that KPP’s problems were due to the fact that “WRI was either unable or unwilling to alter or to potentially place in jeopardy its long-term relationship with WNG.” In order to punish WRI for not doing business with KPP, the KCC has authorized nearly $4 million in market entry costs to be recovered by direct billing only WRI.
In 1990, the Joint Applicants were formed. KPP was formed as a partnership between Kansas Pipeline Company and OKM Gas Pipeline Company. KPP was formed “for the purpose of acquiring and operating the natural gas pipeline assets of KPCLP.” (Emphasis added.) KNP was formed as a partnership between Kansas Natural, Inc., and OKM Gas Pipeline Company “for the purpose of acquiring and operating the pipeline assets of KNI (formerly Bishop which was formerly Phenix).” The new entities were formed; KPCLP’s certificate of convenience and necessity was transferred to KPP, and Phenix’s certificate of convenience and necessity was transferred to KNP.
It appears that the Joint Applicants paid approximately $44 million for the pipeline assets of KPCLP and Phenix. It is clear that only the assets of KPCLP and Phenix were purchased. This is to say that this was an assets-only sale; there was no purchase of stock, no outright assumption of debts or past sins as may occur when the stock of a corporation is purchased instead of its assets. In other words, the Joint Applicants are not the lawful successors of KPCLP and Phenix; they are only entities which purchased the assets of KPCLP and Phenix.
In 1991, in a largely ex parte proceeding, the Joint Applicants obtained certain “accounting orders” from the KCC. WNG was not a party to this proceeding and did not seek to intervene. KNP was authorized by the KCC to amortize over 30 years “all of those authorized amounts permitted by the Commission to be earned by KNP, but not earned, in the period May 1985, through November 30, 1990, due to litigation initiated against the Commission and KPP by others, as well as other causes.” The KPP accounting order contained the same language but limited the period covered to a period from Januaiy 1985 to October 31, 1988. We should note that factually neither of the Joint Applicants existed during the period of time covered by the special accounting orders and, despite the language of those orders, could not possibly have been authorized to earn the amounts referred to in the special accounting orders. The Joint Applicants did not come into existence until 1990, and it appears that not even the KCC could have authorized or enabled a nonexistent entity to earn money during a time that it did not exist.
The next significant event is the current rate case. The Joint Applicants have won a rate increase, and WNG opposes it. The Joint Applicants blame WNG for most of their problems, past, present, and future. They suggest that WNG’s only motive is to preserve its monopoly position and that it is doing everything it can to “prevent or frustrate the entry of the Applicants as market participants.”
WNG argues that the rate increase granted to the Joint Applicants gives them an unfair competitive edge. WNG suggests that even though its prices for natural gas are much lower than those of the Joint Applicants, certain entities such as WRI are bound by contract to purchase natural gas from the Joint Applicants, regardless of the difference in price. ...
The atmosphere in which this case was tried appears to have been one of mutual hostility and suspicion. This attitude continues to evidence itself on the appellate level. In essence, the argument is made that the KCC orders were directed at breaking up a monopoly and that this is such a laudable goal that the orders must be upheld. While we acknowledge that the goal of the KCC to introduce competition into the sale of natural gas was a laudable one, we do not believe that goal increased the power or authority of the KCC beyond the rule of law.
The KCC issued a number of orders in this case dealing with many different issues. WNG’s only claim of error is directed at the “market entry costs” allowed to be recovered by the Joint Applicants. There is no claim of error as to any of the other orders issued by the KCC in this case.
At this point, we pause to note that it is difficult to precisely define what is meant by market entry costs. Despite that difficulty, we will use that term in this opinion. In general, these market entry costs are losses or shortfalls in revenue which were experienced by KPCLP and Phenix from 1985 through 1990. They appear to be somewhat in the nature of net operating losses. By whatever name we use to describe them, they were incurred by KPCLP and Phenix, and the KCC order treats them as assets of the Joint Applicants.
WNG claims that the commission erred in the following particulars:
(1) In authorizing the Joint Applicants to recover $10.5 million in market entry costs experienced by Phenix from May 1985 through November 30, 1990.
(2) In authorizing the Joint Applicants to recover $2.5 million in market entry costs incurred by KPCLP from January 1985 through October 31, 1988, along with carrying costs of $1,077,466 on that $2.95 million of market entry costs. These market entry costs and carrying costs were to be recovered by a direct billing directed solely to WRI and amortized over a period of 3 years. .
It should be noted that the KCC allowance of the market entry costs was not without controversy and considerable dispute. The KCC legal staff opposed these allowances at the trial level, although they are vigorous in upholding them on this appeal. One of the three KCC commissioners dissented, saying, among other things:
“[S]imply stated, the Joint Applicants did not experience the $10.5 and $2.95 million shortfalls nor did they assume any part of a debt that represents these sums. It stretches the bounds of intellectual integrity, albeit a most creative effort, that one could characterize the shortfall in projected earnings on revenues as an ‘asset.’ ”
JURISDICTION
We begin by examining our jurisdiction to hear this appeal. The Joint Applicants argue that WNG has failed to exhaust its administrative remedies. If they are correct, we have no jurisdiction to hear this appeal. See K.S.A. 1995 Supp. 66-118b.
The question is whether WNG was required to file a petition for reconsideration of the third KCC order issued in this case. There were four orders issued: one on March 17, 1995; one on June 16, 1995; one on November 6, 1995; and the final order on December 8,1995. WNG filed petitions for reconsideration of the first two orders but did not do so on the order issued in November 1995.
K.S.A. 1995 Supp. 66-118b reads:
“No cause of action arising out of any order or decision of the commission shall accrue in any court to any party unless such party shall petition for reconsideration in accordance with the provisions of K.S.A. 77-529 and amendments thereto. No party shall, in any court, luge or rely upon any ground not set forth in the petition. An order made after reconsideration, abrogating, changing or modifying the original order or decision, shall have the same force and effect as an original order or decision, including the obligation to file a petition for reconsideration, as provided in this section, as a condition precedent to fihng an action for review thereof. The time for fifing an appeal of any order or decision in a proceeding shall run from the date that all petitions for reconsideration in such proceeding have been denied or such petitions for reconsideration are deemed denied pursuant to subsection (b) of K.S.A. 77-529 and amendments thereto.” (Emphasis added.)
The Joint Applicants argue that the statute requires a petition for reconsideration be filed after each and every order “abrogating, changing or modifying the original order.” They contend that this is a mandatory step required in all cases regardless of the circumstances.
WNG argues it was not aggrieved by the KCC order of November 6, 1995, and should not be required to seek reconsideration under those circumstances. “The purpose of an application for rehearing is to permit the Commission to correct errors which are called to its attention and thus avoid a judicial review and determination.” Graves Truck Line v. State Corporation Commission, 195 Kan. 82, 85, 402 P.2d 757 (1965).. WNG suggests that there was no purpose to be served by its seeking reconsideration of an order that was basically in its favor.
The KCC issued four orders. Each order was identical to the previous order with the exception of that portion of the previous order which was modified or changed by the order in question. The December 8, 1995, order changed nothing from the November 6, 1995, order; it merely denied the Joint Applicants' final petition for reconsideration. WNG sought reconsideration of each of the first two orders issued by the KCC. The November order, which was the final substantive order, modified the previous order in favor of WNG. Although the November order restated virtually everything that had been said in the first two orders, the only new materials in the November order were modifications of a previous order, and those modifications were in favor of WNG. By the time the November order was issued, WNG had already called to the attention of the KCC all of the errors it asserts on this appeal. To the extent the November order modified earlier orders, WNG was not aggrieved by the modifications.
The question presented involves a commonsense interpretation of the statute and some consideration of judicial economy. As stated earlier, each KCC order was identical to the others except as to matters modified by the new order.. WNG filed petitions to reconsider the first two orders. In those petitions, it called to the attention of the KCC all of the claimed error it asserts on appeal. As a result of WNG’s petition for reconsideration of the first two orders, the KCC had an opportunity to correct the errors which were called to its attention and thus avoid a judicial review and determination. The November order issued by the KCC simply restated matters decided in the first two orders. WNG was not aggrieved by any new material in the November order. Was WNG required to ask for reconsideration of the November order to exhaust its administrative remedies? We hold that it was not.
The KCC, in this case, made no findings with regard to the exhaustion of administrative remedies. However, the KCC states in its brief: “WNG has exhausted its administrative remedies and has timely filed this Petition for Judicial Review.” While the position of the KCC is not binding on this court, we consider it persuasive. Usually, “interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference.” State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991).
We do not believe that K.S.A. 1995 Supp. 66-118b should be interpreted in a manner so as to require a party to take needless actions which only waste judicial economy and which are, in the final analysis, an affront to the sensible administration of justice. To require a party to seek reconsideration of an order which does not aggrieve it would do just that. “ ‘[T]he legislature is presumed to intend that a statute be given a reasonable constmction, so as to avoid unreasonable or absurd results.” State Bank Commissioner v. Emery, 19 Kan. App. 2d 1063, 1068-69, 880 P.2d 783 (1994). We believe the constmction urged by the Joint Applicants would result in an unreasonable or absurd result. We note that K.A.R. 82-1-235 appears to permit only “aggrieved” parties to file for reconsideration: “Any party being aggrieved by any order or decision of the commission may file a petition for reconsideration before the commission.” (Emphasis added.)
We cannot interpret K.S.A. 1995 Supp. 66-118b to require the filing of endless and needless petitions for reconsideration in order to exhaust one’s administrative remedies. We hold that no petition for reconsideration of an order in a multiple-order KCC action need be filed to exhaust administrative remedies when the following facts are present:
(1) The appellant has previously filed petitions for reconsideration of prior orders issued by the KCC in which all errors claimed on appeal have been brought to the attention of the commission; and
(2) the order from which no petition for reconsideration was filed modified a previous order in favor of the appellant so that appellant cannot be said to have been “aggrieved” by the order.
We believe the position advocated by the Joint Applicants would result in an absurdity. In a multiple-party case, the position taken by the Joint Applicants would require each party to file a petition for reconsideration on every order issued by the KCC until the KCC finally issued an order which was absolutely identical to the previous order. This could create an endless circle similar to a dog chasing its tail. The KCC routinely restates in each order everything it has said in its earlier orders. The only new material is contained in the modifications of the previous order. If a party is not aggrieved by the modifications and has previously called the attention of the KCC to all of the elements of error it asserts on appeal, it should not be required to petition for reconsideration of the only new material in the order.
We hold WNG has exhausted its administrative remedies in this case and that we have jurisdiction to deal with the merits of this appeal.
STANDARD OF REVIEW
Pursuant to K.S.A. 66-118c, this court’s review of an order of the KCC is in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. WNG contends the KCC erroneously interpreted or applied the law, that the KCC’s order is not supported by substantial evidence, and that the KCC’s decision is otherwise unreasonable, arbitrary, or capricious. Those claims of error aré consistent with the KJRA. See K.S.A. 77-621. In Crawford v. Kansas Dept. of Human Resources, 17 Kan. App. 2d 707, 708, 845 P.2d 703 (1989), rev. denied 246 Kan. 766 (1990), we said:
“Judicial review of orders of an administrative body is governed by the [KJRA]. The scope of review is stated in K.S.A. 77-621. The agency’s findings are presumed valid on review and the agency’s order may only be set aside by the district court if it is not supported by substantial competent evidence, is without foundation in fact, or is otherwise unreasonable, arbitrary, or capricious. [Citation omitted.]
“Judicial review is limited to these questions of law. K.S.A. 77-621 does not limit a court’s review of an agency’s interpretation or application of a matter of law. In reviewing a question of law, a court may substitute its judgment for that of the agency. [Citation omitted.]”
We believe that the following quotation from Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 496-97, 720 P.2d 1063 (1986), adequately provides guidance on our scope of review:
‘We should next consider the scope of judicial review where an appeal is taken to the courts from an order of the KCC in a rate-making case. The scope of review is discussed in the decision of the Court of Appeals in Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 380-81, 595 P.2d 735, rev. denied 226 Kan. 792 (1979), where the court stated:
‘K.S.A. 1978 Supp. 66-118d limits judicial review of an order by the commission to determining whether the order is “lawful” or “reasonable.” [Citation omitted.] A court has no power to set aside such an order unless it finds that the commission acted unlawfully or unreasonably. [Citation omitted.] An order is “lawful” if it is within the statutory authority of the commission, and if the prescribed statutory and procedural rules are followed in making the order. [Citation omitted.] An order is generally considered “reasonable” if it is based on substantial competent evidence. [Citation omitted.]
‘The legislature has vested the commission with wide discretion and its findings have a presumption of validity on review. [Citation omitted.] Since discretionary authority has been delegated to the commission, not to the courts, the power of review does not give the courts authority to substitute their judgment for that of the commission. [Citation omitted.] The commission’s decisions involve the difficult problems of policy, accounting, economics and other special knowledge that go into fixing utility rates. It is aided by a staff of assistants with experience as ■statisticians, accountants and engineers, while courts have no comparable facilities for making the necessary determinations. [Citation omitted.] Hence a court may not set aside an order of the commission merely on the ground that it would have arrived at a different conclusion had it been the trier of fact. It is only when the commission’s determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it. [Citations omitted.]’ ”
MARKET ENTRY COSTS
The real issue to be resolved on this appeal is whether the KCC had the authority to permit the Joint Applicants to recover certain “market entry costs.” These costs were incurred by other entities at a time when the Joint Applicants did not exist. In specific terms, the Joint Applicants are being permitted to recover market entry costs of $10.5 million incurred by Phenix, $2.95 million in market entry costs incurred by KPCLP, and $1 million in carrying costs on the market entry costs incurred by KPCLP. The KCC permitted the $10.5 million in costs incurred by Phenix to be added to the Joint Applicants’ rate base and the $2.95 million and $1 million in costs incurred by KPCLP to be direct billed to WRI. The recovery of these costs is to take place over a designated period of time.
In his dissent, Commissioner McKee disagreed with the allowance of these market entry costs. He pointed out that these costs were not incurred by the Joint Applicants but were incurred by two unrelated entities prior to the Joint Applicants’ existence. We find the dissent to be more in accordance with our views than is the majority decision.
We have no problem with the allowance of market entry costs as a part of rate base when these costs were either incurred by or acquired by the entity to whom the award is made. However, we do not believe it requires any citation of authority to conclude that the KCC has no power to permit an applicant to recover market entry costs when the applicant did not incur or otherwise acquire the costs in question. To do this would be similar to allowing a loan applicant to add the value of his or her best friend’s home to the applicant’s property statement because the applicant had purchased his or her best friend’s automobile.
We have examined this record and see no evidence which shows that the Joint Applicants either acquired or “inherited” the operating losses of KPCLP or Phenix. It is beyond doubt that they most certainly did not “incur” the costs in question.
The evidence indicates that the Joint Applicants purchased only the “assets” of KPCLP and Phenix for approximately $44 million. The total purchase price of these assets appears to be part of the Joint Applicants’ rate base before the additions of the market entry costs in question. This suggests that if somehow these market entry costs were lawfully acquired by the Joint Applicants, they were acquired for no consideration.
Another troubling aspect is that the Joint Applicants purchased only the assets of KPCLP.and Phenix. The purchase was neither a stock nor an equity transaction. In plain English, they did not buy the business, warts and all; they bought only the assets. The nature of this transaction is further indicated by the fact that the purchasers did not directly assume any debt or liability as a result of its purchase of the assets of the two entities in question.
Again, it is vital to keep in mind that this was not a stock transaction where the corporate identity, body and soul, was purchased. Such a purchase might, in all probability, carry with it such things as net operating losses, liabilities, and other ethereal matters which attach to the corporate body. In this case, the Joint Applicants did not acquire the corporate body; they acquired only the corporate assets. They did not acquire the very existence and soul of the now defunct entities.
Determining what property is to be included in the rate base is a question of fact. Kansas Gas & Electric Co. v. State Corporation Commission, 218 Kan. 670, Syl. ¶ 3, 544 P.2d 1396 (1976). We are not a finder of fact; that status is occupied by the KCC. Despite its status as a finder of fact and despite the vital nature of the question at hand, the KCC failed to focus on or make findings on this issue. This makes meaningful appellate review impossible.
We have said before and say again that the allowance of the market entry costs in question was error unless the applicants either incurred these costs or somehow acquired them when they purchased the assets of KPCLP and Phenix. Since it is obvious the Joint Applicants could not have “incurred” these losses, the question becomes whether they somehow acquired them. There are no KCC findings on this important issue.
For that reason, we reverse the orders of the KCC relating to the allowance of market entry costs and remand for additional hearings and findings. On remand, the KCC must determine if the market entry costs in question were somehow acquired by the Joint Applicants. If they were acquired, it must be determined when and how such an acquisition was and could have been made. If on remand the KCC cannot determine that these market entry costs were somehow lawfully acquired by the Joint Applicants, they may not be recovered, as part of the rate base or otherwise, by the Joint Applicants. If the KCC is convinced on remand that somehow these assets were acquired by the Joint Applicants, the allowances may be restored..
We note that our uncertainty here is not whether market entry costs can be recovered in an appropriate case. We do not dispute that this can be done. Our concern is that the KCC has permitted the Joint Applicants to recover the losses of an, unrelated entity which the Joint Applicants neither incurred nor acquired. It is this issue which must be resolved on remand.
Throughout these proceedings, the argument has been made that the KCC may do nearly anything it desires if it is achieving a laudable goal such as breaking up a monopoly in the marketplace. We disagree. However laudable its motives may be, the KCC is still controlled by the rule of law. Even if it furthers the cause of breaking up a monopoly, the KCC has no power to permit recovery of costs which were incurred by a prior unrelated entity and which were never acquired by the applicant.
The other issues raised on appeal are rendered moot by our decision. Those issues all turn on the ability of the Joint Applicants to recover the market entry costs in question. Unless and until that question is resolved, we need not and do not reach the remaining issues.
We do, however, want to flag one issue. That is the question of whether the KCC has the power to punitively order certain costs to be recovered by the Joint Applicants in a direct bill to one entity. In this case, nearly $4 million in market entry and carrying costs were ordered to be recovered by the Joint Applicants by directly billing those costs to WRI over a 3-year period. We find the exercise of such a punitive and singly focused power by the KCC to be somewhat alarming. In the long run, it is the customers of WRI who will pay this direct billing. We question the power of the KCC to act in so punitive a manner against one entity in the natural gas field. That issue is, for the moment, moot. However, if on remand the KCC should reinstitute its direct billing order, it should be prepared to identify and document its authority to punitively and directly bill costs to one entity.
The orders authorizing the Joint Applicants to recover market entry costs and carrying costs are reversed. The matter is remanded to the KCC with the following directions:
(1) The KCC must determine if, when, and how the Joint Applicants acquired market entry costs incurred by two unrelated entities prior to the formation of the Joint Applicants. If necessary, the KCC may hold additional hearings and may receive additional evidence on the issues in question.
(2) If the market entry costs were neither incurred nor acquired by the Joint Applicánts, the KCC shall not permit such costs to be added to the Joint Applicants’ rate báse or recovered by Joint Applicants in any fashion.
(3) In the event the KCC finds that the market entry costs and carrying costs were acquired by the Joint Applicants, the KCC should restore its earlier orders authorizing recovery of those costs.
Reversed and remanded. | [
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Elliott, J.:
The birth parents of C.Y. appeal the termination of their parental rights. We reverse and remand.
The petition alleging C.Y. was a child in need of care stated that C.Y. had been placed in protective custody at mother’s request partly because mother’s mental condition and alcoholism prevented her from properly caring for C.Y. and that mother had previously been convicted of sexually abusing her other children who were now in the custody of the Sioux Nation (of which mother is a member).
The initial termination hearing was continued because notice to the Fort Peck Tribe of the Sioux Nation did not comply with the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (1994). Mother requested that the case be transferred to the tribal court and father did not object.
A lawyer in private practice in North Dakota entered his appearance on behalf of the tribe and filed a document stating that economic conditions prevented the tribe from appearing at the termination hearing, that the tribe retained its right to intervene, and that the tribe “will object to any Motion to Transfer Jurisdiction in this matter to the Fort Peck Tribal Court.”
The trial court accepted the document as formal declination of jurisdiction and terminated both parents’ rights. Father has adopted mother’s brief as his own.
We have a duty to question jurisdiction on our own motion. In re Marriage of Marks, 13 Kan. App. 2d 1, 2, 758 P.2d 257 (1988).
All parties agree the ICWA applies to this case. The ICWA, 25 U.S.C. § 1911 (1994), includes the following relevant provisions:
“(b) Transfer of proceedings; declination by tribal court.
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, that such transfer shall be subject to declination by the tribal court of such tribe.
“(c) State court proceedings; intervention.
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point in the proceeding.” (Emphasis added.)
To us, the statute is clear. It is the tribe which has the right to intervene under 25 U.S.C. § 1911(c), and it is the tribal court which must decline to exercise jurisdiction over a case transferred to it under § 1911(b). “Indian tribe” and “tribal court” are separately defined and denote separate entities. See 25 U.S.C. §§ 1903(8) and (12) (1994).
Here, the Fort Peck Tribal Court has never declined jurisdiction. Counsel for the tribe merely stated the tribe would resist the transfer.
Curiously, the trial court did not need a formal declination of jurisdiction from the tribal court if it found that good cause existed not to transfer the case on mother’s request and there was no objection to the transfer from father. The trial court made no such finding and, arguably at least, the trial court may have inferentially found it did not have good cause to retain jurisdiction since it did find it needed a formal declination of jurisdiction before it could proceed with the case.
As a result, we hold the trial court failed to comply with the ICWA in determining whether to transfer the case to the tribal court. In order to comply with the ICWA, the trial court must obtain a declination of jurisdiction from the tribal court or make a finding that good cause exists not to transfer the case to the tribal court. 25 U.S.C. § 1911(b).
We do not feel we are being overly technical in our holding. As we read the ICWA, its clear language requires this result.
Reversed and remanded with instructions that the trial court comply with 25 U.S.C. § 1911(b). | [
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Marquardt, J.:
Tommie L. Friday appeals from the order dismissing her lawsuit for failure to follow the appraisal clause in her homeowner’s insurance policy.
Friday’s house was insured by Trinity Universal of Kansas (Trinity). On October 28, 1994, Friday’s house caught on fire and sustained extensive damage. Friday and Trinity could not agree on the amount of loss. Trinity made an offer to Friday and stated that if Trinity and Friday could not agree on the amount of the loss, Trinity intended to invoke the appraisal provision of the insurance policy. Friday rejected the offer and informed Trinity that she had filed a lawsuit in district court. Friday also told Trinity that the appraisal provision was “merely an arbitration agreement by another name,” which violated K.S.A. 5-401 and was not enforceable.
Friday’s petition requested a judgment against Trinity for damages totalling $46,805.39. Trinity filed a motion to dismiss, stating that Friday had not complied with the provisions of the insurance policy in that she had refused to participate under the mandatory appraisal provision. The district court dismissed Friday’s petition, finding that the appraisal clause was not an arbitration agreement. The district court also found that even if “the ‘appraisal clause’ could be construed as an arbitration agreement, . . . the Federal Arbitration Act would probably preempt the Kansas Arbitration Act.”
APPRAISAL CLAUSE
There is no Kansas case interpreting the appraisal clause in a homeowner’s insurance policy.
Regardless of the construction given a written contract by a district court, an appellate court may construe a written contract and determine its legal effect. Federal Land Bank of Wichita v. Krug, 253 Kan 307, 311-12, 856 P.2d 111 (1993).
The appraisal clause of the insurance policy was set out in the district court’s order of dismissal as follows:
“Appraisal. If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within twenty (20) days after receiving a written request from the other. The two appraisers will choose an umpire; the appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of the loss.”
Another part of the insurance policy was also set out by the district court as follows: “Suit Against Us. No action can be brought unless the policy provisions have been complied with.”
An appraisal is defined as a “valuation or an estimation of value of property by disinterested persons of suitable qualifications. The process of ascertaining a value of an asset or liability.” Black’s Law Dictionary 100 (6th ed. 1990). An appraisal clause is defined as a “clause in [an] insurance policy providing that the insurer has the right to demand an appraisal of the loss or damage.” Black’s Law Dictionary 100 (6th ed. 1990).
In Seide, A Dictionary of Arbitration and Its Terms, p. 21 (1970), appraisal has been defined as follows:
“A valuation of property by one or more especially qualified and impartial persons.
“The appraiser makes his valuation according to his own skill, knowledge, and experience. Some courts have declared that an appraisal is not in itself an arbitration proceeding, since no controversy exists. Unless such a specific provision is made in the agreement, an appraisal provision is not regarded as an intention to take evidence, or to hear arguments in the presence of the parties. An appraisal in California is considered to be similar to an arbitration award. In New York State, CPLR § 7601 provides that a party may move to compel an appraisal, and that it shall be subject to the provisions of the law governing arbitration.”
Black’s Law Dictionary 105 (6th ed. 1990) defines an arbitration clause as “a clause inserted in a contract providing for compulsory arbitration in case of dispute as to rights or liabilities under such contract____The purpose of such clause is to avoid having to litigate disputes that might arise.”
“It is characteristic of arbitration that it is intended by the parties to be an absolute and final determination of the matter in controversy.” Kellor, Arbitration in Action, p. 7 (1941).
Two Kansas cases involving fire insurance policies, McKenzie v. Fidelity-Phenix Fire Ins. Co., 133 Kan. 721,3 P.2d 477 (1931), and Syndicate Co. v. Insurance Co., 85 Kan. 367, 116 Pac. 620 (1911), use the words “appraisal” and “arbitration” interchangeably; however, the question of whether the appraisal process is synonymous with binding arbitration was not an issue in either case.
Guild v. Railroad Co., 57 Kan. 70, 45 Pac. 82 (1896), is the only Kansas case to consider the difference between appraisal and arbitration. Guild did not involve a fire insurance policy but rather valuation of land pursuant to a negotiated contract between a seller and a purchaser, who had contracted to have appraisers determine the value of land to be sold.
The facts in Guild are clearly distinguishable from the instant case. In Guild, the parties negotiated the contract to sell and buy real property. In the instant case, the insurance policy was provided by Trinity and the terms were not negotiated. Guild was decided 100 years ago, almost 80 years before the first version of K.S.A. 5-401 was enacted.
In some jurisdictions the procedure which disposes of the entire controversy is called arbitration, and the procedure which is limited to determining the value of property or the amount of a loss is called appraisal. 44 Am. Jur. 2d, Insurance §§ 1680-81, pp. 669-70; 14 Couch on Insurance 2d §§ 50:5-50:6 (1982). It is impossible to apply the distinction to the instant case because the amount of the loss is the only issue between Trinity and Friday. Once the amount of the loss is determined, it will dispose of the entire case.
Cases from other jurisdictions support the claim that the appraisal clause is an arbitration clause. U.S. Fire Ins. Co. v. Franko, 443 So. 2d 170, 171 (Fla. Dist. App. 1983), involves an insurance contract requiring appraisal before the insured can file suit. The Franko court calls the appraisal clause an arbitration agreement. In Beard v. Mount Carroll Mut. Fire Ins. Co., 203 Ill. App. 3d 724, Syl. ¶ 2, 561 N.E.2d 116 (1990), the court held that the appraisal provision in an insurance contract was “analogous” to an arbitration clause and, therefore, it was enforceable as an arbitration clause. Appraisal does not follow the same procedure as an arbitration, but it has been recognized as serving the same purpose as an arbitration in that it provides for settling future disputes without a judicial proceeding. 203 Ill. App. 3d at 727-28.
An appraisal clause in an insurance policy that requires the parties to submit the determination of the amount of the loss to appraisers is an arbitration clause.
We hold that the district court erred in finding that the appraisal clause in Trinity’s policy is not an arbitration clause. ■
THE APPRAISAL CLAUSE IN CONJUNCTION WITH K.S.A. 5-401.'
Friday contends that an appraisal clause requiring‘that a disagreement on the amount of the loss be submitted to appraisers as a precondition to filing a legal action violates the Kansas -Uniform Arbitration Act (KUAA), K.S.A. 5-401 et seq. Friday argues that the appraisal clause in the insurance contract is unenforceable. K.S.A. 5-401(c)(l) provides that a written agreement requiring submission of an existing controversy to arbitration shall not apply to insurance contracts.
Here, the district court found that even if the appraisal clause is found to be an arbitration clause, the part of the KUAA relied upon by Friday was preempted by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq. (1994). Friday responds that the exception to federal preemption provided in the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015 (1994), is applicable and, therefore, the KUAA is not preempted.
In Baxter v. John Weitzel, Inc., 19 Kan. App. 2d 467, 871 P.2d 855, rev. denied 255 Kan. 1000 (1994), an employee argued that the arbitration clause of an employment contract could not be enforced because it violated K.S.A. 5-401(c)(2). The Baxter court ruled that K.S.A. 5-401(c)(2) exempted employment contracts from the KUAA and the arbitration clause could be revoked by either party. The employee was not required to submit to arbitration and was allowed to proceed with litigation. 19 Kan. App. 2d at 475.
The question of K.S.A. 5-401(c)(l) and preemption of arbitration clauses in insurance contracts was discussed in Mutual Reinsurance Bureau v. Great Plains Mut., 969 F.2d 931 (10th Cir. 1992), cert. denied 506 U.S. 1001 (1992). In this case, an insurance company claimed that an arbitration agreement was unenforceable under K.S.A. 5-401 and the McCarran-Ferguson Act. The Tenth Circuit agreed and stated that the McCarran-Ferguson Act provides that no act of Congress shall invalidate, impair, or supersede any state law enacted for the purpose of regulating the business of insurance. The court further found that K.S.A. 5-401 was enacted for the purpose of regulating the business of insurance. 969 F.2d at 932. Because the FAA would conflict with the Kansas statute excluding insurance contracts from valid arbitration agreements, the court held that the McCarran-Ferguson Act precluded application of the FAA to a Kansas insurance contract. 969 F.2d at 933-34.
The McCarran-Ferguson Act prevents the FAA from preempting K.S.A. 5-401(c)(l). K.S.A. 5-401(c)(l) controls and invalidates the appraisal clause in an insurance contract.
We hold that the appraisal clause in Trinity’s insurance policy is an arbitration clause and, therefore, it is not enforceable. The district court’s order of dismissal is reversed, and Friday is permitted to pursue her litigation on the issue of the amount of her loss.
Reversed. | [
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Becker, J.:
This case consolidates appeals from two orders in a conservatorship proceeding. Appellant, Ralph D. Heck, son and heir-at-law of Ralph H. Heck, appeals the probate court’s order approving, in part, an accounting by the conservator, Deborah Archer, daughter of Ralph H. Heck, and a later order approving the final accounting and discharge of Archer as conservator. (Due to the similarity in names and in an effort to avoid confusion, Ralph H. Heck, father and conservatee, will be referred to as “Heck”; appellant and son, Ralph D. Heck, will be referred to as “Ralph”; and conservator and daughter, Deborah J. Archer, will be referred to as “Archer.”)
The chronology of filings in the district court make up the pertinent facts.
On January 14, 1993, due to the hospitalization of Heck and his comatose state, Archer filed a petition for appointment of guardian and conservator pursuant to K.S.A. 59-3009. Notice was given to Heck through court-appointed counsel and to Heck’s adult children, including Ralph, the appellant. On January 28, 1993, the district court determined Heck to be a “disabled person” as defined in K.S.A. 59-3002(a), and appointed Archer guardian and conservator. Apparently without any objection, the court entered the following orders:
“B. Deborah J. Archer is appointed as guardian over the person of Ralph H. Heck with full powers, and upon filing of an Oath, Letters of Guardianship shall be issued to her.
“C. Deborah J. Archer is appointed as Conservator of the estate of Ralph H. Heck with full powers, and upon filing of an Oath and Bond in the amount of $375,000.00, Letters of Conservatorship shall be issued to her.”
Heck died on February 12,1993. Ralph filed a petition on March 16,1993, seeking disclosure of the existence, disposition, and status of the property of the conservatorship. In response, Archer filed an inventory and valuation and preliminary accounting on March 22, 1993.
Not until May 7, 1993, did Archer file an administrator’s bond and oath of conservatorship as called for in the court’s order of January 28, 1993. The court approved the bond and issued letters of conservatorship the same day the bond and oath were filed.
Four months later, on September 30, 1993, Archer filed a petition to terminate the guardianship and conservatorship, for approval of payment of fees and expenses, and for approval of her final accounting. The court issued an order terminating the guardianship/conservatorship on October 7, 1993. As part of that order, the district court scheduled a hearing on the final accounting. Minutes prior to the hearing on the final accounting, Ralph filed an answer and defense to Archer’s petition for termination and payment of fees, specifically objecting to the approval of Archer’s final accounting and alleging that Archer had concealed or converted some of Heck’s property. This was the first filing by Ralph expressing any objection or alleging any misconduct. All previous actions by Archer and the court were without objection.
During this hearing, Archer admitted she purchased a 1988 Jeep Wrangler for $8,000 with money from one of Heck’s bank accounts; the account was a payable-on-deafh account naming Archer as beneficiary. The vehicle was titled in her and her husband’s name. No action was taken by the district court at this time. Following the hearing, the parties engaged in discovery in this case and also a pending estate administration proceeding.
On June 7, 1994, Archer filed a petition for approval of annual accounting and payment of fees and expenses. Ralph again filed a last-minute answer and defense, asserting that disbursements had been made without legal or lawful authority and made for the personal benefit and use of Archer. Ralph alleged for the first time that Archer failed to submit the oath and bond as required by state law and converted her father s property to her own personal use. Ralph requested that Archer s claims be denied or reduced by penalties for conversion provided for in K.S.A. 59-1711.
A hearing was held on Archer’s petitions on June 22, 1994. Archer admitted that two of the disbursements listed on the accounting, totalling $8,562.49, were payments for a 1988 Jeep and taxes and tags associated with that vehicle, but she did not ask that those expenses be approved as conservatorship expenses. During this hearing, Ralph challenged the propriety of the Jeep disbursements, Archer’s claim for conservator’s fees for her time and the time spent by Archer’s attorney, and the propriety of the orders of conservatorship and disbursements prior to the issuance of the letters of conservatorship.
On June 28, 1994, the district court issued a journal entry and order of the court. In the order the district court accepted the accounting but disallowed $8,562.49 in disbursements (the Jeep-related expenses). The court approved Archer’s claims of fees, albeit at a lower hourly rate, and approved the attorney fees and expenses. Ralph filed a timely notice of appeal pursuant to K.S.A. 59-2401(a)(10) and (13). That appeal is Court of Appeals case No. 72,440.
Another hearing was set by the court for July 18, 1994, on the petition to close the estate. Ralph questioned the court’s jurisdiction and otherwise raised the issues pertaining to Archer’s lack of authority to act as conservator, arguing that the conservatorship terminated at Heck’s death on February 12, 1993. The district judge rejected the jurisdictional argument. During the hearing Ralph presented evidence regarding various items of personal property he had seen in his father’s possession prior to Heck’s 1988 move to Olathe. The evidence indicated that many items of personal property; mostly furniture, were not listed on the conservatorship’s inventory or otherwise accounted for in the accounting. However, Ralph had had extremely limited contact with Heck since 1988. Archer claimed she received some furniture and personal property from her father and/or grandparents prior to the conservatorship proceeding..
The court approved the final accounting and inventory and directed Archer’s counsel to submit a request for final fees. On August 17, 1994, the court issued an order terminating the conservatorship and allowing the payment of fees and expenses. The order indicated that Ralph had not met the burden of proving his defenses against the accounting. Ralph filed a timely notice of appeal; that appeal is Court of Appeals case No. 72,723.
I
The first issue raised by Ralph is whether the district court had subject matter jurisdiction over the proceeding when conservatee Heck died after Archer was named conservator but prior to issuance of letters of conservatorship.
Ralph contends the conservatorship terminated on Heck’s death on February 12,1993, pursuant to K.S.A. 59-3028(a)(2). He argues that because no letters of conservatorship had been issued, the conservatorship never came into existence. Relying upon In re Guardianship and Conservatorship of Fogle, 17 Kan. App. 2d 357, 837 P.2d 842 (1992), Ralph contends that Archer’s posting of bond and filing an oath were jurisdictional precedents to the conservatorship proceedings.
This court, in Fogle, held that failure to comply with the notice requirements of K.S.A. 59-3010 "deprives the court of jurisdiction over the person of the proposed ward and/or conservatee” and failure to give notice rendered the court’s subsequent rulings void for lack of personal jurisdiction. 17 Kan. App. 2d at 361.
However, this case and Ralph’s arguments do not concern the failure to comply with notice and due process requirements. The Fogle case went on to state that the actions of the guardian/conservator were valid, however, because those actions were done under the color of the authority granted the district court. 17 Kan. App. 2d at 362. Ralph’s reliance on Fogle is misplaced since the jurisdictional issue was limited to personal jurisdiction. There is no dispute in this case that the court had jurisdiction over Heck.
K.S.A. 59-3009 provides that any person may file in the district court of the county of the residence or presence of the proposed conservatee a verified petition for appointment of conservator. There is no dispute that Heck was a Johnson County resident and had been since 1988. Therefore, the district court clearly had subject matter jurisdiction over the estate when the petition was filed.
Ralph contends that the court’s subject matter jurisdiction terminated upon Heck’s death by operation of law. K.S.A. 59-3028(a) states that “conservatorship of a conservatee shall terminate upon any of the following conditions: ... (2) upon the death of the ward or conservatee.” To address Ralph’s argument, therefore, the court must interpret 59-3028 to determine whether its provisions terminate the court’s jurisdiction.
Interpretation of a statute is a question of law and subject to unlimited review by this court. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). In interpreting the Act for Obtaining a Guardian or Conservator (Act), K.S.A. 59-3001 et seq., the entire act must be read in pari materia to reconcile and harmonize the various provisions when possible. See In re Stremel, 233 Kan. 136, 140, 660 P.2d 952 (1983).
By its plain terms, 59-3028 terminates conservatorships automatically upon the death of the conservatee. Under the Act, however, a termination of the conservatorship does not immediately terminate the jurisdiction of the district court or the legal obligations of the conservator. Other provisions of the Act clearly require ongoing participation by the court and the conservator in closing the proceeding. K.S.A. 59-3029(b) requires every conservator to present a verified final account and a petition to settle and allow payment “[a]t the termination of the conservatorship.” The conservator cannot be discharged from his responsibilities until after all of the property of the conservatorship estate has been adequately accounted for and delivered to the person entitled to receive the same. K.S.A. 59-3031. The Act also expressly permits the court, in cases where the conservatee has died, to order the conservator to pay “appropriate funeral expenses and the expenses of the conservatee’s last illness.” K.S.A. 59-3026. The Supreme Court has recognized that while 59-3028 causes a conservatorship to be terminated upon the death of the conservatee, there remains the final step of the conservator’s accounting and settlement. In re Estate of Ingram, 212 Kan. 218, 224, 510 P.2d 597 (1973); see also 39 C.J.S., Guardian & Ward § 38 (all powers and duties of the guardian normally cease upon the death of the ward, except the duty to make a proper accounting and settlement with the court).
Reading the Act in its entirety, it is clear that 59-3028 does not terminate the subject matter jurisdiction of the court once jurisdiction is properly invoked under 59-3009. There is no authority that the issuance of letters of conservatorship constitutes a prerequisite to the jurisdiction of the court. The letters of conservatorship, which are issued after the conservator files the oath and bond, only relate to the conservator’s judicially recognized authority to act on behalf of the conservatee. K.S.A. 59-3014(d); see 39 C.J.S., Guardian & Ward § 34.
In this case, subject matter jurisdiction attached at the time the proceeding was properly commenced on January 14, 1993, and continued until the proceeding was properly concluded by an accounting and discharge. Under the Act, a conservatorship proceeding can be terminated in only two ways. If the court finds at the original hearing that the proposed conservatee has not been shown to be disabled by clear and convincing evidence, the court must enter an order terminating the proceeding. K.S.A. 59-3013. If the conservatee is found to be disabled, however, the conservatorship proceeding can only be terminated upon the filing and settling of the conservator’s final accounting and the discharge of the conservator. K.S.A. 59-3031.
Under the statutory scheme, even if an appointed conservator never files a bond or oath and never assumes control over the assets of the conservatee, she arguably would have the obligation under Kansas law to make an accounting annually and at the termination of the conservatorship. The. validity (or lack thereof) of the conservator’s actions in controlling the assets of the conservatee should not affect whether the court has jurisdiction over the proceeding. Accordingly, the district court had subject matter jurisdiction over the proceeding. The trial court did not err in rejecting Ralph’s jurisdictional argument.
II
Ralph next argues that the court lacked “jurisdiction” to approve the accounting and discharge Archer from her conservatorship obligations under the circumstances of this case. As discussed above, it is clear that the district court had subject matter jurisdiction over the proceeding even after Heck’s death. Appellant’s argument can be construed, however, as challenging the court’s authority to approve the accounting as opposed to attacking the court’s subject matter jurisdiction. Ralph’s argument essentially is that the district court was prohibited by statute from approving the accounting because Archer did not timely comply with the court’s order requiring the oath and bond or with K.S.A. 59-3014, and, because Archer’s actions were null and void on account of Heck’s intervening death.
The record reflects that disbursements were made from the conservatee’s estate as early as January 14, 1993 (the date the petition for appointment of guardian and conservator was filed). Disbursements continued to be made regularly both before and after the order appointing Archer as conservator (January 27, 1993), and before and after letters of conservatorship were issued (May 7, 1993). During the hearings before the district court, Ralph specifically objected only to a few of those disbursements. Only one disbursement prior to the issuance of letters of conservatorship was challenged: a February 1993 payment to the attorney representing Archer in the conservatorship. Several post-letter disbursements were challenged, including die Jeep expenses the district court disallowed, the payment for the conservator’s time, and the conservator’s attorney fees.
Once a petition for appointment has been filed and heard, K.S.A. 59-3014(d) controls the actual appointment of the conservator. That statute provides:
“Upon the filing of a bond in such an amount as the court may direct and an oath according to law, letters of conservatorship shall be granted. ... If the court . . . has made a finding that the disabled person is unable to make any decisions which affect the property of the disabled person ... a conservator shall be possessed of all powers and duties of a conservator as set out in K.S.A. 59-3019 and amendments thereto.”
Under this statute, letters of conservatorship cannot be issued without the conservator filing proof of the statutorily required bond. The Act, however, does not provide any specific deadline for the filing of the conservator’s bond and oath. This should be compared with K.S.A. 59-2227 of the probate code, which requires the person appointed as executor or administrator to qualify within 10 days or risk the granting of letters to ánother. In addition, the Act’s definition of “conservator” does not directly refer to the bond or the oath, nor does it refer to the possession of letters of conservator-ship. K.S.A. 59-3002(f).
As a general rule, unless the appointed conservator has complied with this condition precedent, he is not entitled to act as conservator or to take possession of, and control, the property of his ward. 39 G.J.S., Guardian & Ward § 31, p. 69. However, there are no Kansas cases interpreting 59-3014 and the effect, if any, of a conservator’s delay in filing a bond and oath. This is a case of first impression under the Act.
Ralph argues that the requirement of posting a bond and filing an oath under 59-3014 is mandatory, rather than directory, and that failure to comply with the mandatory requirements nullifies the purported conservator’s actions. As noted by this court in Fogle:
“ ‘No absolute test exists by which it may be determined whether a statute is directory or mandatory. Each case must stand largely on its own facts, to be determined on an interpretation of the particular language used. . . . It has been said that whether a statute is directory or mandatory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, when a. particular provision of a statute relates to some immaterial matter, as to which compliance with die statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and a statute is regarded as directory where no substantial rights depend on it, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results.’ ” 17 Kan. App. 2d at 360 (quoting Wilcox v. Billings, 200 Kan. 654, 657, 438 P.2d.108 [1968]).
It is difficult to categorize the filing of a bond as a “matter of convenience.” Clearly, the posting of a bond is significant in order to protect the conservatee’s rights by allowing another to control his estate. On the other hand, the filing of an oath is not an . act that would impact substantial rights.
Even if statutoiy language requiring the filing of a bond and oath is mandatory rather than directory, this determination does not resolve this case. The record reflects that Archer actually filed an oath and proof of a bond approved by the district court. The real issue is whether Archer’s delay in complying with the statute invalidates her actions or deprives her of the right to seek approval of her disbursements.
It appears that Kansas law regarding fiduciaries supports the validity of the fiduciary’s actions prior to posting of a bond by finding the actions to be voidable by the court, but not void. See Morris v. Winderlin, 92 Kan. 935, 940, 142 Pac. 944 (1914); Hunt v. Insley, 56 Kan. 213, 216, 42 Pac. 709 (1895). ;
The current statutes providing for appointment of conservators have an inherent delay built into the proceedings. There is up to a 14-day delay between the filing of a petition for the appointment of a conservator and the hearing on the petition. K.S.A. 59-3010(a)(1). This hearing can be continued upon order of the court. K.S.A. 59-3011(a)(2).
Based upon the procedures required by the Act, did the legislature intend to prohibit an appointed conservator from taking any action on behalf of the conservatee prior to the posting of a bond and receipt of the letters of conservatorship? We think not. As a practical matter, a proposed conservator should not have to arrange for a bond prior to the court’s order determining that the conservatee is disabled. In addition, it is not unreasonable to assume that a person seeking appointment as conservator may be required to expend money on behalf of the proposed conservatee prior to his official appointment and/or the issuance of letters of conservator-ship.
The Act has built-in protections which militate against a restricted reading of the bond requirement. During a reasonable delay in filing the appropriate bond and oath, the interests of the conservatee (and his ultimate heirs) can be adequately protected by the court’s general supervisory authority over the conservator. The district court has broad powers to remove the conservator and reduce or order forfeiture of the conservator’s compensation when there has been a breach of duty. K.S.A. 59-1711; In re Conservatorship of McCoy, 19 Kan. App. 2d 31, 34-35, 861 P.2d 1378 (1993). Likewise, a conservator cannot be discharged from his responsibilities and liabilities until a final accounting has been filed, notice given to interested parties, a hearing held, and approval obtained from the district court. See K.S.A. 59-3030; K.S.A. 59-3031; In re Conservatorship of Holman, 18 Kan. App. 2d 173, 177, 849 P.2d 140 (1993). Therefore, a conservator who fails to immediately post a bond runs the risk of being removed and/or having his compensation reduced or forfeited. Moreover, the judicially appointed conservator falls within the definition of “fiduciaiy,” whether or not letters have been issued, and can be held hable under K.S.A. 59-1704 if property of the conservatee is converted.
In this case, the district court issued letters of conservatorship 100 days after the initial appointment of Archer and 85 days after Heck’s death. Ralph did not appeal from the issuance of the letters of conservatorship even though 59-2401(a)(2) permits appeals from any order appointing a fiduciary “other than a special administrator.” Ralph did not seriously raise any question of the court’s jurisdiction until the July 1994 hearing.
From and after May 7, 1993, Archer possessed the letters of conservatorship and acted under the color of authority granted by the district court, and her actions would be valid, subject to the review of the court. See Fogle, 17 Kan. App. 2d at 362 (actions of guardian were valid when guardian acted under color of authority granted by the district court even though appellate court found personal jurisdiction lacking).
Under the circumstances of this case, we conclude that the Act does not prohibit a district court from considering and approving a conservator’s disbursements and accounting solely because the conservator did not file a bond or oath timely. Recognizing the potential for abuse by conservators, the district court has authority under 59-3031 to closely scrutinize the disbursements both before and after the posting of the bond to determine their allowance. This provides a sufficient safeguard from such abuse.
Ill
Based upon the above conclusions, the final issue of whether the district court erred in allowing expenses and discharging Archer as conservator must be addressed.
At the district court level, Ralph relied on Archer’s delay in filing a bond and oath and alleged conversion of certain personal property in challenging the final accounting and request for discharge of conservatee. On appeal, Ralph again argues the court’s jurisdiction and authority to enter such orders. Ralph does not challenge the appropriateness or validity of the disbursements and claims submitted.
Where the appellant fails to brief an issue, the issue is waived or abandoned. Pope v. Ransdell, 251 Kan. 112, 119, 833 P.2d 965 (1992). Moveover, a point incidentally raised but not argued is deemed abandoned. McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994).
Even assuming that Ralph’s brief can be construed to raise this issue on appeal, the district court did not err. K.S.A. 59-1717 provides that “[ejvery fiduciary shall be allowed his or her necessary expenses incurred in the execution of his or her trust, and shall have such compensation for services and those of his or her attorneys as shall be just and reasonable.” Determination of the reasonableness of such expenses are subject to the trial court’s discretion and will be reversed only when that discretion is abused. In re Conservatorship of L.M.S., 12 Kan. App. 2d 725, 729, 755 P.2d 22 (1988).
In this case, there was no real evidence that Archer converted any of her father’s accounts to her own use prior to his death. The record reflects that all of the expenditures, except those related to the Jeep, were normal and reasonable expenses to maintain Heck during his illness and to pay his funeral expenses and final medical bills. As noted above, the Jeep was purchased with money from a payable-on-death account which listed Archer as beneficiary. While it certainly would have been more prudent to delay the pur chase of the Jeep until after the conservatorship was closed, it does not violate the conversion statute, 59-1704.
Ralph also alleged that Archer converted family heirlooms or Heck’s personal properly. Based upon the minimal evidence on this issue, the district court found that Ralph failed to carry his burden of proof. A negative finding that a party has not carried the burden of proof will not be disturbed absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. Morrison v. Watkins, 20 Kan. App. 2d 411, 426, 889 P.2d 140, rev. denied 257 Kan. 1093 (1995). Ralph has presented no evidence to overturn the district court’s negative finding on this issue.
Finally, Ralph failed to establish that the district court abused its discretion in the amount of fees it allowed to be paid to Archer or the attorney representing her as conservator. The amount allowed was not excessive in light of Ralph’s challenge to the conservatorship, the delays caused by discovery, Ralph’s late filing of defenses to the accounting, and the multiple hearings held in this matter. “ ‘Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’ ” In re Marriage of Wade, 20 Kan. App. 2d 159, 168, 884 P.2d 736 (1994) (quoting Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 [1973]).
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Smith, J.:
Mary A. Jones and William J. Jones were divorced on June 8, 1982. Two children, April and Sandra, were bom of the marriage. The decree of divorce incorporated a property settlement agreement dated May 26,1982. The agreement originally set William's child support obligation at $1,200 per month. That amount was stricken, and the sum of $1,800 per month was inserted and initialed by both parties. William has paid $1,200 per month from the beginning. At a 1987 hearing concerning health insurance, no claim for back child support payments was raised by Mary.
On May 10, 1994, Mary filed a motion for revivor to collect the deficiency in support payments from William. At the time Maiy filed this motion, April was 19 years old and Sandra was 16 years old.
William filed a motion to terminate alimony and a motion to set aside the alimony judgment.
At the hearing on the motions, Mary testified the reason for the modification in child support amount was that she needed to qualify for a loan. William testified he did not remember any modification and had paid $1,200 per month from the beginning, as this was his understanding of the agreement. Mary testified that she knew William owed $1,800 per month, but she had not raised the deficiency issue since 1982 because she thought she might lose her alimony.
At the hearing on the motion for revivor in 1994, the court ruled that Mary was guilty of laches and that it would be inequitable and inappropriate for her to recover back payments dating back to June 25, 1982. It also denied William’s motions to terminate alimony.
Both Mary and William appeal from the trial the court’s rulings.
Mary claims that the dormancy and revivor statutes found in K.S.A. 60-2403 and K.S.A. 60-2404 supersede the equitable doctrine of laches. She also argues that because their daughter Sandra is still a minor, the doctrine of laches cannot apply to her.
“Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
“The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state; 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.” K.S.A. 77-109.
K.S.A. 60-2403(a) states that a judgment becomes dormant 5 years after the date of entry of a judgment. When a judgment remains dormant for years, it may be extinguished. However, there are exceptions to this rule in K.S.A. 60-2403(b):
“(1) If a judgment for the support of a child becomes dormant before the child’s emancipation, it shall be the duty of the clerk of the court to release the judgment of record when requested to do so only if the judgment has remained dormant for the period prior to the child’s emancipation plus two years. When, after the child’s emancipation, a judgment for the support of a child becomes and remains dormant for a period of two years, it shall be the duty of the clerk of the court to release the judgment of record when requested to do so.
“(2) The provisions of this subsection shall apply only to those judgments which have not become void as of July 1,1988.”
Prior to July 1,1988, a judgment was considered dormant 5 years from the date of the judgment, and after remaining dormant for 2 years, the clerk of the court could release the judgment. See K.S.A. 1987 Supp. 60-2403; K.S.A. 1985 Supp. 60-2403; K.S.A. 1984 Supp. 60-2403. Thus, prior to 1988, all judgments that were more than 7 years old would have been void. In the instant case, none of the judgments would be void because the payments were to begin on June 25, 1982; thus, 7 years had not elapsed on any of the support judgments. Therefore, the 1988 amendment to K.S.A. 60-2403 would apply to the support judgments in the present case.
K.S.A. 60-2404 states in pertinent part;
“If the motion for revivor was filed within two years after the date on which the judgment became dormant or, in the case of a child support judgment, was filed during the period prior to the child’s emancipation, within two years after the child’s emancipation or within two years after the judgment became dormant, whichever is later, on the hearing thereof the court shall enter an order of revivor unless good cause, to the contrary be shown, and thereupon the execution shall issue forthwith. On the hearing of a motion to revive a child support judgment, the court may enter an order to prevent the unjust enrichment of any party or to ensure that payments will be disbursed to the real party in interest." (Emphasis added.)
“The doctrine of laches is an equitable principle designed to bar stale claims. When a party neglects to assert a right or claim for an unreasonable and unexplained length of time and the lapse of time and other circumstances cause prej udice to the adverse party, relief is denied on the grounds of laches. The mere passage of time is not enough to invoice the doctrine. For laches to apply, the court must consider the circumstances surrounding the delay and any disadvantage to the other party caused by that delay.” Steele v. Guardianship & Conservatorship of Crist, 251 Kan. 712, Syl. ¶ 9, 840 P.2d 1107 (1992).
K.S.A. 60-2404 specifically states that, “the court shall enter an order of revivor unless good cause to the contrary be shown.” The statute does not specifically define what is meant by “good cause.” We find that equitable principles such as laches guide the court in its determination of what good cause entails. Thus, we find the legislature did not abrogate equitable remedies in enacting the dormancy and revivor statutes.
During the revivor hearing, the 1994 court noted that Mary had listed her child support income as $1,200 rather than $1,800 on certain documents. Mary also testified that on certain occasions she was paid child support directly by William and then she would receive an additional check from the court; on the occasions when double checks were issued, she discarded one of the checks instead of cashing them both. Further, at a 1987 hearing concerning health insurance, Mary made no claim for back child support payments. It is evident from the trial court’s findings that Mary neglected the enforcement of any claim for the additional $600 for a period of almost 12 years.
In its findings of fact in the journal entry, the 1994 court found:
“At no time did Petitioner and Respondent intend that Respondent would pay Petitioner $1,800 per month. The true intention of the parties at all times was that Petitioner was to receive $1,200 per month. The evidence is clear that Petitioner never did request more than $1,200 per month child support and that Respondent was reasonably prompt and did make all child support payments at the rate of $1,200 per month starting June 25, 1982.”
The 1994 court found, in its conclusions of law:
“As a matter of law . . . Petitioneris guilty of laches and . . . it would be wholly inequitable and inappropriate for Petitioner to be able to now go back all the way to June 25, 1982, and seek to recover $600 per month, which represents the difference between the original number inserted in the Agreement and the number placed in the final Decree.”
During trial, the 1994 court stated;
“I think it is clear that it would be terribly inequitable to now go back and enforce something, I don’t even know how much this would come to, hundreds of thousands of dollars, imagine with interest but 70 or $90,000, $600 a month when both of these parties they have been constantly in contact with each other. The support payments have been made every single month.”
The specific circumstances of this case warrant the doctrine of laches being used even though the statute of limitations has not run, as the 1994 court found “good cause” to not issue the order of revivor.
There is case law in Kansas that supports the use of laches in child support cases. In McKee v. McKee, 154 Kan. 340, 341, 118 P.2d 544 (1941), the child support was initially set at $70 per month in 1920. Later, in 1920, it was reduced to $60 per month by an order of the court. In 1921, the father began paying $50 per month under the assumption that a court order had been made reducing his payments. The mother accepted such payments for the next 19 years. She took no steps to enforce the payment of the $60 per month obligation. The child was no longer a minor at the time the mother was attempting to collect the deficiency, and, moreover, the child had executed a release of both parents. The court held:
“While lapse of time alone will not ordinarily support a defense of laches, it has been held sufficient to make the doctrine applicable in cases where it would be clearly inequitable to permit the enforcement of bare legal rights [citation omitted], orwhere the delay in asserting rights has been wholly unreasonable. [Citation omitted.] However, we have here much more than mere lapse of time. We have acquiescence on the part of appellee — an important factor in determining whether there has been such laches as will bar recovery. [Citations omitted.] We have the affirmative acts of appellee accepting the monthly payments, without complaint, through the years.” McKee, 154 Kan. at 343-44.
In Clark v. Chipman, 212 Kan. 259, 263, 510 P.2d 1257 (1973), the Kansas Supreme Court found that laches applied where the mother made no attempt to recover amounts she claimed were due under the settlement agreement for child support for approximately 6 years. We note that both children were over 18 at the time the mother attempted to recover.
In Strecker v. Wilkinson, 220 Kan. 292, 293, 552 P.2d 979 (1976), the father stopped paying child support after being advised by the district court in a letter that an order terminating child support had been entered. Seven years later, the mother filed a motion in the district court for contempt for the father’s failure to pay child support. The court found that because the mother had not received notice of the modification, the court had acted without jurisdiction in changing the amount of child support. Strecker, 220 Kan. at 297.
In Strecker, the court discussed McKee and Clark and stated that laches could be considered in cases dealing with a child who has reached the age of majority. It then stated:
“Support of children, like' their custody, is a matter of social concern. It is an obligation the father owes the state as well as his children. [Citation omitted.] The parental duty to provide for the support and maintenance of a child continues through the child’s minority, and the obligation to support may be enforced by an action at any time during the child’s minority. [Citation omitted.] We note in passing that statutes of limitation are considered ‘remedial’ rather than ‘substantive’ in that they bar only the remedy and not the right. [Citation omitted.]
“The doctrine of laches is an equitable device designed to bar stale claims [citation omitted], and its application depends on the special circumstances of each case.” In Peters v. Weber, supra, we said:
‘Under all of the circumstances of the case we are unwilling to hold that defendant is entitled to invoke the defense of laches as a bar to the enforcement of his moral and legal obligation to his minor child. The rights of the latter are not to be waived by the inaction and passive acquiescence on the part of the mother. We are of the opinion the court erred in ruling that defendant was not hable for the payments which became due within five years prior to the commencement of this proceeding.’ [Citation omitted.]” Strecker, 220 Kan. at 298.
The Strecker court did not directly address the issue of whether laches could be used in the case of minor children and dealt with the circumstance of a father making no attempt to pay support. In the instant case, William promptly paid the amount that the 1994 court found William and Mary had intended to be the proper amount of child support, but not the amount ordered by the 1982 court. This case can be distinguished upon such grounds from the Strecker case. We find the question remains as to whether there is a failure in any moral and legal obligation of William to support his children.
The facts of this unusual case can best be summarized as Mary and William agreeing to commit a deception on a third party, the bank, and acquiring the unwitting help of the judge by securing an order to aid in that deception. Thereafter, between themselves, they ignored the effect of that deception. Due to their participation in this deception, neither Mary nor William should be enriched because of their involvement in this deception. While harm does not appear to have occurred to the third party, both William and Mary have unclean hands.
“The rule is well recognized in our cotuts that ‘[e]quity will give whatever relief the facts warrant. The distinguishing feature of equity jurisdiction is that it possesses full power to apply settled rules to unusual conditions and to mold its decree so as to do equity between the parties.’ National Reserve Life Ins. Co. v. Hand, 190 Kan. 180, Syl. ¶ 2, 373 P.2d 194 (1962).
“ ‘[A]s a general rule, equity will administer such relief as the nature, rights, facts, and exigencies of the case demand at the close of the trial or at the time of the making of the decree.’ ” Baker v. Tucker, 227 Kan. 86, 91, 605 P.2d 114 (1980).” Barnett v. Oliver, 18 Kan. App. 2d 672, 680, 858 P.2d 1228, rev. denied 253 Kan. 856 (1993).
“The clean hands doctrine is based upon the maxim of equity that he who comes into equity must come with clean hands. The clean hands doctrine in substance provides that no person can obtain affirmative relief in equity with respect to a transaction in which he has, himself, been guilty of inequitable conduct. It is difficult to formulate a general statement as to what will amount to unclean hands other than to state it is conduct which the court regards as inequitable. Like other doctrines of equity, the clean hands maxim is not a binding rule, but is to be applied in the sound discretion of the court. The clean hands doctrine has been recognized in many Kansas cases. (Brooks v. Weik, 114 Kan. 402, 219 Pac. 528; Scott v. Southwest Grease & Oil Co., 167 Kan. 171, 205 P.2d 914; Browning v. Lefevre, 191 Kan. 397, 381 P.2d 524; Seal v. Seal, 212 Kan. 55, 510 P.2d 167; and Anderson v. Anderson, 214 Kan. 387, 520 P.2d 1239.) The application of the clean hands doctrine is subject to certain limitations. Conduct which will render a party’s hands unclean so as to deny him access to a court of equity must be willful conduct which is fraudulent, illegal or unconscionable. (Seal v. Seal, supra.) Furthermore the objectionable misconduct must bear an immediate relation to the subject-matter of the suit and in some measure affect the equitable relations subsisting between the parties to the litigation and arising out of the transaction.” Green v. Higgins, 217 Kan. 217, 220-21, 535 P.2d 446 (1975).
Mary cites other cases to support her argument that laches cannot be used in a child support case, but these cases can be distinguished on other grounds. In Effland v. Effland, 171 Kan. 657, 661, 237 P.2d 380 (1951), the court found that public policy favors providing support for minor children and, therefore, a parent can request support at any time during the minority of the child. Eff-land, however, can be distinguished from the present case in that the mother made no appearance at the original trial. Further, the court did not set any child support in its order. The Kansas Supreme Court found that the father was not relieved of the duty of providing support for his minor child just because of the mother s delay in asking the court for an order requesting him to do so. Effland, 171 Kan. at 661. In the instant case, William was paying the sum of money the parties intended for child support to Mary, and at the time of the action, one child was no longer a minor.
In Peters v. Weber, 175 Kan. 838, 839, 267 P.2d 481 (1954), the plaintiff and defendant were granted a divorce in 1941. The decree provided that defendant was to pay $20 per month for child support. About a year after her divorce, plaintiff remarried, and during the years of her marriage defendant paid nothing towards the support of his child. Plaintiff at no time requested support. In 1953, plaintiff divorced again and filed a motion for an order determining the amount of delinquency from defendant. Defendant raised the defense of laches. The Kansas Supreme Court distinguished this case from McKee by stating:
“In the McKee case we have the affirmative acts of the father in paying $50 per month, and acceptance by the mother for the benefit of the child, for more than nineteen years. Here we are confronted with the fact defendant father paid nothing toward his child’s support following the 1941 divorce — a period of twelve years. The record shows that he had notice of the pendency of the action. In the McKee case the child had become of age, she no longer required or asked support from either parent, and had executed a written release to her father and mother releasing both of them from any further claim as far as the judgment for child support was concerned, all prior to the action of the mother seeking to recover the alleged deficiency. No such circumstances are present here. The child is still a minor, and enforcement of the past-due payments would accrue directly to his benefit.” Peters, 175 Kan. at 843.
Peters can be distinguished from the instant case in that William was providing support for his daughters, the only issue was the amount. Nothing in the record indicates what amount, $1,800, $1,200, or any amount in between, is the obligation of William to his children.
K.S.A. 60-2404 states: “On the hearing of a motion to revive a child support judgment, the court may enter an order to prevent the unjust enrichment of any party or to ensure that payments will be disbursed to the real party in interest.”
Because April had reached the age of majority at the time Mary brought her action, the revivor action brought by Mary cannot be applied to her. Kansas case law interpreting K.S.A. 60-1610(a)(l) states: “K.S.A. 60-1610(a)(l) provides for support and education of minor children, making no provision for application of the funds other than for such support. The statute thus contemplates the use of such funds for support rather than for the reimbursement of funds to the custodial parent for past deficiencies.” Dallas v. Dallas, 236 Kan. 92, 95, 689 P.2d 1184 (1984). It would, therefore, contravene the purpose of the statute to allow Mary to now recover back payments of child support on behalf of her daughter April.
Thus, the 1994 court was within its discretion when it applied the doctrine of laches to the support of April. However, Sandra, a minor at the time of the filing of the motion and not guilty of any unclean hands, continues to be the beneficiary of the moral and legal obligation of William to support his child. The record does not indicate the 1994 court considered whether the $1,200 paid monthly by William satisfied that obligation. If it did not, that trial court should not have applied the equitable remedy to protect William, who also had unclean hands, and should have required him to pay the remaining $600 or such part thereof as is necessary for him to meet his obligation to support Sandra.
This case is therefore remanded to the trial court to determine the amount of back child support payments necessary to meet the moral and legal obligation of William to support Sandra, in excess of that already paid and limited by the amount previously ordered by the 1982 court, if any.
William argues that the agreement may be reformed to reflect the true intent of the parties.
“The equitable remedy of reformation of written instruments is the remedy afforded by courts of equity to the parties and the privies of parties to written instruments which import a legal obligation, to reform or rectify such instruments whenever they fail, through mistake or fraud, or a combination of fraud and mis take, to express the real agreement or intention of the parties.” 66 Am. Jur. 2d, Reformation of Instruments § 1, p. 526.
Kansas has recognized the equitable remedy of reformation to reform written instruments. See Conner v. Koch Oil Co., 245 Kan. 250, 253, 777 P.2d 821 (1989); Schlatter v. Ibarra, 218 Kan. 67, 70, 542 P.2d 710 (1975). In the instant case, the agreement was incorporated into the divorce decree. Reformation by its very definition is “[a] court-ordered correction of a written instrument to cause it to reflect the true intentions of the parties.” Black’s Law Dictionary 1281 (6th ed. 1990). Once the agreement was incorporated, it transformed into an order of the court. Thus, reformation of the agreement would not be an appropriate remedy.
Under K.S.A. 60-260(b), a court may relieve a party from a final judgment, order, or proceeding for mistake, inadvertence, surprise, excusable neglect, or fraud, misrepresentation, or other misconduct of an adverse party if a motion is made within a reasonable time and not more than 1 year after the judgment, order, or proceeding was entered. The trial court in the instant case found that William was barred by the statute of limitations in K.S.A. 60-260(b). The trial court could have found the order was void under K.S.A. 60-260(b)(4) because of the joint fraud of the parties upon the court and to protect the integrity of the court. It did not, and that decision was within the discretion of the trial court.
William, on cross-appeal, claims that he should not be barred from modifying or setting aside the alimony judgment in favor of Mary.
The agreement contained the following provision:
“The husband shall pay to wife through the Clerk of the District Court as and for alimony the sum of $400.00 per month, commencing June 25,1982, and thereafter on the 25th day of each month, and the sum of $300.00 per quarter year, commencing on July 25, 1982, and thereafter on the 25th day of each third month. Said payments shall terminate upon the death or remarriage of the wife.”
The court approved the agreement and incorporated it into the divorce decree. The agreement did not contain any language giving the trial court authority to modify it.
William asserts three arguments in support of his contention.
First, he argues the trial court was required to terminate spousal maintenance that extended more than 121 months beyond January 1, 1983. He claims that in 1982, K.S.A. 60-1610(b)(2) made it unlawful for a court to award maintenance for a period of time in excess of 121 months, effective January 1, 1983.
At the time the parties entered into the agreement, K.S.A. 1981 Supp. 60-1610(e) and (f) provided:
“(e) Maintenance. The decree may award to either party an allowance for future support denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all of the circumstances. The decree may make the future payments conditional or terminable under circumstances prescribed therein. The allowance may be in a lump sum or in periodic payments or on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due, but no modification shall be made, without the consent of the party liable for the alimony, if it has the effect of increasing or accelerating the liability for the unpaid alimony beyond what was prescribed in the original decree.
“(f) Separation agreement. If the parties have entered into a separation agreement which the court finds to be valid, just and equitable, it shall be incorporated in the decree; and the provisions thereof on all matters settled thereby shall be confirmed in the decree except that any provisions for the custody, support or education of the minor children shall be subject to the control of the court in accordance with all other provisions of this article. Matters, settled by such an agreement, other than matters pertaining to the custody, support or education of the minor children, shall not be subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent.”
Pursuant to subsection (f), the parties could enter into a separation agreement, and such agreement was not subject to modification by the court unless the agreement so stated or the parties subsequently consented to it. In 1982 this statute was revised to say that a trial court could no longer award maintenance for more than 121 months. K.S.A. 1982 Supp. 60-1610(b)(2) (corresponding to subsection [e]). However, K.S.A. 1982 Supp. 60-1610(b)(3) (corresponding to [f]) provided as follows:
“If the parties have entered into a separation agreement which the court finds to be valid, just and equitable, the agreement shall be incorporated in the decree. . . . Matters settled by an agreement incorporated in the decree, other than matters pertaining to the custody, support or education of minor children, shall not be subject to subsequent modification by the court except: (A) As prescribed by the agreement or (B) as subsequently consented to by the parties.”
The statute went into effect on January 1, 1983. K.S.A. 1982 Supp. 60-1610. It is obvious from the plain language of the statute that even after the 1982 amendment, parties could still enter into separation agreements on their own terms, and as long as such terms were valid, just, and equitable, the court could incorporate them into the divorce decree. Again, as in the old statute, such agreement was not modifiable unless the agreement stated or the parties agreed.
In Lambright v. Lambright, 12 Kan. App. 2d 211, 212, 740 P.2d 92 (1987), this court found that the 1982 amendment to 60-1610(b)(2) did not apply retrospectively. In that case, Lambright argued that the legislature intended the 1982 amendment to apply retrospectively to divorce decrees entered prior to January 1,1983. This court found:
“In our view, the legislature did not intend the amendment to operate retrospectively, and since the change of law affected substantive and not procedural rights, the trial court did not err in holding that the 1982 amendment could not be applied retrospectively to extinguish Mr. Lambright’s duty to pay alimony after the expiration of 121 months.” Lambright, 12 Kan. App. 2d at 212-13.
Because the 1982 amendments are not retrospective, the agreement between Mary and William cannot now be modified based on the 1982 amendments.
However, even if the 1982 provisions applied to the instant case, 60-1610(b)(3) would apply because the parties entered into a settlement agreement. “Under K.S.A. 1986 Supp. 60-1610(b)(3) (substantively the same as K.S.A. 1982 Supp. 1610[b][3]), the court has no jurisdiction to modify alimony set by a valid separation agreement incorporated in the decree except as the agreement provides or by consent of the parties.” Bair v. Bair, 242 Kan. 629, Syl. ¶ 3, 750 P.2d 994 (1988). Because the agreement in the instant case did not give trial court the power to modify the agreement, its provisions cannot be changed by the court absent the consent of both parties under either the 1981 version of the statute or the 1982 amendment.
Next, William argues that trial court had jurisdiction under 60-1610(b) to modify the alimony award. He claims that “support” is not setded under any agreement and therefore the court has continuing jurisdiction to modify it. William cites to Spaulding v. Spaulding, 221 Kan. 574, 561 P.2d 420 (1977), for the proposition that a court may modify matters over which it has continuing jurisdiction. In that case, Dr. Spaulding tried to get out of an alimony agreement which terminated only upon the remarriage or death of his ex-wife. The Kansas Supreme Court found:
“The appellant accepted the benefits of the agreement and continued to abide by it for more than two and one-half years. Payment of alimony settled by mutual agreement of the parties, found by the trial court to be valid, just, and equitable, and incorporated in the decree of divorce, is not subject to subsequent modification by the court except as the agreement itself may prescribe or as the parties may consent.” (Emphasis added.) 221 Kan. at 578.
The holding in Spalding goes directly against William’s argument. William also cites to other cases in support of his theory; however, all of these cases can be distinguished. In Martin v. Martin, 5 Kan. App. 2d 670, 677, 623 P.2d 527, rev. denied 229 Kan. 670 (1981), the appellate court found that it had continuing jurisdiction concerning alimony. That case involved court-ordered alimony rather than alimony agreed upon in the settlement agreement. Martin, 5 Kan. App. 2d at 676.
In Drummond v. Drummond, 209 Kan. 86, 87, 495 P.2d 994 (1972), the defendant-wife wanted to modify alimony payments. The court found that she had remarried and per the separation agreement, her alimony ceased. The defendant-wife wanted her alimony provisions to be considered a division of property and thereby hoped to prevent it from being eliminated upon her remarriage. The Drummond court found:
“A separation agreement is subject to the same rules of law applicable to other contracts and this rule is well stated in In re Estate of Hill, 162 Kan. 385, 176 P.2d 515, in Syl. ¶ 4:
‘The intention of the parties to and the meaning of a contract are to be deduced from the contract where its terms are plain and unambiguous, and when the language is clear and unequivocal the meaning must be determined by its contents alone, and words cannot be read into a contract which import an intent wholly unexpressed when the contract was executed. The court may not make an agreement for the parties which they did not make for themselves.’
“Regardless of the motives, we do not believe that á defendant, through her counsel, can present a separation agreement to the trial court, seek the trial court’s approval, ask the trial court to incorporate it in a decree, and later, by motion, request the trial court to find that this was not the agreement of the parties and it should be set aside or modified. We can readily see that a wife, by way of settlement, could agree to accept a higher alimony award in lieu of an award of specific property. The wife has this right. Having made that decision, she is bound by it and cannot avoid its consequences because of a subsequent decision to again seek the happiness of marriage. Furthermore, the defendant has accepted all the benefits she obtained by the agreement and now seeks to modify that same agreement to avoid its disadvantages. A party may not accept the benefits of a judgment and reject its burdens. [Citation omitted.]” 209 Kan. at 91-92.
The cases cited by William do not provide any support for his argument that the trial court had continuing jurisdiction to modify the alimony payments as set forth in the agreement. Because the parties entered into an agreement, the trial court no longer had continuing jurisdiction to modify the agreement except as stated in the agreement or by an agreement of the parties.
Finally, William argues that K.S.A. 60-260(b) gives the trial court jurisdiction to relieve him of the alimony judgment. William claims it was not equitable for the judgments of alimony to have prospective application.
K.S.A. 60-260(b) states in pertinent part:
“On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.” K.S.A. 60-260(b).
“A ruling on a motion for relief from a final judgment filed pursuant to K.S.A. 60-260(b) rests within the sound discretion of the trial court. In the absence of a showing of abuse of discretion, an appellate court will not reverse the trial court’s order.” In re Marriage of Zodrow, 240 Kan. 65, Syl. ¶ 2, 727 P.2d 435 (1986). “ ‘Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court/ ” In re Marriage of Wade, 20 Kan. App. 2d 159, 168, 884 P.2d 736 (1994), rev. denied 256 Kan. 995 (1995).
William cites to Richardson v. Richardson, 3 Kan. App. 2d 610, 612, 599 P.2d 320, rev. denied 226 Kan. 792 (1979), for the proposition that the court is not deprived of its authority to grant relief from a final judgment under K.S.A. 60-260(b) merely because the judgment is a divorce decree incorporating a property settlement. In that case, however, the land in question in the property settlement agreement was not mentioned during the settlement negotiations, nor was it referred to in the entry of judgment. 3 Kan. App. 2d at 612.
William argues that in order to be relieved from the prospective application of the order for spousal maintenance, the trial court should have considered the change in law or the facts.
Although the legislature did change the laws in 1982, reducing the court’s power to award alimony beyond 121 months, it still gave parties the authority to enter into separation agreements and agree to a longer duration of alimony subject to the constraints of the agreement being valid, just, and equitable. Allowing William to modify the alimony pursuant to K.S.A. 60-260(b)(5) would circumvent the agreement into which the parties entered. At the time the agreement was entered into, the present position of the parties was foreseeable. Thus, it does not appear that the trial court abused its discretion in not using K.S.A. 60-260(b)(5) to relieve William of his alimony payments.
• We affirm the trial court’s ruling as to the alimony payments due to Mary and as to any back child support due because of April.
We reverse the trial court’s ruling with respect to the back child support due because of Sandra’s minority and remand with instructions for the court to determine the amount of back child support payments necessary to meet the obligation of William to support Sandra, in excess of that already paid and limited by the amount previously ordered by the 1982 court, if any.
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|
Gernon, J.:
In this appeal of a quiet title action, Paul M. Lambeth, appellant, claims that a sheriff’s deed acquired after a tax foreclosure sale conveys a new and paramount title extinguishing all prior interests.
William J. Graham, appellee, contends he acquired the disputed land by adverse possession and, therefore, the district court did not have jurisdiction of the land and any sale for taxes was void.
The parties submitted the case on an agreed statement of facts pursuant to Supreme Court Rule 3.05 (1995 Kan. Ct. R. Annot. 21).
Graham purchased a tract of land from Rosenquist in 1964. Both Graham and Rosenquist agreed that the northern boundary of the tract purchased by Graham would be a barbed wire fence which encircled the tract, referred to as Tract B in the district court. The northern fence is essentially the same as when erected in 1964, except for a section damaged by a tornado. Graham has maintained and mowed all property south of the northern fence and within the other fence lines since 1964.
In 1968, Rosenquist sold the northern tract, Tract A, to Wayman. Wayman neglected to pay some taxes, and Daniel Lambeth purchased Tract A at a sheriff’s sale in 1984. Daniel Lambeth transferred the property to Paul Lambeth in 1986.
In 1994, Paul Lambeth ordered a survey of his tract based upon the description provided in the sheriff’s deed. The survey disclosed that the south property line, as described on the sheriff’s deed, lay approximately 10 feet south of the boundary as designated by the barbed wire fence.
The parties agree that Graham has always paid taxes on Tract B and that Lambeth has never maintained the disputed 10-foot strip. The strip contains approximately 2,090 square feet, or about Vzoth of an acre.
The trial court found that Graham had been in open, exclusive, and continuous possession of the disputed property for over 15 years under a good faith belief of ownership and that his title was superior to any grant contained in a subsequent sheriff’s deed. We agree and affirm.
Lambeth attempts to show that a sheriff’s deed becomes a valid conveyance in the claim of title and cites several cases he maintains supports his position. See Womer v. Aldridge, 155 Kan. 446, 449, 125 P.2d 392 (1942); Shawnee County Comm’rs v. Abbott, 155 Kan. 154, 159, 123 P.2d 318 (1942); Van Doren v. Etchen, 112 Kan. 380, 381, 211 Pac. 144 (1922).
The cases cited by Lambeth do show that a sheriff’s deed is a valid conveyance, but none addresses a factual situation in which another claim of ownership by adverse possession had ripened into a property interest long before a sheriff’s deed was issued, delivered, or filed of record.
Lambeth next contends that under K.S.A. 79-2804, the filing of a sheriff’s deed conveys a clear title and, therefore, he is the owner of the 10-foot strip of land. Graham replies that the sheriff’s deed did not and could not convey the 10-foot strip of land because it was no longer a part of the parcel conveyed. We disagree with Lambeth.
“One who buys at a tax sale buys only the interest of the owner.” Gauger v. State, 249 Kan. 86, 93, 815 P.2d 501 (1991).
“A purchaser at a tax foreclosure sale under [K.S.A.] 79-2804 is not strictly speaking an innocent purchaser nor a purchaser in good faith, but one to whom the rule of caveat emptor properly applies.” Isenhart v. Powers, 135 Kan. 111, Syl. ¶ 3, 9 P.2d 988 (1932).
There is no Kansas case law on point. Other states have decided that a deed subsequent to a tax foreclosure sale can only convey what the prior owner had. Therefore, if adverse possession created an interest prior to judgment, it was not conveyed through the new title. See Mount v. Curran, 631 P.2d 496, 498 (Alaska 1981) (city tax deed conveyed all of prior owner s interest except a portion already obtained by another party by adverse possession); Palm Orange Groves v. Yelvington, 41 So. 2d 883, 885 (Fla. 1949); De Rosa v. Spaziani, 142 N.Y.S.2d 839, 844 (N.Y. Sup. Ct. 1955) (foreclosure of tax lien against record owner did not cut off title by adverse possession to strip of land occupied by neighbor).
There are states which hold that a tax foreclosure proceeding is an in rem action and erases all former interests in the land. Harrison v. Everett, 135 Colo. 55, 60, 308 P.2d 216 (1957); Nedderman v. City of Des Moines, 221 Iowa 1352, 1356, 268 N.W. 36 (1936); Leciejewski v. Sedlak, 110 Wis. 2d 337, 347, 329 N.W.2d 233 (Ct. App. 1982), aff’d 116 Wis. 2d 629, 342 N.W.2d 734 (1984); In Matter of Foreclosure of Tax Liens, 106 Wis. 2d 244, 251, 316 N.W.2d 362 (1982) (quoting Jensen L.S. Co. v. Custer Co. et al., 113 Mont. 285, 295-96, 124 P.2d 1013 [1942]).
The language of the Kansas statute, while similar to the Wisconsin statute, falls short of cutting off all prior interests.
Kansas case law also suggests that the action may not foreclose all prior interests in the land, since the purchaser only buys the interest of the owner. See Gauger, 249 Kan. at 93; Shawnee County Comm’rs, 155 Kan. 154, Syl. ¶ 1; Liebheit v. Enright, 77 Kan. 321, 322, 94 Pac. 203 (1908).
Lambeth next argues that if Graham claimed ownership of the strip, he should have paid the property taxes and protected his interest at the tax sale, of which publication notice was sufficient. Graham contends that under his good faith belief of ownership, he believed he was paying taxes on the disputed strip and, regardless, did not receive notice of the tax sale.
The notice argument must fail here by the logic of the facts presented. When one holds a boundary strip under a good faith belief in ownership, neither the adverse possessor nor the county foreclosing the tax lien has knowledge that the adverse possessor is an interested party. Therefore, the adverse possessor is not a named party and is not served personally.
The next question which arises is: What obligation does the adverse possessor have in relation to the payment of taxes?
The general rule is that an adverse possessor is not required to pay taxes to succeed in a claim of ownership. See Renensland v. Ellenberger, 1 Kan. App. 2d 659, 664, 574 P.2d 217 (1977). If the adverse possessor is not required to show payment of taxes to claim title and claims possession under a good faith belief, it would appear contradictory to be able to defeat the interest through tax foreclosure.
We conclude that Lambeth had actual notice of Graham’s possession up to the fence line at the time of the tax foreclosure action. Further, the deed from the sheriff, on its face, contains no wording indicating it to be a warranty deed. Graham had been the adverse possessor for 20 years before the sheriff’s deed was issued. What Lambeth took at the sheriff’s sale was the tract in the sheriff’s deed, less the disputed strip.
We further conclude that Lambeth’s argument concerning the county “bidding-in” Tract A for delinquent taxes in 1972 and, therefore, interrupting the time frame for Graham’s claim of adverse possession is not supported by the record or by the agreed statement of facts.
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|
Rulon, J.:
The Kansas Department of Social and Rehabilitation Services (SRS) appeals an order of the district court terminating the parental rights of the putative father of J.A.C. Specifically, SRS argues that the court did not have the authority to terminate the putative father s rights where there has been no petition for adoption, where the child is not being relinquished to an agency, and where no other person or agency is to assume the parental rights and responsibilities. We reverse and remand with directions.
The facts of this case are essentially undisputed.
In April 1995, the natural mother of J.A.C. filed a petition to terminate the parental rights of the putative father of J.A.C. The petition alleged that the putative father denied paternity and had never provided financial assistance to the mother or child. The petition further alleged that the putative father had executed a relinquishment of any parental rights to J.A.C.
At the time of the hearing on the petition to terminate, it was discovered that the putative father had not signed the relinquishment. After hearing argument from counsel, the district court granted the request for termination. The journal entry was filed April 25, 1995. On May 2, 1995, the putative father filed a document with the district court denying paternity and relinquishing any parental rights to J.A.C.
This is an especially perplexing problem because the district court was apparently asked to terminate the parental rights of a putative father but never heard evidence or made a finding of paternity. Further, the court was not terminating the parental rights of an unknown father because the mother always claimed to know that the putative father was in fact the natural father of J.A.C.
The mother argues that the putative father s rights were properly terminated under either K.S.A. 59-2136(e), (f), (g), or (h). Interestingly, however, she concedes that there was no valid relinquishment of parental rights under Chapter 59, nor was there a termination of parental rights of a child in need of care under Chapter 38 of the Kansas Statutes Annotated.
Interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). On questions of law, our review is unlimited. See Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
“[Tjhe termination of parental rights is an extremely serious matter and may only be accomplished in a manner which assures maximum protection to all of the rights of the natural parents and of the child involved.” In re A.W., 241 Kan. 810, 814, 740 P.2d 82 (1987). Our Supreme Court has recognized that there are three statutory methods for termination of parental rights: (1) adoption; (2) termination of parental rights; and (3) relinquishment of rights. State ex rel. Secretary of SRS v. Clear, 248 Kan. 109, 116, 804 P.2d 961 (1991). The mother believes that K.S.A. 59-2136 creates a fourth method.
K.S.A. 59-2111 through K.S.A. 59-2143 make up the Kansas Adoption and Relinquishment Act. K.S.A. 59-2136 reads in part:
“(a) The provisions of this section shall apply where a relinquishment or consent to an adoption has not been obtained from a parent and K.S.A. 59-2124 and 59-2129, and amendments thereto, state that the necessity of a parent’s relinquishment or consent can be determined under this section.
“(d) In a stepparent adoption, if a mother consents to the adoption of a child who has a presumed father under subsection (a)(1), (2) or (3) of K.S.A. 38-1114 and amendments thereto, or who has a father as to whom the child is a legitimate child under prior law of this state or under the law of another jurisdiction, the consent of such father must be given to the adoption unless such father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption or is incapable of giving such consent. In determining whether a father’s consent is required under this subsection, the court may disregard incidental visitations, contacts, communications or contributions. In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption, there shall be a rebuttable presumption that if the father, after having knowledge of the child’s birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent.
“(e) Except as provided in subsection (d), if a mother desires to relinquish or consents to the adoption of such mother’s child, a petition shall be filed in the district court to terminate the parental rights of the father, unless the father’s relationship to the child has been previously terminated or determined not to exist by a court. The petition may be filed by the mother, the petitioner for adoption, the person or agency having custody of the child or the agency to which the child has been or is to be relinquished. Where appropriate, the request to terminate parental rights may be contained in a petition for adoption. If the request to terminate parental rights is not filed in connection with an adoption proceeding, venue shall be in the county in which the child, the mother or the presumed or alleged father resides or is found. In an effort to identify the father, the court shall determine by deposition, affidavit or hearing, the following:
(1) Whether there is a presumed father under K.S.A. 38-1114 and amendments thereto;
(2) whether there is a father whose relationship to the child has been determined by a court;
(3) whether there is a father as to whom the child is a legitimate child under prior law of this state or under the law of another jurisdiction;
(4) whether the mother was [cohabiting] with a man at the time of conception or birth of the child;
(5) whether the mother has received support payments or promises of support with respect to the child or in connection with such mother’s pregnancy; and
(6) whether any man has formally or informally acknowledged or declared such man’s possible paternity of the child. If the father is identified to the satisfaction of the court, or if more than one man is identified as a possible father, each shall be given notice of the proceeding in accordance with subsection (f).
“(f) Notice of the proceeding shall be given to every person identified as the father or a possible father by personal service, certified mail return receipt requested or in any other manner the court may direct. Proof of notice shall be filed with tire court before the petition or request is heard.
“(g) If, after the inquiry, the court is unable to identify the father or any possible father and no person has appeared claiming to be fire father and claiming custodial rights, the court shall enter an order terminating the unknown father’s parental rights with reference to the child without regard to subsection (h). If any person identified as the father or possible father of the child fails to appear or, if appearing, fails to claim custodial rights, such person’s parental rights with reference to the child shall be terminated without regard to subsection (h).
“(h) When a father or alleged father appears and asserts parental rights, the court shall determine parentage, if necessary pursuant to the Kansas parentage act. If a father desires but is financially unable to employ an attorney, the court shall appoint an attorney for the father. Thereafter, the court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following:
(1) The father abandoned or neglected the child after having knowledge of the child’s birth;
(2) the father is unfit as a parent or incapable of giving consent;
(3) the father has made no reasonable efforts to support or communicate with the child after having knowledge of the child’s birth;
(4) the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth;
(5) the father abandoned the mother after having knowledge of the pregnancy;
(6) the birth of the child was the result of rape of the mother, or
(7) the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the fihng of the petition.
“In malting a finding under this subsection, the court may disregard incidental visitations, contacts, communications or contributions. In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the fifing of the petition for adoption, there shall be a rebuttable presumption that if the father, after having knowledge of the child’s birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the fifing of the petition for adoption, then such father has failed or refused to assume the duties of a parent.”
The mother argues that K.S.A. 59-2136 applies where a valid rehnquishment has not been obtained from a parent. Therefore, because a valid relinquishment was not obtained from the putative father, K.S.A. 59-2136(g) provides the procedure for terminating his parental rights. The flaw in the mother’s argument is that she leaves out critical portions of the statute. The plain wording of the statute states that the provisions of K.S.A. 59-2136 apply when a relinquishment or consent to an adoption has not been obtained from a parent and when K.S.A. 59-2124 and K.S.A. 59-2129 provide that the procedures outlined in K.S.A. 59-2136 can be used in lieu of such consent or relinquishment. K.S.A. 59-2136(a).
K.S.A. 59-2124 provides that a parent may relinquish a child to an agency if the agency accepts the relinquishment in writing. “Any parent may voluntarily surrender a child to SRS, and if SRS accepts the child in writing, the department stands in loco parentis to the child and possesses all the rights of a natural parent, including the power to place the child for adoption.” 248 Kan. at 116. Here, neither the mother nor putative father is relinquishing J.A.C. to SRS or any other agency. Therefore, K.S.A. 59-2124 is not applicable.
K.S.A. 59-2129 establishes conditions under which consent is given for an adoption. Again, there is no adoption in this case, and, therefore, K.S.A. 59-2136 is not applicable.
Statutes pertaining to adoption, relinquishment, or termination of parental rights are strictly construed as they all affect a parent’s liberty interest in the custody and control of his or her children. In re A.W., 241 Kan. at 814-15. “ ‘It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.’ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993).
K.S.A. 59-2136(e) states that “if a mother desires to relinquish or consents to the adoption of such mother’s child, a petition shall be filed in the district court to terminate the parental rights of the father.” Obviously, the mother is not relinquishing her rights or consenting to an adoption, and, therefore, this subsection has no application.
K.S.A. 59-2136(f) merely directs who shall receive notice and how service is to be accomplished. Subsection (g) provides that if the court is unable to identify the father or any possible father who claims custodial rights, or if there is a person identified as the father who similarly fails to claim custodial rights, that father’s parental rights will be terminated. However, under the plain language of subsection (a), this is only pertinent when there is a relinquishment to an agency or a consent to an adoption. Finally, subsection (h) sets out the procedure and findings necessary to terminate a father’s rights where the father does appear and claims custody.
“When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
“ ‘In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law/ ” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992) (quotingKansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 [1975]).
Under the plain wording of the Kansas statutes, the district court did not have the authority under Chapter 59 to terminate the pu tative father’s parental rights except when there is a valid relinquishment to an agency that accepts the relinquishment or when an adoption is to be effected.
According to the mother, such an interpretation of the statutes is inequitable as, in practice, it means that an unwed single parent cannot terminate the rights of an absent, nonsupporting parent to become sole custodian of the child, but a complete stranger can adopt a child and become its sole parent. She makes a similar argument regarding agencies, such as SRS, claiming that if SRS or another agency can become the sole parent for a child through a termination proceeding, there is no reason a single parent should not be able to accomplish the same result.
While there is a certain logic in her argument, there is no provision in the Kansas statutes for what is essentially a declaratory judgment action by one parent against a putative parent to foreclose that person’s right to come forward and claim parentage at some later date.
Reversed and remanded with directions that the termination order be vacated. | [
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Rulon, J.:
This is an appeal by two juveniles, J.T.M. and M.N.M., respondents, who argue the district court did not have jurisdiction to adjudicate them as juvenile offenders on charges of aggravated battery because the charging documents were defective. Respondents specifically claim the court erred in allowing the State to amend the complaints to cure the defect, denying their request for discovery, denying their request for a juiy trial, and permitting a co-respondent to testify. We affirm.
The facts of this case are essentially undisputed and are as follows:
Respondents were each charged as juveniles with one count of aggravated battery, K.S.A. 21-3414, level 7 person felonies. The cases were consolidated for purposes of trial.
Prior to trial, respondents filed motions to have the charges dismissed because the charging documents were fatally defective. According to the motions, the complaints alleged respondents committed an aggravated battery with a deadly weapon, to wit, mace or fists. The trial court indicated the motion would be granted if requested but that the prosecution would simply refile the charges. Respondents’ counsel then informed the court the father of respondents did not want the case dismissed and agreed to permit the State to amend the complaint.
Eventually, counsel for respondents filed discovery motions requesting all medical records from any health care provider who treated the victim for injuries alleged to have resulted from respondents’ actions. The motions also requested the details of any agreements for leniency given by the prosecution to any witness in the case. Respondents additionally filed motions requesting a jury trial.
The trial court directed the district attorney to provide respondents with all of the State’s files for discovery purposes and denied the request for a jury trial. Respondents were subsequently found to be juvenile offenders and placed on probation in the custody of their parents for approximately 1 year.
DEFECTIVE COMPLAINT
Respondents’ first argument is that the trial court erred in allowing the State to amend the complaint. Specifically, respondents argue that because the complaint was fatally defective, the court never had jurisdiction and consequently had no authority to allow the complaint to be amended.
Respondents primarily rely on State v. Wilson, 240 Kan. 606, 731 P.2d 306 (1987), as support for this issue. In Wilson, the court stated that “[a]n information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective and a conviction of that offense must be reversed.” 240 Kan. at 607. The court further said that an information that does not charge any offense cannot be amended during trial over the defense’s objection. 240 Kan. at 608.
In Wilson, the defendant was charged with first-degree murder; however, the information did not charge that the killing was done maliciously, deliberately, and with premeditation. Instead, the information only charged that the defendant did “unlawfully, wilfully kill and murder” the victim by stabbing her in the chest with a knife and inflicting mortal wounds. As such, because the information omitted one or more of the essential elements of the crime charged, the court concluded that the information was jurisdictionally and fatally defective. 240 Kan. at 607. Similarly, the language in the information was insufficient to allege second-degree murder, voluntary manslaughter, or involuntary manslaughter. 240 Kan. at 607-08. Therefore, the case went to trial on an information that did not charge any degree of criminal homicide under the laws of this state. 240 Kan. at 608.
The State argued the information was amended during trial to charge first-degree murder. The Wilson court noted that at one point the prosecutor stated a desire to amend the information, but made no oral or written motion on the record. The State never filed an amended information; the prosecutor did not state on the record the wording in the information the State wished to add or delete; and the prosecutor did not seek to amend by interlineation. The Wilson court concluded the information had never been amended. 240 Kan. at 608.
The difference between this case and Wilson is that here there was no conviction resulting from a defective information. Here, the record shows that upon respondents’ motion to dismiss, the prosecution filed an amended complaint and charged respondents with a level 8 aggravated battery versus the level 7 aggravated battery each was originally charged with committing. The amended complaints were filed prior to trial and after respondents had withdrawn their request for a dismissal.
K.S.A. 38-1622 sets out the requirements for a complaint alleging an individual is a juvenile offender. The statute requires that the complaint contain, plainly and concisely, the essential facts constituting the offense charged and, if the statement is drawn in the language of the statute, ordinance, or resolution alleged to have been violated, such shall be considered sufficient. For each count charged, the information is to contain the official or customary citation of the statute, ordinance, or resolution which is alleged to have been violated, but error in the citation or its omission shall not be grounds for dismissal of the complaint or for reversal of an adjudication if such error did not prejudice the respondent. K.S.A. 38-1622(a)(l)(D) and (E).
Neither party cites, and our own research fails to find, any Kansas authority dealing with an allegation that a juvenile complaint is fatally defective. There is, however, an abundance of case law concerning defective criminal complaints or informations under K.S.A. 22-3201.
K.S.A. 22-3201 provides that the information, complaint, or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which is to be drawn in the language of the statute. The complaint, information, or indictment shall state, for each count, the customary citation of the statute, rule, and regulation, or other provision of the law the defendant is alleged to have violated. “Error in the citation or its omission shall [not be] ground for dismissal of the complaint, information or indictment or for reversal of a conviction if the error or omission did not prejudice the defendant.” K.S.A. 22-3201(b).
While juvenile proceedings are considered civil in nature and totally separate from any criminal implications, State v. Muham mad, 237 Kan. 850, Syl. ¶ 2, 703 P.2d 835 (1985), the similarity in language and purpose of K.S.A. 38-1622 and K.S.A. 22-3201 would indicate such statutes should be considered in pari materia. See State v. Starks, 20 Kan. App. 2d 179, 182, 885 P.2d 387 (1994).
In State v. Woods, 250 Kan. 109, 825 P.2d 514, cert. denied 506 U.S. 850 (1992), the defendant argued the trial court erred in allowing the prosecution to amend the complaint and add new charges prior to trial. The defendant claimed K.S.A. 22-3201(4) clearly allowed the prosecution to amend a complaint anytime before verdict only if no additional or different crimes are charged and if the substantial rights of the defendant are not prejudiced. 250 Kan. at 111. Our Supreme Court said: “Prior to trial, the trial court has discretion to allow an amendment to a complaint, including the charging of a different crime, provided the substantial rights of the defendant are not prejudiced.” 250 Kan. 109, Syl. ¶ 1.
“Although the statutoiy language has changed since the inception over a century ago of statutory authorization to amend a complaint, this court consistently has given the State considerable latitude in amending a complaint before trial. A liberal interpretation does not contradict the express language of the statute: K.S.A. 22-3201(4) does not forbid a court from differentiating between allowing the State to amend complaints before trial and during trial.
“We see no reason to depart from the principle that the State has discretion to amend a complaint before trial and that error will be found only if the defendant’s substantial rights are prejudiced.” 250 Kan. at 114-15.
We believe the trial court here was vested with discretion to allow the prosecution to amend the information or complaint as long as the substantial rights of respondents were not prejudiced.
The law in Kansas is well settled that
“(¡Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly over-passes those bounds.” State v. Lumbrera, 257 Kan. 144, 148, 891 P.2d 1096 (1995).
Respondents make no argument as to how the district court abused its discretion, or how their substantial rights were prejudiced. Their sole argument is that the court lacked jurisdiction. Such argument is clearly without merit, following Woods.
MEDICAL RECORDS
Respondents next argue the trial court erred by not allowing them to discover all of the victim’s medical records so respondents’ counsel could adequately cross-examine the victim on the issue of restitution.
The State argues such information was privileged and the State never had any of the requested information in its files and was not required to order the victim to provide such information to respondents. The record shows that upon respondents’ request for discovery, the court ordered the prosecution to turn over any information in its files. There is nothing in the record to show that respondents objected to the testimony of the victim because they did not have all the medical documents. Respondents did object to the testimony of the victim on the basis they had not been provided information concerning any favorable treatment the victim was receiving from the prosecution.
K.S.A. 38-1653 provides that in all adjudicatory hearings, the rules of evidence of the Code of Civil Procedure shall apply. Respondents do not cite any part of the code or case law which indicates the prosecution must obtain the medical records of a victim to allow a respondent to cross-examine the victim in a juvenile case.
An analogous case arising under the criminal code is State v. Dressel, 241 Kan. 426, 738 P.2d 830, cert. denied 484 U.S. 968 (1987). In Dressel, the defendant sought to discover certain evidence which was in the possession of the victim, the Cargill Corporation. The bulk of the investigation into the charges against the defendants was performed by Cargill and not by the State. Most of the evidence was in Cargill’s possession and not in the possession of the State. Also, Cargill, under K.S.A. 19-717, hired a special counsel to assist in the prosecution of the case. When the defendants tried to compel discovery of certain items held by Cargill, the trial court consistently denied the motions because the court did not have jurisdiction to order Cargill, as a nonparty, to participate in the discovery. The trial court ruled that while it could not order a nonparty to produce documents under K.S.A. 22-3212, the defendants could subpoena the records and the court would enforce the subpoena.
Our Supreme Court, in reversing this court, held that an attorney hired by the prosecuting witness must participate in discovery under K.S.A. 22-3212 by disclosing evidence requested by the defense which is in the custody or control of the attorney. Additionally, the attorney must disclose evidence which would tend to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. However, the prosecuting witness is not a party to the action, and the witness’ records are not in the possession of the State; therefore, a trial court has no jurisdiction to compel discovery from such a witness under K.S.A. 22-3212. 241 Kan. at 436-37.
Applying the Dressel rationale here, M.S., the victim/prosecuting witness, was not a party to the action, and consequently the trial court has no jurisdiction to compel discovery other than as provided in the Code of Civil Procedure. If respondents wished to discover documents in the custody of M.S., they should have issued a subpoena duces tecum under K.S.A. 60-245(b). As there is no allegation that such documents were ever in the custody or control of the prosecution, the trial court had no jurisdiction to issue an order compelling the State to obtain documents from M.S. Additionally, there is no indication the respondents tried to subpoena the documents. As such, this issue is without merit.
CO-RESPONDENT’S TESTIMONY
Respondents next argue the trial court should not have allowed J.L., a co-respondent, to testify because the State had failed to reveal any favorable treatment afforded J.L. in exchange for his testimony. Respondents characterize this as a Brady issue.
Under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the prosecution must disclose exculpatoiy evidence that is material to the guilt or to the punishment of a defendant.- Discovery should be the norm, and an arbitrary refusal to require the prosecution to disclose material information, without reason, is an abuse of discretion. State v. Humphrey, 217 Kan. 352, 360, 537 P.2d 155 (1975). Evidence impeaching the credibility of a government witness falls within the Brady rule when the reliability of the witness may be determinative of the guilt or innocence of the defendant. Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). Clearly, the prosecution is required to turn over evidence to the defense that a witness has received favorable treatment in exchange for his or her testimony. Such evidence may be useful to the defense to impeach the State’s witness by showing bias or interest. United States v. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). However, failure to disclose such information warrants a reversal only if it is material. The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. “A reasonable probability is a probability sufficient to undermine the confidence of the outcome.” 473 U.S. at 678.
Here, respondents filed a motion asking for information regarding any and all agreements entered into by the prosecution with any witness, including promises to forbear prosecution, parole, probation, diversion, or immunity. At trial, respondents sought to exclude the testimony of J.L. because the prosecution had failed to turn over any information of any deals or leniency promised or given to J.L. in exchange for his testimony. The prosecution responded by proffering that the witness had not received any favorable treatment. J.L. testified that he had never spoken to the prosecution about any favorable treatment in exchange for his testimony. The trial court found that J.L. did not receive favorable treatment in exchange for his testimony.
Our concern with respondents’ argument is that during the bench trial, the prosecutor stated that J.L. had entered a plea of guilty to attempted aggravated battery for his participation in the same beating that led to the prosecution of respondents for aggravated battery. The court was obviously well aware of the fact that even though J.L. was an admitted participant in the beating, as he admitted to repeatedly kicking the victim after the victim was on the ground, he was only charged with attempted aggravated battery. The court, in denying the motion to exclude, stated the sentence would have been 1 year probation for either attempted or aggravated battery. Therefore, we conclude the facts do not meet the materiality test stated in Bagley. There was not a reasonable probability that had the information been disclosed prior to trial, the result of the proceeding would have been any different. In fact, the charges pending against J.L. were readily available to respondents, as such were a matter of public record. See K.S.A. 38-1607. Consequently, the court did not err in denying respondents’ motion to exclude J.L.’s testimony.
REQUEST FOR A JURY TRIAL
Respondents’ final argument is that the trial court erred in denying their request for a jury trial. Respondents argue that because there is no right to a jury trial in a juvenile proceeding, the trial court does not have to consider any lesser included offenses. Therefore, their argument implies the court should have granted their request for a jury trial so the trier of fact could consider any lesser included offenses. Respondents cite State v. Johnson, 258 Kan. 61, 899 P.2d 1050 (1995), to support their proposition. Additionally, respondents argue the potential ramification of a juvenile adjudication under the Kansas Sentencing Guidelines Act dictates that juveniles have a right to a jury trial.
The first problem with respondents’ argument is that Johnson does not stand for the point of law as stated by respondents. Johnson says that when the trial is to the court, the court is presumed to know the law. If the evidence would support the giving of a lesser included instruction had the case been tried to a jury, the trial court is presumed to have followed the same course as if such an instruction had been given. 258 Kan. at 65. However, where the trial court, in a bench trial, finds that the defendant is guilty of the greater crime beyond a reasonable doubt, it is not necessary that the court consider any lesser included offense. 258 Kan. 61, Syl. ¶ 2.
Second, our Supreme Court in Findlay v. State, 235 Kan. 462, Syl. ¶ 2, 681 P.2d 20 (1984), held the trial court’s decision to deny or grant a jury trial in a juvenile proceeding is not subject to appellate review. Absent some indication by the Supreme Court that it is departing from its previous position; this court is duty bound to follow the law as handed down from the Supreme Court. State v. Allen, 21 Kan. App. 2d 811, 816, 908 P.2d 1324 (1995), rev. denied 259 Kan. 928 (1996).
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|
The opinion of the court was delivered by
Buroh, J.:
The defendants were.found guilty of violating the statute relating to trusts, and appeal.
A separate information, containing five counts, was filed against each defendant. The counts charged, in order, violations of the five subdivisions of section 6409 of the General Statutes of 1915. A jury was waived, and the cases were tried together by the court. The defendants were found guilty on counts one, three,, and five, and were acquitted on counts two and four. The appeals were heard together in this court, are alike in all respects, and may be disposed of in one opinion.
The state’s contention was that the ice companies of Wichita, manufacturing and selling substantially all the ice supplied to the city, committed the breaches of the statute charged in the information, by a combination of capital and acts, and by obligations and agreements centering in and about a single system for the delivery of ice. The defense was that the system did not possess the obnoxious features attributed to it by the state; that the single system of delivery is the only correct, economical and efficient system for city delivery of ice; that a statute which would prohibit such a system would be inimical to the public welfare; that the antitrust act ought not to be interpreted in a manner which would accomplish such a result; and that, if the principle of interpretation stated by Chief Justice White in the case of Standard Oil Co. v. United States, 221 U. S. 1, be applied to the act, the defendants were not guilty.
The court did not make findings of fact covering the issues, but filed a written memorandum of decision, which contained a discussion of portions of the evidence and the court’s conclusions. Charles Phillips, managing officer of the Arctic Ice & Refrigerating Company, which participated in the delivery system but was not prosecuted, testified in detail to facts showing flagrant violation of the statute. The managers of the defendants contradicted him, and gave a different exposition of the delivery system. The court spoke of the conflict in the evidence, and said the facts and circumstances which were undisputed must control the decision. The delivery scheme which .was the subject of the prosecution included what was called the City Ice Delivery Company. What this name stood for, and the precise relation to the defendants of whatever the name designated, were sharply contested facts. The court said the controversy need not be determined. Leaving these subjects at one side, the court adverted to facts which it deemed sufficient to sustain the charges contained in counts one, three, and five. In the memorandum, however, the court referred to other facts besides those specifically mentioned, which indicated violation of the statute. The final conclusions were stated as follows:
“The defendants and each of them will be and are found guilty of the violation of the law as charged in the first, third and fifth counts of the amended information.
“The court has carefully considered the authorities submitted by counsel in the case; and after considering the evidence in the case, can reach no other conclusion than that there has been a violation of the law as charged in the first, third and fifth counts of the amended information in the respective cases.”
The judgment contained a general finding of guilty on counts one, three, and five.
The skeleton of the delivery system was this: The defendants turned over to one Severance their equipment for the delivery of ice. Severance, operating as the City Ice Delivery Company, took ice from the defendants and marketed it. Out of the receipts from sales to customers he paid all the expenses of delivery. Included in the expense account was a rent charge for a portion of the équipment belonging to the defendants. The defendants claimed they sold the product of their plants to the City Ice Delivery Company. Phillips said Severance was a hired man, drawing $250 per month. On the books of the dummy company the defendants were credited with ice they delivered, at prices which they fixed. The ice was sold at prices which the defendants fixed, and the defendants were to be paid the first part of the week following the week of delivery. Phillips testified, and the court said the evidence showed, the profits which would have accrued to the City Ice Delivery Company, if it had been a genuine purchaser, were absorbed by the defendants and their coadjutors, by simply raising the price of ice to Severance. Incidentally it may be remarked that an audit of the books of the City Ice Delivery Company, which is one of the “undisputed” facts in the case, disclosed that Severance’s withdrawals amounted to $250 per month. If the City Ice Delivery Company was not what the defendants claimed it to be, and was even substantially what Phillips claimed it to be, the fundamental premise of the defense was destroyed, and there was abundant evidence to sustain the general finding of guilt. What can this court do, with the record in this condition?
This court is not bound by the district court’s memorandum, which does not purport to state findings of all the facts pertaining to the issues, or for that matter, findings of fact at all. Probably the court did not express its meaning accurately when it said undisputed facts and circumstances must control the decision. It probably meant that undisputed facts and circumstances were sufficient to furnish a sound basis for the decision. However, the defendants did not complain, and the state was content with the general finding. This court cannot determine the credibility of witnesses. It cannot weigh disputed testimony. But all the evidence is here, and the judgment may not be reversed for want of evidence, when the record contains abundant evidence to sustain it. It is useless to discuss the force of the facts picked out for comment by the district court, because if this court should agree with the defendants, the state is entitled to say the record contains ample proof of unlawful intention fully accomplished. It is useless to interpret the statute, because, under the state’s theory of the evidence, the defendants are guilty under their own theory of the law. Under these circumstances, the court holds the general finding of guilty cannot be overthrown, and' the defendants have not shown error in the judgment.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Appellant was tried to a jury the violation of section reads as follows;
“Any person who, having once been duly convicted of violations of the prohibitory law and who shall thereafter, directly or indirectly, violate the provisions of the prohibitory liquor law, shall be considered a persistent violator of the prohibitory law and shall be deemed guilty of a felony, . . .”
Appellant contends that there was not sufficient evidence of the prior conviction necessary in such case, and hence that there was not sufficient evidence to sustain the verdict. The state claims that the prior conviction was before R. C. Manley, a justice of the peace at Lawrence. Manley was called as a witness and testified that he was a justice of the peace in September, 1921; that the defendant was charged before him with having intoxicating liquors unlawfully in his possession, and that on September 6, 1921, defendant, with his attorney, appeared before him and withdrew a plea of not guilty previously made to such complaint, and entered a plea of guilty, and was sentenced to pay a fine, of $100 and costs, and to serve thirty days in jail. All of this testimony was given without objection, so far as the abstract shows. The state then offered in evidence the record of the justice of the peace showing such plea and sentence. That was objected to, and in the argument over the objection, the transcript does not show that the objection was ever passed upon or the exhibit received in evidence. In view of the fact that the witness was permitted to testify to the proceedings without objection, it cannot be said there was no evidence on that question, even though the record itself was not received in evidence.
Appellant contends that there was not a sufficient showing that Manley was a justice of the peace at that time, that is, that his certificate of election and his oath and bond of qualifications' were not shown. This was not necessary. He testified he was justice of the peace at that time, and, as a matter of fact, if he were acting as justice of the peace, performing the duties of the office, he would be regarded in a collateral attack as a de facto officer, without regard to the regularity of the instrument showing his election and qualification.
The appellant took the witness stand in his own behalf and testified, among other things, that he had entered a plea of guilty in the justice court, before Mr. Manley, to having liquor in his possession. The court instructed the jury:
“You are advised that if you find it to be a fact beyond a reasonable doubt that the defendant was convicted or plead guilty to a violation of the intoxicating liquor statute of this state before a justice of the peace, in the city of Lawrence, such conviction or plea of guilty constitutes the previous conviction required by the law first quoted to you, before a conviction under that case can be had. The defendant admits, however, that he entered a plea of guilty to a violation of the intoxicating liquor law, so you will not be bothered with having to determine with reference to a former ’conviction.”
Appellant complains of the last sentence in this instruction as being an invasion of the court of the province of the jury to pass upon the evidence. Where one party to a lawsuit contends a certain fact is necessary to be established, and offers evidence on the question, and the defendant himself, on the witness stand, admits or testifies to the fact charged, it is not error for the court to say in his instructions that the fact is admitted and is no longer in controversy. In fact, it would appear that such an instruction-would tend to eliminate from the consideration of the jury un-controverted facts and enable them better-to give their attention to facts over which there is some dispute.
It is one of the contentions of the appellant in this case that the liquid he had in his possession at the time of his arrest was not intoxicating liquor, as charged by the state, but was a preparation purchased for use for bathing purposes. The liquid was analyzed by Professor Werner, a chemist at the State University, and hr-testified that he found the liquid contained 37.05 per cent of ethyl alcohol, which is the kind of alcohol used as a beverage; that it contained no denatured alcohol or wood alcohol, nor any perfume, or extract of witch hazel, or anything that had an odor; that he tested it for sweet oil, the pyridin and acids and wood alcohol; that he did not test it for those properties put in a preparation commonly called bathing alcohol. Later in the day he was recalled as a witness, and stated that no ingredients were present in the liquid which would make it a bathing solution, and that he had made no further analysis since his prior testimony. His testimony differed from that given in the morning as to whether or not the liquid was a bathing solution. Appellant contends that because of this variance in the testimony of this witness, he ought not to be sent to the penitentiary on such testimony. Conceding for the purpose of the argument that the variance is as pronounced as claimed by appellant, and that it is subject to just criticism for that reason, still it was all before the jury and the trial court, together with the other evidence offered in the case, and it formed a sufficient basis for the jury to find that the liquid contained a large per cent of alcohol of the kind used as a beverage.
Finding no error in the case, the decision of the court below is affirmed.
HopKins, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Addison Conner his title to a tract of land in which he asked that the defend Agnes Cole, and others named as defendants be barred r up or granting any interest in the land. The plaintiff ’ defendant appeals.
The only defendant served was Mary Agnes r the only one brought before the court. The ap" the pleadings, findings of fact and of law, and The land, 160 acres, was owned by Mrs. T’ intestate in 1901, leaving as her sole heir Conner, and her two children, the p1 tenner, and the defendant Mary Agnes Cole. W ^ed, Addison Conner and his wife were living upon the land, while the defendant was living in another state. After the death of his wife Thomas H. Conner lived a part of the time with plaintiff on the land in question, and part of the time with the defendant. On December 17, 1902, Thomas H. Conner executed a waranty deed purporting to convey his undivided half interest and title in the land to the plaintiff, and on April 17,1903, he took the deed to the register of deeds and caused it to be recorded, but neither the plaintiff nor the defendant knew of the execution and recording of the instrument until 1907. It contained the ordinary recitals of a warranty deed except that there was in it this provision:
“This deed is executed in favor of and to my son, Addison Conner, with express agreement as hereinafter contained, that should Addison Conner die without any children before his wife, Bertha Conner dies, then the undivided one-half of the above-described property reverts to Thomas H. Conner, and in case the said Thomas H. Conner dies before the said Addison Conner dies, then the undivided one-half of the above-described land reverts to the heirs of the said Thomas H. Conner.”
On October 7, 1907, Addison Conner and his wife joined in executing and delivering to Thomas H. Conner a warranty deed of the land in which they covenanted that they were the lawful owners of the land granted and were seized of a good and indefeasible estate of inheritance therein free and clear of all incumbrances. On October 14,1907, Thomas H. Conner in turn executed a warranty deed of the same land to Addison Conner, which reserved to himself the use and occupancy of the land with the rents and profits of the same during his lifetime. These deeds, including the one executed in 1902, were kept by Thomas H. Conner in his box in a vault of a bank except for such time as they were in the office of the register of deeds for recording. He died in April, 1915, and the box containing the deeds were found in his room about a week after his death. On March 21, 1908, Mary Agnes Cole and her husband executed a quitclaim deed to the land to Addison Conner. On the facts found the trial court found as matters of law that the deed executed by Thomas H. Conner on December 17, 1902, vested in Addison Conner an undivided one-half interest in the land, and that Mary Agnes Cole took no interest in the land by virtue of that deed. Another conclusion of the court was that the quitclaim deed of Mary Agnes Cole conveyed to Addison Conner the undivided one-fourth interest which she inherited from her mother, and nothing more. The judgment of the court decreed that the title to the real estate in question was in the plaintiff and quieted it as against the defendant, Mary Agnes Cole, and all persons claiming through or under her.
The defendant contends that the deed of 1902 to plaintiff in effect conveyed to her a one-fourth interest of which she could not be divested without her consent, that the deed made by her father to plaintiff in 1907 did not operate to take that interest from her inasmuch as she had not joined in the conveyance and also because that deed was not in fact delivered to plaintiff, and further that the interest was not transferred to plaintiff by her quitclaim deed of 1908. In the deed of 1902 the defendant was not mentioned as a party, but in the clause questioned was the provision, and the only one pertinent to this consideration, that, if Thomas H. Conner died before his son Addison, the undivided one-half of the land conveyed should revert to his heirs, one of whom was the defendant. As has been stated, Thomas H. Conner died in 1915, while the plaintiff was in life, and the contention is that the happening of the contingency divested the plaintiff of the interest conveyed, with the result that the land reverted to the heirs of the grantor entitling the defendant to the half of her father’s one-half. In the first clause of the deed of! 1902 the language used purports to convey an estate in fee simple. It is an express grant, sale and conveyance of the land to the plaintiff, his heirs and assigns. In the later clause of the instrument is the limitation or restriction that if the grantee outlives the grantor the property shall revert to the heirs of the latter. This restriction is wholly incompatible with and repugnant to the absolute grant of an estate in fee simple given in the first clause of the instrument, and under well-established rules the restriction is void.
Durand v. Higgins, 67 Kan. 110, 72 Pac. 567;
Brady v. Fuller, 78 Kan. 448, 96 Pac. 854;
Kirby v. Broaddus, 94 Kan. 48, 145 Pac. 875.
A contention of the defendant is that the deed of 1902 was not delivered and therefore not effective. The evidence is not preserved in the record, but the trial court has found that the grantor took the deed in person to the office of the register of deeds and caused the same to be filed for record and the same was duly recorded. After recording, the deed was placed in a box, in a vault of one of the banks, and kept there until a few weeks prior to the death of Thomas H. Conner, and it was found in his room about a week after his death. The court finds that there is no evidence showing the purpose of Conner in recording the deed except the fact that he recorded it and the conduct of the parties as has been stated. The court concluded as a matter of fact that by recording the deed, Thomas H. Conner intended a legal delivery thereof, and that the deed was legally delivered. In the answer to the original petition, the execution and delivery of the instrument was admitted, but the same allegation is not contained in the answer to the amended petition. It is alleged, however, in that answer that the deed of .1902 was executed and delivered on December 17,1902, and that by virtue thereof the defendant became the absolute owner of a one-fourth interest in the real estate upon the death of Thomas H. Conner. In this state of the pleadings there can be no contention about the delivery of that instrument.
It being held that the deed of 1902 effected a transfer of the title to plaintiff,.little attention need be given to the deed of 1907, but if 'it has any materiality it is confirmatory of plaintiff’s title and of the judgment rendered in his favor if there was a delivery of the instrument. At the time it was executed the plaintiff and his wife had reconveyed the land to Thomas H. Conner, and about a week later Thomas H. Conner in turn conveyed it back to the" plaintiff and his wife by a warranty deed, reserving to himself the occupancy, rents and profits of the land during his life. It was free from the illegal restrictions that were contained in the first instrument. Possibly a question may have arisen as to the legality of the first transfer, and the subsequent reconveyance of the property by Thomas H. Conner indicates a purpose that plaintiff should be vested with a title to the land. A question is raised as to the validity of this conveyance on the ground that a delivery of the same was not sufficiently shown. The findings with respect to this deed, are that when the plaintiff and his wife executed a deed reconveying the land to Thomas H. Conner, they left it with Thomas H. Conner and the notary, lying on the table in the home of the notary. Before they left, however, the notary had prepared another deed from Thomas H. Conner to the plaintiff, and this instrument was signed by Thomas H. Conner, on October 14 and acknowledged before the notary that prepared the deed. The two deeds prepared at this time were taken by Thomas H. Conner when he left the home of the notary. The deed of 1907 was duly recorded and afterwards placed in the box in the vault in which Thomas H. Conner was in the habit of keeping his papers. A formal or manual delivery of a deed is not essential to a transfer of title. It is largely a matter of intention as manifested by the acts or declarations of the grantor.' We have here the grantor in possession of the instruments after execution. They were taken to the register of deeds for recording and were duly recorded. The recording of the deed is not conclusive of a delivery, but the execution, acknowledgment and recording raises a presumption of delivery, and this has not been rebutted or overthrown by anything shown in the record. The circumstances of the transaction, including the recording of the deed, justifies the inference drawn by the court that the deeds were delivered. Tucker v. Allen, 16 Kan. 312; Wuester v. Folin, 60 Kan. 334, 56 Pac. 490; Kelsa v. Graves, 64 Kan. 777, 68 Pac. 607; Pentico v. Hays, 75 Kan. 76, 88 Pac. 738; Miller v. Miller, 91 Kan. 1, 136 Pac. 953; 18 C. J. 419.
The fact that after the recording of the deeds they were placed in the box of the grantor in the bank does not necessarily negative the theory of a delivery. He had reserved a life estate in the land conveyed and had an interest in the safe-keeping of the evidence of that interest, and therefore the retention of the deed in his box is not inconsistent with a previous delivery or an intention to complete the transfer of the land. (Buck v. Garber, 261 Ill. 378).
The controversary as to the effect of the quitclaim deed may be laid aside as the court found that instrument did not affect the interest in controversy here and could only be regarded as conveying the one-fourth interest which defendant inherited from her mother. No appeal has been taken from that ruling by the plaintiff.
There is some contention that the judgement rendered was not warranted by the pleadings. The deed of 1902 was set forth and relied on in the original petition but was not mentioned in the amended petition. The findings disclose that all the deeds that have been referred to were submitted to the court, and the one executed in 1902 was relied on by both parties. It was considered and given effect in the judgment and it is too late to question the scope of the pleadings in that respect.
Judgment affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.;
In an application to this court for a writ of habeas corpus John Clancy asks for a discharge from imprisonment. The application and writ show that his liberty was restrained under a judgment of conviction for vagrancy as defined in Laws of 1917, chapter 167. The trial was before a justice of the. peace, who found him to be guilty of' the offense charged, and the ‘judgment was that he pay a fine of $100 and be imprisoned in the county jail for thirty days. Upon the application of the petitioner for the writ an order was grantéd that he be released from custody during the pendency of this proceeding, upon the giving of a bond for $500, which he furnished. None of the evidence nor any of the proceedings at the trial have been brought before the court. The case is submitted upon the complaint and judgment alone, and upon these the petitioner insists that the judgment is void and the imprisonment illegal.
In the complaint, consisting of two counts, it was alleged that the petitioner—
“First; Then, and there, was found in the county of McPherson, state of Kansas, was found loitering without visible means of support in the community, he being a member of and an organizer and delegate from the Industrial Workers of the World, or I. W. W., engaged in promoting, advocating and inducing the commission of criminal syndicalism.
“Second: Then and there, was found in the county of McPherson, state of Kansas, without visible means of support in the community, he being engaged in an unlawful calling, he being an organizer and a member of the Industrial Workers of the World, and as such organizer and member of the I. W. W. was engaged in promoting and advocating the principles, of that order, constituting the crime of criminal syndicalism.”
The judgment discloses that he was convicted upon a single charge, and only one penalty was imposed.
The contention of the petitioner is that the statute under which he was convicted is unconstitutional and void. The statute is entitled, “An Act defining vagrancy, and providing punishment therefor.” It provides:
“Any person enga'ged in any unlawful calling whatever, or who shall be found loitering without visible means of support in any community, or who, being without visible means of support, shall refuse to work when work at fair wages is to be procured in the community, or who shall threaten violence or personal injury to fellow workmen or to employers of labor, shall be deemed a vagrant, and upon conviction thereof shall be fined in-any sum not less than one hundred dollars nor more than five hundred dollars, and shall be imprisoned' in the county jail for a period not less than thirty days nor more than six months.” (Laws 1917, ch. 167, § 1.)
It will be observed that the act defines four distinct and separable violations, each of which is denounced as vagrancy, and upon a conviction of any one of the charges the same punishment is prescribed.
The petitioner first assails the title of the act, contending that it does not fairly cover the subject of the act, and embraces more than a single subject. It is a broad and comprehensive title, relating to vagrancy, a single subject. Certain acts of commission and omission are denounced as vagrancy and the punishment for them is prescribed. Under the decisions that have been made these are so clearly within -¿he scope of the title that a discussion of the contention is not justified. (Woodruff v. Baldwin, 23 Kan. 491; The State v. Barrett, 27 Kan. 213; Lynch v. Chase, 55 Kan. 367, 40 Pac. 666; The State v. Scott, 109 Kan. 166, 197 Pac. 1089.)
It is further contended that the act is in violation of sections 5 and 10 of the bill of rights. In section 5 it is provided that “the right of trial by jury shall be inviolate/’ and in section 10 it is provided that — •
“In all prosecutions, the accused shall be allowed to appear and defend in person or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense.” (Gen. Stat. 1915, §§ 109, 114.)
So far as the right to a jury trial is concerned, as specified in section 10, it is not to be regarded as an extension of that granted in section 5. In the latter section there is an enumeration of a number of the rights that the accused shall have in a prosecution for a public offense, and it includes the right to a jury trial given in the earlier section, to which is added the requirement that the accused shall be given a speedy public trial in the county where the offense was committed. Has this right been denied to the petitioner? One contention of the respondent is that vagrancy is a petty offense to which the constitutional guaranty has no application. The trend of the authorities is that the constitutional guaranty of a jury trial is not intended as either an extension or restriction of the existing right but was a guaranty that the right was to be preserved as it existed at the time of the adoption of the constitutional provision, and that as minor and petty' offenses were not then triable by a jury under the common law, the constitutional guaranty does not apply to them. (In re Kinsel, 64 Kan. 1, 67 Pac. 634; Callan v. Wilson, 127 U. S. 540. See, also, cases cited in these authorities.) It has been held, too, that summary trials for the violation of municipal ordinances before an inferior court may be had without a jury where the defendant rhay have an appeal, clogged by no unreasonable restrictions, to a court in which he has a right to a trial by jury. (City of Emporia v. Volmer, 12 Kan. 622; In re Rolfs, Petitioner, 30 Kan. 758, 1 Pac. 523; The State, ex rel., v. City of Topeka, 36 Kan. 76, 12 Pac. 310; In re Kinsel, supra; Topeka v. Kersch, 70 Kan. 846, 80 Pac. 29.) It is said, and some of the.courts hold, that vagrancy is one of the petty police offenses against statutes which might be tried by an inferior court without a jury, as convictions for such offenses had never been regarded to be in conflict with the common-law right of trial by jury. (In re Fife, 110 Cal. 8; State v. Noble, 20 La. Ann. 325; In re Glenn, 54 Md. 572; Byers and Davis v. Commonwealth, 42 Pa. St. 89; 24 Cyc. 144.) However, it cannot be said that the legislature, in defining the offense in question, regarded the offense to be a petty one. It was competent for the legislature to declare, within constitutional limits, what acts of commission and omission should constitute the offense and the measure of punishment to be imposed. The offense having been defined by statute, it is not material what constituted vagrancy under the common law. Offenses under our statute are all statutory and the legislature may provide for a jury trial of offenses that might have been tried summarily without a jury under the common law. The offense denounced under the statute in question is of a serious criminal nature and the punishment to be inflicted indicates that the legislature treated it as a grave misdemeanor. In defining the offense the legislature added to “loitering without visible means of support,” “engaging in an unlawful calling,” and also “threatening injury or personal violence to a fellow workman or employer of labor.” The punishment to be inflicted is a fine- of not.less than $100 nor more than $500, to which is added imprison- . ment in the county jail for a period not less than thirty days nor more than six months. In the crimes act vagrancy is included among the public offenses, and the penalty there described discloses that it was not regarded as a minor offense. The punishment prescribed is a fine which may go to the extend of $500 and imprisonment for one year. It is listed among offenses for which less punishment is to be inflicted and for which a jury trial is accorded as a right of the accused. (Gen. Stat. 1915, § 3774.) We are of the opinion the offense denounced in the act in question adds so much to common-law vagrancy as usually defined and is so criminal in its nature and so grave in the consequences of a conviction, as- to indicate that the legislature contemplated that it was not merely a petty police offense, but rather that it was a misdemeanor in which the accused was entitled to a jury trial upon demand. (In re Rolfs, supra.)
However, it does not appear that the petitioner was denied a jury trial. He was tried before a justice of the peace, and there is a statute which provides that in such a case the defendant may demand a jury and that if no jury is demanded, by him or the state, the case may be tried by the justice. . (Gen. Stat. 1915, § 8307.) Petitioner does not claim that a jury was demanded and no recital is contained in the record relating to it, and it may therefore be assumed that the justice proceeded according to law, and that a jury being waived by both parties the case was tried by the justice. We have a statute -which provides that a jury may be waived in all prosecutions excepting for felonies (Gen. Stat. 1915, §8111), and this being a misdemeanor case a jury trial could.be waived. (The State v. Wells, 69 Kan. 792, 77 Pac. 547; The State v. Stratton, 103 Kan. 226, 173 Pac. 300; The State v. Van Wormer, 103 Kan. 309, 322, 173 Pac. 1076, 180 Pac. 450.)
As against the theory that a jury trial was contemplated by the legislature and that it could be granted or waived as in other misdemeanor cases, it is insisted that the terms of the act indicate a different legislative purpose and therefore the act should be declared invalid. This contention is based on the use of the term “summary,” wherein it is said that the court shall summarily try such persons. Interpreting this, term with others used in the act, we think that it means no more than that there shall be a speedy trial. The trial is to be so far informal that the charge should not await the action of a grand jury or require formal arraignment or the making of dilatory pleas or obtaining of postponements that might be permitted in other cases. It is evident that the legislative thought was that public peace and welfare required such cases to be promptly tried, and therefore provided for prompt arrest and speedy trial. The terms used do not imply that the accused may be denied a jury trial any more than that he might be deprived of counsel or to be confronted with the witnesses brought against him or to have compulsory process to compel witnesses to come and testify in his behalf or other of the constitutional rights afforded an accused. He was entitled to a jury trial for the offense charged as he would have been in the trial of other misdemeanors, and if demanded it would doubtless have been awarded.
There is' a contention that the conviction is void because the charges made under the act are not a valid exercise of the police power. Although the complaint was in form two counts, they substantially charged the same offense. In the first, it was alleged that the petitioner was found loitering without visible means of support, he being an organizer of the I. W. W. engaged in advocating and promoting criminal syndicalism. The second was in effect that he was found' without visible means of support, engaged in an unlawful calling, that he was a member and organizer of the I. W. W. and engaged in promoting criminal syndicalism. While the statute provides that several separable charges are violations, the counts of the complaint were in effect alike, and it may be assumed they were so treated by the trial court. '
' It is argued that mere unemployment and being without visible means of support cannot be erected into a crime. The fact, that 'a person is out of work .and without means of support, may not of itself subject him to a charge of vagrancy. It might be that no employment suitable to his health and ability could be obtained. It is unnecessary to determine, however, whether an idler without visible means of support may be punished as a vagrant. The charge here made is coupled with another, that he is a loiterer, who is engaged in an unlawful calling, namely, the advocacy and promotion of crime. ' While idleness or unemployment may not of themselves be punished in cases where these are united in one person, the legislature has the power to declare him a vagrant and to affix reasonable punishment. As the charge was made and the judgment rendered it is unnecessary to determine what the effect would have been if conviction had been based alone on any one of the acts denounced in the statute. It is enough to say that the charge as made being established by proof is sufficient to sustain a conviction of vagrancy, and that while the petitioner was entitled to a jury trial, if he had demanded it, he was not deprived of that right. As he waived the right he cannot complain that he was not compelled to accept it.
The writ is therefore denied and the petitioner remanded. | [
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The opinion of the court was delivered by
MaRshall, J.:
In this action, the plaintiff seeks to recover damages for injury to his automobile sustained in a collision with a motor truck owned and operated by the defendant. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
A verdict was rendered in favor of the plaintiff for the sum of $275, and special questions were answered by the jury as follows:
“1. Did the defendant’s truck stop on the West side of Main Street nearly in front of defendant’s place of business on the East side and after the street car passed start up and cross the street? Ans. Yes.
“2. How fast was said truck traveling just prior to the collision? Ans. About 4 miles an hour.
"3. How fast was the plaintiff’s car traveling when he first saw the defendant’s truck crossing the street? Ans. 12 to 15 miles an hour.
“4. When plaintiff was fifty feét South of the point of collision how far across the street car track was the front end of the defendant’s truck? Ans. About 15 or 20 feet.
“5. After the street car passed and when plaintiff’s car was at' least 100 feet away was the truck in plain sight of the plaintiff? Ans. Yes.
“6. Were both the head lights and tail lights on defendant’s truck burning. Ans. Yes.
“7. If you find that defendant’s agent Ferry was negligent then state in what acts or omissions negligence consisted? Ans. That he did not stop his truck nor give proper warning, as the plaintiff had the right of way.”
Judgment was rendered for the defendant on the answers to the special questions.
Contributory negligence was an issue. The general verdict included a finding that the plaintiff was not guilty of contributory negligence, but such a finding was contradicted by special findings 2, 3, 4, and 5, which showed that the plaintiff could have seen the defendant’s truck in. ample time to have, avoided a collision. Although the defendant was negligent, as shown in the seventh finding, that did not justify the plaintiff in continuing on his course until he collided with the truck, when he could, by the exercise of ordinary care for his own safety, have prevented, the collision. Under repeated declarations of this court, this prevents his recovery.
Judgment was properly rendered in favor of the defendant, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
These actions were brought by a traction company to recover the freight charges for certain shipments of brick from Coffeyville to Independence for use in street paving in Independence. The bricks were shipped by certain brick companies impleaded herein and consigned to a firm of contractors, Green & Cullen, who had the contract to pave the streets. The Kansas Casualty & Surety Company, principal defendant, is the surety which furnished the contractor’s statutory bond guaranteeing that all claims for labor and materials used, in the construction of the street improvement would be paid. The contractors became bankrupt; the plaintiff’s freight charges for the shipments of brick were not paid; and .the question is whether the surety company is liable therefor under the terms of its bond. The trial court held otherwise, .and the plaintiff appeals.
The statutory provisions (Gen. Stat. 1915 § 7557, et seq.), give all persons who perform labor or furnish materials for the improvement of real property, etc., a lien for the amount due them therefor and prescribe the mo<Je of perfecting such lien and for its enforcement, and provide for the giving of a bond in lieu of such lien. (Gen. Stat. 1915, § 7568, et seq.). And while a street improvement is not subject to a lien, it is regarded as quasi-lienable for the purpose of protecting lawful claims for labor or materials through an action on the' contractor’s bond. (Griffith v. Stucker, 91 Kan. 47, 136 Pac. 937; Crane Co. v. Terminal Railway Co., 98 Kan. 336, 339, 158 Pac. 59.)
It is suggested that the surety company’s liability can be gleaned from the general language of the bQnd guaranteeing faithful performance of the contractor’s agreement with the city in all its parts. But it is difficult to discern anything approaching a breach of the contractor’s agreement with the city of which the traction company may take advantage. In Shannon v. Abrams, 98 Kan. 26, 157 Pac. 447, the surety company bound itself not only to pay claims which might be the basis of statutory liens but “all other obligations and liabilities necessarily incurred" in constructing the improvement. No such all-inclusive obligation is found in the present contract, nor can its terms be fairly so extended. The pertinent recital in the bond provides that if the contractors “shall well and truly pay all claims for labor or material, or both labor and material, which might be the basis of liens . . . and shall hold said city free and harmless of and from all such claims, then this bond is to and shall become null and void; otherwise to be and remain in full force, effect and virtue.”
There is no contention that the city of Independence is liable for the payment of the freight charges.
The appellant’s main argument is that the transportation'of the carloads of brick was labor, and in a certain sense that is true; but it can hardly be said that transportation by rail carriage and electric motive power was the sort of labor the legislature had in contemplation in the enactment of the statute. The gist of the decided cases is that the labor protected by the statute is manual labor for which a daily wage is to be paid, or similar compensation for a quantum of physical toil. . (See notes in 18 L. R. A. 305; 30 L. R. A., n. s., 85; 27 Cyc. 82; 18 R. C. L. 912.)
Appellant cites some cases from other jurisdictions holding that teamsters who haul materials to the place where the improvement is to be made are entitled to a lien. ("Mechanics’ Liens,” Cent. Dig., §47; Dec. Dig., §50; 27 Cyc. 44.) These decisions are not uniform, and doubtless depend on the particular language of the different statutes construed. But it seems that the question under consideration is virtually foreclosed by our own decision in Mann v. Burt, 35 Kan. 10, 10 Pac. 95, construing the mechanic’s lien act of 1872 (ch. 136), which required railroads to exact a bond from contractors engaged in railway construction work “cohditioned that such person shall pay all laborers, mechanics and material men, and persons who supply such contractor with provisions or goods of any kind, all just debts due to such persons, or to any person to whom any part of such work is given, incurred in carrying on such work.” (Gen. Stat. 1915, § 8453.) This court held that while a teamster was himself a laborer and protected by the act to the extent of his own labor, yet he had no lien for the work of his team, and unless the contract was severable, permitting his compensation for his own labor to be computed apart from that of the team, the teamster’s claim for the work of himself and team did not come within the statute. While that decision was under the mechanic’s lien statute relating to railroad construction work, yet its terms, although less verbose, are as comprehensive as those of the general mechanic’s lien act which was originally enacted by the same legislature (Laws 1872, ch. 141), and it may be inferred that the recent broadening of the latter act, by the amendments to sections 7557 and 7559 by chapter 235 of the Laws of 1919, was prompted by the decision in Mann v. Burt, supra. At the time the plaintiff’s freight charges were incurred, in 1916, the act read:
Ҥ7557. Any person who shall under contract with the owner . . . perform labor . . . for the erection, alteration ... of any building, im provement . . . shall have a lien . . . for the amount due to him for such labor. . . .
“§ 7559. Any person who shall . . . perform such labor under a subcontract . . . or as an artisan or day laborer . . . may obtain a lien ... for the amount due him for such . . . labor. .' . .”
The corresponding parts of the act, as amended in 1919, read:
“Section 1. Any person who shall under a contract with the owner . . . either by himself or with horse, or team of horses and driver, or auto truck or auto truck and driver . . . perform labor by himself or with horse, or team of horses and driver, or auto truck or auto truck and driver . . shall have a lien . . . for the amount due to him for such labor of himself horse, team, horses and driver, or auto truck or auto truck and driver. . . .
“Sec. 2. Any person who shall . . . perform such labor by himself, with horse or team, or horses and driver, or auto truck or auto truck and driver, under a subcontract . . . or as an artisan or day laborer . . . may obtain a lien ... for the amount due him for . . . labor, and any artisan or day laborer when working by himself, or with horse, '’team or horses and driver, or auto truck or auto truck and driver . . . may obtain a lien ... for the amount due him for such . . . labor by himself or with horse, team or horses and driver, or auto truck or auto truck and driver. . .
In Bank v. Insurance Co., 109 Kan. 562, 200 Pac. 281, and in School District v. Cloepfil, ante, p. 188, 210 Pac. 192, this court declined to extend the provisions of the mechanic’s lien act to cover moneys loaned to pay for labor and material used in constructing a building. The present case, while not strictly analogous, is bound by the same limitations.
All through the mechanic’s lien act, both in its original and amended form, the concern of the legislature seems to have been for the artisan and the day laborer, and while the legislative purpose is remedial and entitled to liberal interpretation, yet its terms cannot be extended by judicial construction to hold that the plaintiff’s freight charges for the transportation of the carloads of brick from Coffeyville to Independence can be classed as labor so as to subject the defendant surety company to liability therefor under the terms of its bond.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to cancel a contract for the sale of a quarter section of Trego county land.
In February, 1916, the plaintiff and defendant entered into a written contract whereby the plaintiff agreed to sell and the defendant agreed to buy the land on the wheat plan of payment. Defendant was to break and cultivate the land and sow it to wheat and give the plaintiff half the crop on or before October 1 in each year until 6,800 bushels should be thus delivered, whereupon plaintiff was to convey the property to defendant. The contract also provided that if the defendant failed to perform his contract punctually, time being of the essence, plaintiff should have the right to declare it void, and that defendant’s interest in the property should terminate, and all payments made and improvements placed on the property by defendant should become the property of the plaintiff.
Pursuant to this contract, the defendant made the following payments :
Dec. 10, 1918, 500 bu. of wheat. $980.00
May 22, 1920, 500 bu. of wheat. 961.65
Mar. 5, 1921, 848 bu. of wheat. 1,201.79
Across the back of the contract, oh the middle of the page, and isolated from the text of -the agreement signed by the parties, nor referred to therein, was a printed but unsigned recital—
“It is intended that this contract, so far as share of wheat is concerned, terminates at the end of five years from the date hereof, and the tmpaid balance shall be calculated on the basis in dollars and cents of the market price of wheat at that time, and to be paid in cash in full, but for any time it should remain unpaid to draw interest at the rate of 8 per cent per annum.”
On August 10, 1921, this action was begun. Plaintiff set up the contract and alleged the default of defendant—
“This plaintiff says further that more than five years have elapsed since the making of said contract, that the amount endorsed on said contract is all that has been paid on the same and that the said defendants have neglected to make any further payments thereon. .
“The plaintiff says further that by the terms of said contract it is especially specified that time is of the essence of said contract. .
“The plaintiff has declared, and does at this time declare said contract null and void on account of above failures of the defendants to comply with the terms thereof, and prays that he may have judgment according to the terms provided for forfeiture in said contract and that the interests of the said defendants and each and every person claiming through or under them shall be forever barred.”
Defendant’s answer contained a general denial, and a plea of waiver as to the time of belated deliveries of wheat by plaintiff’s acceptance thereof; that the land was raw prairie when he took possession, and that he had erected thereon a house, barn, chicken house, cement cave, a well and windmill, and had fenced and cross-fenced the property, all of the aggregate value of $3,500, which he would lose together with the $3,143.44 worth of wheat admittedly received by the plaintiff, if the forfeiture prayed for by plaintiff were allowed and decreed by the court. Defendant also alleged that the rental value of the raiv prairie land in the condition it was when the contract was made was $225 to $240 per annum.
Defendant demanded a jury trial, which was granted over plaintiff’s objection. Special questions were answered, and a general verdict was rendered in favor of appellee for $1,166. '
The special findings read:
“1. Q. Did the defendants deliver to the plaintiff the wheat provided for in the contract at the times at which it was specified they should by the terms of the contract? A. No.
“2. How much wheat did the defendants thresh from said land in the year 1920? A. 1,696.
"3. Did the plaintiff complain at or near the time of the delivery of the 848 bushels that the defendant had failed to deliver the full amount they were to deliver? A. Yes.
“4. Did the plaintiff ever waive the failure of the defendants to deliver the wheat at the time called for in the contract? A. Yes.
“5. If you find that the defendants failed to deliver the amount that they were required to deliver in the year 1920, state whether the plaintiff ever waived the delivery of this shortage, if any you find? A. We find no shortage.
“7. What was the price of No. 3 wheat on February 18, 1921, at Ellis, Kan.? That is, per bushel? A. We do not know.
“8. Did the defendants ever tender the plaintiff the balance of the purchase price of said land either in money or in wheat? A. No.
“9. What sum if any do you find that the defendants still owe the plaintiff upon the contract price for the purchase of said land? A. $1,166.
“10. When was the balance of the purchase price of said land to be paid? A. No time set.”
Plaintiff moved to set aside the general verdict, and findings 4, 7, 9 and 10, and for a finding by the court that the balance of wheat due on the contract was 4,952 bushels, of the value of $1.50 per bushel as shown by the evidence.
This motion was sustained in all its parts, and judgment was entered for plaintiff for $7,997.24 and a lien therefor was imposed on the property, and execution ordered unless the judgment were paid in ten days. Order of sale issued accordingly; the land was sold by the sheriff, plaintiff being the bidder; and the sale was confirmed subject to six months’ redemption.
Defendant appeals, complaining generally of the judgment, and because the trial court set aside the jury’s findings and rendered judgment contrary thereto, and because the redemption period was limited to six months.
This court deems it unnecessary to consider all these assigned errors. It has been declared time and again that courts abhor forfeitures and will lend no aid- in their enforcement where that disagreeable task may be avoided. (Cue v. Johnson, 73 Kan. 558, 85 Pac. 598; Wilson v. Begshaw, 108 Kan. 543, 546, 196 Pac. 605.) In this case, if the forfeiture demanded must be enforced defendant stands to lose all he has paid, $3,143.44, and all the improvements he has placed on this property, and this, according to the judgment, is unavoidable unless the further sum of $7,997.24 be paid within six months. This inequitable result is obviously due to the terms of the isolated paragraph printed on the back of the contract, which declared that the time for payment of the land by the delivery of wheat was limited to five years, and that the basis for computing any remaining amount then due should be market value of wheat at that time. This isolated paragraph on the middle of the back of the contract can only be considered as a part of its text by a most elastic and liberal interpretation — an interpretation which could scarcely be given even to effectuate justice between the parties, and certainly not one which in equity and good conscience can be given to aid a forfeiture which so greatly offends our sense of justice. The contract signed by the parties clearly and completely contained all the necessary and pertinent requirements for the sale and purchase of the land. The number of bushels to be paid was specified, the times of delivery were specified, the proportion of each year’s crops to be delivered was specified, and since the matter of time when half the crops would aggregate 6,800 bushels depended wholly upon the uncertainties and hazards of agriculture, no precise time for completion of deliveries of wheat could be specified. The testimony was in harmony with that mew.
[Counsel for defendant.] “Mr. Beer, was anything said in that conversation about when the five years should be up? A. No.”
[Objection. Overruled.]
“Q. I am asking as to whether anything was said about when the five years should terminate?”
[Objection. Overruled.]
“A. No. There was nothing said.
“Q. Mr. Beer, at the time you made this contract did you agrep with Mr. Olson that you would pay him all that was left at the end of five years from the time you made the contract; that would be February, 1921. Did you agree to pay him all that was left on the contract at that time, in cash? A. No.”
If this provision for termination of wheat payments and maturity of the contract was a part of the agreement of sale and purchase, it should have been embodied in the text of the contract and signed by the parties, not isolated and set down unsigned on the middle of the back of the contract. Isolated recitals on letter heads, bill heads and invoices, and in foot potes and on the back of printed forms of mortgages and other contracts, not directly connected with the main text nor an obvious part of it, and to which no reference is made in the written agreements signed by the parties, are often excluded from consideration in the interpretation of contracts, not alone in equity but in law also. (Sturm v. Boker, 150 U. S. 312, 37 L. Ed. 1093, and Rose’s notes thereto in appendix, 646, 647; The Leader Co. v. L. R. Ry & Elec. Co., 120 Ark. 221; Summers v. Hibbard & Co., 153 Ill. 102, 46 A. S. R. 872; Sturtevant Co. v. Fireproof Film Co., 216 N. Y. 199, L. R. A. 1916 D, 1069, 1072; Menz Lumber Co. v. McNeeley & Co., 58 Wash. 223, 28 L. R. A., n. s., 1007; 13 C. J. 537; 6 R. C. L. 847-852.)
Touching minor matters invoked, we note that although time was of the essence of the contract and the annual deliveries of wheat were always later than October 1, yet the deliveries were always accepted; and of course the acceptance of belated deliveries was a waiver of the consequences of delay. (National Land Co. v. Perry, 23 Kan. 140; Lumber Co. v. Horrigan, 36 Kan. 387, 390, 391, 13 Pac. 564; Shade v. Oldroyd, 39 Kan. 313, 18 Pac. 198; Holman v. Joslin, 110 Kan. 674, 204 Pac. 697; 205 Pac. 629; 13 Cyc. 689.)
Otherwise than in these belated deliveries of wheat, there has been no breach of this contract. It is still in full force. It follows that the judgment must be reversed and the cause remanded with instructions to enter judgment for defendant.
It is so ordered. | [
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The opinion of the court was delivered by
JohnstoN, C. J.:
This was an action for the partition of a tract of land in Miami county. The partition was made as prayed for by the plaintiff, and defendant appeals.
It appears that a controversy arose between the parties as to the share of land to which each was entitled and oral evidence on the question was received. The record discloses that no motion for a new trial was made by the defendant, and for that reason the plaintiff asks a dismissal of the appeal. Another ground for which a dismissal is asked is that the defendant has accepted the benefits of the judgment which she attacks, and therefore is not in a position to question its regularity or validity. As to the latter point the record shows that after the judgment of partition was rendered the property was appraised by commissioners, and it was ordered by the court that the parties to the action should have a certain time in which to elect to take the property at its appraised value, and that if neither elected to take it at that value the property should be sold. The report of the commissioners was approved. The appellant elected to take the property at the appraised value, and the election was confirmed and the deed ordered to be made to her. Under the judgment the defendant was entitled to one-fourth of the value of the property and one-fourth of a note which had been received for real estate previously sold. The plaintiff paid into the court one-fourth of the distributive share to which the defendant was entitled, and three-fourths of the costs adjudged to be paid by the plaintiff. The defendant accepted and receipted for $993.03 as her distributive share of the partitioned property.
The defendant may not accept the benefits of the judgment and attack its validity upon an appeal. As the court in its decree adjudicated the controversy as to the shares to which each party was entitled and made an order for the partition and distribution of the property, and the defendant thereafter voluntarily accepted the share adjudged to be hers, she is estopped from seeking to have the judgment reviewed. It has been decided that,
“A party who complains of a judgment must be consistent in his conduct with reference to it. If he recognizes its validity he will not be heard to say that it is invalid.” (Babbitt v. Corby, Adm’x, 13 Kan. 612, 614; see, also, Hoffmire v. Holcomb, 17 Kan. 378; Wolf v. McMahon, 26 Kan. 141; Savings Bank v. Butler, 56 Kan. 267, 43 Pac. 229; Fidelity & Deposit Co. v. Kepley, 66 Kan. 343, 71 Pac. 818; Seaverns v. The State, 76 Kan. 920, 93 Pac. 163.)
The appeal is dismissed. | [
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The opinion of the court was delivered by
DawsoN, J.:
This was a proceeding in habeas corpus by Albert C. Whittaker to obtain the custody of his adopted child, who had been kidnapped by its natural father, David Swyden.
It appears that the principal parties in interest formerly lived in Connecticut. In 1915, the child in question was born to David Swyden and Lillian Swyden, his wife, in the town of Windham, Connecticut. In 1916, Lillian Swyden filed in the probate court for the district of Windham an application for guardianship, alleging that she was the mother of this child, Paul W. Swyden, then fifteen months old, and that the child was and for a considerable time had been in the care and keeping of Albert Whittaker and wife—
“Because the father of said infant child is wholly unable to care for said child, and in fact has not supported his children for several years, and as a result of his indolent and shiftless disposition is not a suitable or proper person to have the care, management and custody and control of said infant, Paul W. Swyden.”
Pursuant to notice and a hearing, the probate court appointed Ernest P. Chesbro, a selectman of Windham, as guardian. Chesbro accepted the appointment. Thereafter, in May, 1917, an agreement of adoption was made between the guardian and Albert Whittaker and wife, the child’s mother consenting, whereby the infant Paul became the adopted child of Whittaker and wife. Upon notice to David Swyden, a hearing was had before the probate court for the approval of this adoption agreement, and it was so apiproved on May 28, 1917.
Some two years later, when the child was four years old, David Swyden, who had taken up his abode in Oklahoma, came to Wind-ham, Conn., and kidnapped the child from the front yard of his adoptive father’s residence in Connecticut. He carried the child to Oklahoma and later to Wichita and placed it in the care of his sister. Eventually plaintiff located the child, and commenced this proceeding to obtain its custody. The main defense relied on by Swyden is that he npver surrendered his rights as parent and natural guardian. At the trial the record of proceedings in the probate court of Windham, Conn., showing the mother’s application for guardianship for the child, the appointment of the selectman as guardian on notice to David Swyden, and the agreement of adoption between the mother, the guardian, and the Whittakers, and its approval by the probate court, on notice to Swyden, were all introduced in evidence.
The trial court found that the adoption proceedings in Connecticut were invalid “for the reason that the father did not consent” to the adoption, and gave judgment for defendant. Apparently this judgment was reached because of plaintiff’s failure to introduce in evidence the pertinent provisions of the Connecticut statutes relating to the adoption of- children, and the trial court applied the rule that in the absence of evidence to the contrary the laws of another state are presumed to be like our own (which would require the father’s consent to the validity of the adoption) and that such rule and presumption were more potent than the mandate of the federal constitution requiring that “full faith and credit shall be given in each state to the . . . judicial proceedings of every other state.” (U. S. Const., Art. IV, §1.) The justices of this court are not of one mind on the correctness of this reasoning and this precise point will not be determined because the want of evidence touching the Connecticut law of adoption was cured by its introduction at the hearing of the motion for a new trial, and it was then clearly shown that the proceedings in the probate court were in substantial conformity with the law of Connecticut. (.Gen. Stat. of Conn. 1918, chapters 248, 249.) It was likewise shown by. affidavits of the guardian and selectman, the probate judge, the clerk of the court, the town clerk, and the attorney for Lillian Swyden, that David Swyden appeared personally in the probate court and made a defense to the appointment of the guardian, and that he also personally appeared and was heard on the matter of the approval of the adoption agreement.
While it is true that there was no showing why the Connecticut statutes were not introduced in evidence at the trial, it seems apparent that it must have been because of plaintiff’s reliance on the “full faith and credit” clause of the federal constitution. However that may be, the whole case was before the trial court just as comprehensively and conveniently on the hearing of the motion for a new trial as it was at the first hearing; it was not a jury case; and the trial court should have taken the Connecticut statutes into consideration as part of the evidence. There was no dispute about the facts. The fitness of the adoptive parent to have the custody of the child was not in question. The only defense of Swyden was that he had not consented to the adoption. The want of that consent, under Connecticut law, did not vitiate the adoption proceedings.
SYLLABUS BY THE COURT.
Habeas Corpus — When Adopted Child’s Welfare is Not a Judicial Question. It is only when an adoptive parent and lawful custodian of a minor child is an unfit person to have its custody that the welfare or “best interests” of the child.can be drawn in question in an action to have it restored td him when it has been kidnapped from his custody; and when there is neither evidence nor finding of such unfitness, the welfare .of the child is the concern of the adoptive parent and not the concern of the trial court.
In Michigan Trust Co. v. Ferry, 228 U. S. 346, 57 L. Ed. 867, 874, where the validity of a Michigan probate court proceedings had been challenged in Utah, it was held that the full faith and credit clause of the federal constitution governed such proceedings as well as ordinary actions. The court said:
“Upon this question courts of other jurisdictions owe great deference to what the court concerned has done. It is a strong thing for another tribunal to say that the local court did not know its own business under its own laws. Even if no statute or decision of the supreme court of the state is produced, the probability is that the local procedure follows the traditions of the place. Therefore we should feel bound to assume that the Michigan decree was not too broad, in the absence of statute or decision showing that it was wrong.” (p. 354.)
It follows that the judgment must be reversed and the cause remanded with instructions to enter judgment for the plaintiff and directing that the defendants deliver the infant Paul W. Whittaker who is otherwise named in the record as Paul W. Swyden into the custody of his adoptive parent, Albert Whittaker, petitioner herein.
It is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injuries sustained by the plaintiff on October 3, 1919, while engaged in performance of duties as a workman in the shops of the Union Pacific Railroad Company. A demurrer to the petition was overruled, and the defendant appeals.
On June 21, 1921, action for the injury complained of was commenced against the railroad company alone. On April 12, 1922, the plaintiff amended his petition by making the director-general a party, and by making the allegations which the amendment necessitated. On April 12, 1922, the director-general was served with process, and in due time he demurred to the petition, for the following reason:
“Because the cause of action sued on is alleged to have accrued on October 3, 1919, and this action was not brought against this defendant until April 12, 1922, and was therefore brought more than two years after the passage of the transportation act of 1920, which act was enacted and became effective on February 29, 1920, and said cause of action was therefore barred when this action was commenced against this defendant, by section 206 of said transportation act.”
As indicated, this demurrer was overruled. The railroad was discharged on demurrer to the petition, because the accident occurred while its transportation facilities were operated by the government.
The transportation act of 1920 became effective on February 29, 1920. Pertinent provisions read as follows:
“Sec. 206. (a) Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or of the Act of August 29, 1916) of such character as prior to Federal control could have been brought against such carrier, may, after the termination of Federal control, be brought against an agent designated by the President for such purpose, which agent shall be designated by the President within thirty days after the passage of this Act. Such actions, suits, or proceedings may, within the periods of limitation now prescribed by State or Federal statutes but not later than two years from the date of the passage of this Act, be brought in any court which but for Federal control would have had jurisdiction of the cause of action had it arisen against such carrier.
“(b) Process may be served upon any agent or officer of the carrier operating such railroad or system of transportation, if such agent or officer is authorized by law to be served with process in proceedings brought against such carrier and if a contract has been made with such carrier by or through the President for the conduct of litigation arising out of operation during Federal control. If no such contract has been made process may be served upon such agents or officers as may be designated by or through the President. The agent designated by the President under subdivision (a) shall cause to be filed, upon the termination of Federal control, in the office of the Clerk of each District Court of fhe United States, a statement naming all carriers with whom he had contracted for the conduct of litigation arising out of operation during Federal control, and a like statement designating the agents or officers upon whom process may be served in actions, suits, and proceedings arising in respect to railroads or systems of transportation with the owner of which no such contract has been made; and such statements shall be supplemented from time to time, if additional contracts are made or other agents or officers appointed.” (41 U. S. Stat. at Large, ch. 91, § 206, p. 461.)
The fifteenth paragraph of the plaintiff’s petition reads as follows :
“That the President of the United States designated the Union Pacific Railroad Company, as its agent, upon which service could and should be made in all actions growing out of Federal control; that the appointment of the Union Pacific Railroad Company as the agent of the government was not filed in the office of the clerk of the district court of the United States for the district of Kansas until June 4, 1920.”
The contention of the plaintiff is that because designation of a person on whom process might be served was not filed until June 4, 1920, the suit might be commenced at any time before June 4, 1922. -The difficulty with the contention is, it requires erasure from the act of congress of a very definite and plain provision, and the insertion of another provision more adaptable to the plaintiff’s needs.
After relinquishing control of the railroads, the government was not obliged to suffer itself to be sued, -through an agent or otherwise, on account of causes of action arising out of possession and use of the transportation systems of the country. Having decided to permit actions to be maintained, the government could impose such conditions as it. saw fit. One was that actions must be brought within the period of appropriate state or federal statutes of limitations. Another was that actions must be brought not later than two years from date of passage of the transportation act, or not later than February 28, 1922. This condition was not affected, modified, relaxed, or tolled, by anything else contained in the act.
A government agent who might be named as defendant was to be designated within thirty days after passage of the act; but the limit of time within which actions might be brought against him was not thereby extended thirty days, or any other period. Provision was then made relating to service of process to bring the designated agent into court. Certain lists were to be filed, which might be supplemented from time to time. These provisions, like the one for designation of an agent, went into effect with passage of the act, and were to be complied with afterwards; but the set time within which the government consented the remedial scheme might be used against it was not extended a single day. We are not dealing here with a statute of limitations, but with a condition imposed on exercise of a privilege, and'the uncompromising language is, “but not
The plaintiff says his petition states a good cause of action, either at common law, or under the workmen’s compensation act of this state. Granted. He did not assert it against the federal agent within the period he was permitted to do so. The plaintiff says his cause of action was not changed by amendment of the petition, and it may be conceded the cause of action is just what it has always been since the day of the accident. The point is, he did not assert it against the federal agent according to the conditions making that official liable to respond. The plaintiff cites a case in which suit was brought against a railroad company for damages for in-_ jury occurring during federal control, and it was held proper to bring in the federal agent by amendment. True enough. The fault in the present proceeding is not that the federal agent was charged by amendment of a pleading in a pending action, but that the plaintiff did not bring him in within the period he was subject to suit. The plaintiff cites cases in which, to correct a mistake, the proper plaintiff was substituted for the one in whose name the action had been commenced. In such cases it is held the cause of action is not changed, and the substitution may be made, although the time for commencing an action after the cause of action arose, has expired. The cases were well decided, but'have no application to this controversy. Here the federal agent, made liable by concession of the government, if called on to answer within a fixed period, was not brought in until the period had expired.
The judgment of the district court is reversed, and the cause is remanded with direction to sustain the demurrer to the petition, and to dismiss the action. | [
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The opinion of the court was delivered by
Porter, J.:
These two cases have been argued and submitted together. One is an appeal in a divorce case, the other is an appeal in a will case wherein the district court established a destroyed will and ordered it duly probated. There is involved also the final disposition of a special proceeding by motion to set aside an order which this court entered reversing the judgment in the divorce case upon a stipulation of the parties which it is alleged was procured by the fraud of the appellant. This motion must be disposed of first.
MOTION TO VACATE.
The motion to set aside the order of reversal charged that Sarah E. Craig obtained a judgment of divorce in the district court of Rawlins- county from her husband, S. J. Craig, on the ground of extreme cruelty; that he appealed from the judgment and the case was set for trial here on February 11, 1921; that in the meantime Mrs. Craig became insane and was in a private hospital; that appellant lured her from the hospital and induced her to sign a stipulation upon which the court acted in reversing the judgment; that following the spreading of the mandate of this court in the district court, the appellant also induced Mrs. Craig to destroy a will that she had made subsequent to the divorce by which she devised her property to certain relatives and kinsfolk and that shortly thereafter she died. The devisees under the will, together with the executor named therein, are the moving parties in the special proceedings in this court to set aside the order of reversal.
On the preliminary hearing of the motion it was held that this court has both inherent and statutory power to prescribe a rule of procedure for setting aside and correcting an order here procured by the fraud of one of the litigants. The procedure approved was by motion to set aside the order upon personal service of the motion and. due notice of the time for hearing served upon the litigant charged with the fraud.
In the opinion it was held that the divisees under the will of Mrs. Craig, the successors to her estate, and her executor were proper parties to attack the order of reversal procured by appellant’s fraud. It was also held that “the death of á party to an action for divorce pending its appeal abates the action on .appeal so far as it affects the marital status, but it does not necessarily abate the action or appeal so far as property rights are concerned.” (Craig v. Craig, 110 Kan. 13, syl. ¶ 5, 202 Pac. 594.)
The court appointed the Honorable R. M. Pickier, commissioner to take testimony on the matters alleged in the motion, and report his findings of fact thereon. The special proceeding now comes before the court upon the report of the commissioner.
Before considering the evidence and the finding of the commis- ' sioner, it should be said that the appellant in his brief reargues the question of the jurisdiction of this court to entertain the proceedings to vacate the order of reversal. That matter was gone into quite thoroughly in the opinion on the preliminary hearing of the motion, and the court is well satisfied with the conclusions reached at the time and the declarations of law as there announced.
The following is a summary of the more important findings of the commissioner:
Sarah E. Craig, plaintiff in the divorce action, was married to the appellant, S. J. Craig, on October 2, 1916. She had been a widow since December 30, 1915, and had been twice married before, living happily with her second husband, Morse, for about forty years. At the time of his death they had property of the value of about 844,000, a part of which consisted of a section of land in Rawlins county. This property belonged to Mrs. Morse at the time of her marriage to Craig. Craig owned about 1600 worth of property. At the time of her marriage to Craig he was 12 years younger than she. Their marriage resulted unhappily. She left home three times: in September, 1917, .in April 1919, and again in September, 1919; each time claiming it was on account of abuse and indignities by the appellant. She sued for divorce in September, 1919. On the trial she testified to acts of cruelty on the part of her husband (not necessary to detail here), among other things, that he uttered slanderous words about Morse, her former husband; tried to prevent her visiting with her neighbors until she finally refrained from doing so; threatened to beat her until her neighbors would not know her; made attempts to take her life by the use of chloroform; accused her of “whoring” around with certain persons he mentioned.
The decree of divorce was granted on March 27, 1920. Mrs. Craig was given her own property and the defendant barred from all claim thereto. Craig appealed the case. The brief of Langmade and Howard, attorneys for Mrs. Craig, was filed January 27, 1921. The case was assigned for hearing February 11, 1921. On April 17, 1920, a few weeks after the decree of divorce, Mrs. Craig executed an instrument intended to be her last will and testament, making various devises of her property to the persons who are petitioners in the proceedings to vacate. The instrument was prepared by Judge W. S. Langmade, her attorney, and written by Earl E. Howard. About November 1, 1920, Dempster Scott and Charles Scott, of Atwood, attorneys for Mr. Craig, prepared a stipulation for the reversal of the appeal in the divorce case. During the latter part of November, 1920, Mrs. Craig was at the home of Mrs. Messmaker. Judge Langmade called on her and took her to the farm where Mr. Craig lived. She talked with Craig while Judge Langmade left them alone for about ten minutes, when Craig came and showed him the stipulation for reversal.
On January 18, 1921, the stipulation for the reversal was signed by Mrs. Craig, and on the same day she notified Langmade and Howard by letter that she no longer desired their services in the ease pending in the supreme court. February 7, 1921, W. H. Cowles, of Topeka, attorney for appellant, prepared a motion to be signed by her to strike from the'files the brief of her attorneys in the divorce case and for reversal and dismissal of the action. Mr. Cowles mailed the instrument to S. J. Craig, and on February 10 Mrs. Craig signed it and swore to it before a notary public procured by S. J. Craig, and the motion was then mailed by S. J. Craig to the clerk of the supreme court. On February 11, the stipulation for reversal was filed in the supreme court by W. H. Cowles, attorney for appellant, and on February 11, the motion was allowed and the order entered reversing the case and dismissing the appeal. No one appeared for the appellee when the order was made. On March 21, 1921, the mandate of the supreme court was spread on the records of the district court of, Rawlins county and the action was dismissed.
The affidavit already mentioned prepared by Mr. Cowles at Topeka after an interview with Mr. Craig, and which Craig induced his former wife to swear to before the notary, stated the names of a half dozen or more relatives and neighbors of Mrs. Craig, and charged that they had induced her to institute the divorce proceedings. The commissioner finds that Mr. Cowles left the names of the parties blank in the form of the affidavit he prepared; that when they went before the notary Mrs. Craig suggested some of the names and S. J. Craig suggested others. The commissioner finds there was no evidence upon which to rest the charge contained in the affidavit and there was no evidence of any attempt upon the part of any of the relatives of Mrs. Craig to injure or abuse her. On the day the action was dismissed in the district court Mrs. Craig was in attendance, accompanied by Mr. Craig. She was not in the court room when the divorce case was called, and the court inquired whether anyone was representing her. Judge Langmade was in the room and was asked whether he represented her. He stated that he had been an attorney in the case, but had been given to understand that his services would be no longer required; that he was not acquainted with the circumstances attending the proposed dismissal, but supposed it was all right so far as he knew. The journal entry dismissing the action was, at the suggestion of Mr. Cowles, approved by Mrs. Craig.
On February 20, 1921, after the dismissal of the divorce case, Herbert Howland, attorney of Rawlins county, was called to the place where the appellant and appellee were living to draw a will. On this occasion Mrs. Craig carried on conversation with Howland which he deemed visionary. She seemed to be in fear of her neighbors and wanted them arrested. She named individuals who Mr. Howland said he knew personally were not making any trouble for her. When the will was being drawn, Mr. Craig made some suggestions and Howland made some. In discussing the will Mrs. Craig was sometimes prompted by Mr. Craig and by Mr. Guard, one of the witnesses to the instrument. The attorney, Howland, did not then believe Mrs. Craig to be of sound mind. Her talk at the time was disconnected and she would forget what she was talking about. Noting her condition, he drew a part of a will and told her she would better wait until she came to town. When the will was executed, Mr. Howland thought that if it were contested it would not stand; he regarded it merely as something to.'pacify her until she could get to town.
During Mrs. Craig’s visit in Kentucky she became very ill. When she had recovered sufficiently to travel, she returned in August, 1920, she was in a weak and feeble condition on the journey as well as after her arrival. She lived for brief intervals with different relatives after her return; failed to improve mentally or physically, and on December 27, 1920, she was received as a patient for treatment at the Henneberger Hospital at Atwood, where she remained until January 22, when she left under the circumstances hereafter related. Persons who had formerly known her observed a marked change in her immediately upon her return from Kentucky. Her mind appeared to be unstable, she would start to tell something and change to something else; was constantly talking about her divorced husband; said she was afraid of him; she feared to have him come upon the place for fear he would kill her; she did not appear to be able to concentrate her mind or think connectedly; said to one witness “I want someone to look after my threshing.” He agreed to attend to it; she then spoke of getting someone else, and later of going over to attend to it herself; had a fainting spell in November, 1920; was sick for several days, unable to get around without assistance. At one time she would say that if Craig, would be good to her she would like to have him back, and in a short time would say that all he wanted was her money. While at the hospital she told others that Craig wanted her to sign a paper and that she was afraid to do so and was afraid of him; that he wanted her to leave the hospital and go to a hotel and let him get another doctor; that he asked after her every day and she was afraid that he would take her away. She imagined that he had sent her candy that was poisoned and suggested that some of it be given to the nurse to find out what effect it would have. When she entered the hospital in December she had bronchitis, a cough, irregular heart, was. laboring under false impressions and hallucinations. When she first went to the hospital she told Dr. Henneberger she was afraid of Mr. Craig and did not want to see him. Instructions were given to the nurses not to admit him. In ten days or two weeks afterwards it was found she was receiving notes and letters from him. The doctor testified that after receiving one of the letters she told him that Craig wanted to marry her. She seemed as excited over it as a girl of sixteen. She changed her mind within the space of a' day or two, and shortly before she left the hospital requested that Craig be permitted to see her. The doctor refused to permit this until after one of Craig’s attorneys had called him up on the telephone several times and insisted that Craig should be admitted. When he was admitted she seemed still to fear to see him. But after he commenced visiting her, this fear subsided and she was then anxious for him to visit her.
The commissioner gave special weight to the evidence of Dr. Henneberger, on the ground that he appeared to have fair training and means of observation of mental ailments and because -he had Mrs. Craig’s condition continuously under his personal observation during the time she was in the hospital, from December 27 to January 18, 1921, and also had some knowledge of her before she was received for treatment at the hospital. Dr. Henneberger testified that Mrs. Craig seemed to be in constant fear and had delusions of being persecuted; that her mental condition was not normal; she was suffering from paranoia, a form of mental disease known as delusional insanity; the technical form of delusional insanity known as monomania. According to the doctor she had no lucid intervals and at all times seemed subservient to the will of others, easily influenced. When she left the hospital she had not been discharged; she went away in the company of Mr. Craig on the pretense of merely taking a ride, but the doctor afterwards discovered that it was a plan to get her away, and she did not come back.
The commissioner finds that the matters testified to by Dr. Hennebei’ger are so borne out and supported by the other findings and circumstances that they should and were found to be facts.
About March 1, 1921, Mrs. Craig destroyed the will executed by her on the 17th day of April, 1920, which is referred to in the evidence and findings as the “Langmade will”; she also destroyed at the same time the will drawn up by Howland on the 20th day of February, 1921; but after her death, which occurred on the 17th day of April, 1921, an impression copy of the Langmade will, preserved by the scrivener, was obtained, and proceedings were had in the probate court resulting in this will being admitted to probate notwithstanding the destruction of the original instrument.
The commissioner finds that from the time she was taken from the hospital and for about one week before she was so taken away by S. J. Craig, Mrs. Craig was under his domination, all fear of persecution at his hands had passed, and in her mind had been transferred to those whom she now considered as enemies. She was then claiming that there never would have been any trouble between her and Mr. Craig if it had not been for the meddling of her relatives, and she became possessed with the belief that there was some kind of fraud and conspiracy between her relatives and neighbors to keep her and Mr. Craig apart; that her relatives and neighbors, not Mr. Craig, were after her money.
The commissioner finds that Craig had opportunities of influencing Mrs. Craig, and that there was weighty evidence to substantiate the charge that he had exercised this influence, referring particularly to his persistence in seeking her at the hospital; his insistence and perseverance in the face of a refusal to admit him; the action of his attorneys, who took the matter up with Dr. Henneberger in his behalf; his appearing later with the stipulation which he wanted to have her sign; getting her out of the hospital under the pretense of taking her for a ride, and her ready acquiescence; the preparation and procuring of the form of an affidavit in which she names the neighbors, who, in her derangement, she imagines are plotting against her; Craig’s suggestion of names to be inserted in it; his suggestions made at the time of the drawing of the Howland will on February 20, 1921; his keeping in his possession the blank form of the stipulation for reversal of the appealed case from November 1 to January 18, when through his persistence she signed it; the letter of his attorney giving him directions about the contemplated destruction of the first will, in which the attorney directs him “to let her do this herself.” These and other circumstances, the commissioner held, tended to prove that he was not only cognizant of his power to mold her mind to his will but he exerted it as opportunity afforded.
The commissioner finds that after her illness in Kentucky her health was impaired and her mentality affected; she was not capable of connected thought or of transacting business; was of unsound mind, easily influenced and swayed by anyone with whom she would converse; with any friend with whom, she would talk; that she was affected with paranoia which progressed until its symptoms were apparent to Dr. Henneberger and its ravages were observable in her disordered mentality; that on February 20, 1921, when she executed the Howland will, and when on about March 1, 1921, she destroyed the Langmade will, made a year before, and destroyed the Howland will, she was of unsound mind, suffering from delusions, and had not sufficient conception of the matters and events as they transpired to realize their gravity or probable consequence; that she was influenced by such delusions and by the influence and persuasions unduly exercised upon her by S. J. Craig which had the effect of substituting his will for hers. The commissioner finds that when she signed the stipulation for dismissal of the appeal in the divorce case she was not capable 'of sound reason or fair or rational deliberations, but was of weak and unsound mind; was suffering from paranoia, and that her action in signing it was caused by the persistent persuasions and importunities on the part of S. J. Craig, which, under the circumstances went beyond reasonable and legitimate solicitation.
The commissioner also finds that the will, of February, 1921, known as the Howland will, and the stipulation for reversal were neither of them signed nor executed by Sarah E. Craig during a lucid interval.
. We have carefully examined the testimony taken before the commissioner, the numerous letters, communications and instruments set forth in the record, and adopt the findings of the commissioner. So far as the findings, therefore, bear upon the motion to vacate, it follows that there is only one thing for the court to do, and that is, to set aside the order of reversal and dispose of the divorce case on its merits.
THE DIVORCE CASE.
The divorce case was heard before the Honorable Charles I. Sparks, called in from the adjoining district because the regular judge, Honorable C. A. P. Falconer, disqualified himself from sitting. Judge Sparks held generally that the allegations of Mrs. Craig’s petition charging extreme cruelty were true. The main ground for the appeal is that the- evidence was insufficient to sustain the charges because Mrs. Craig’s testimony was wholly uncorroborated. Some of the indignities and abuses charged were of a-nature that made it impossible to produce a corroborating witness. The course of the trial took a wide range and many witnesses testified. The appellant was a witness and the court heard his denial of the various charges. Besides, there were some circumstances in the evidence which tended to corroborate plaintiff’s testimony.
It must be assumed that the evidence was sufficient to convince the judgment and satisfy the conscience of the able district judge who presided at the trial. It is unnecessary to cite decisions that un’der these circumstances this court is bound by the findings of the trial court.' ”
There is a complaint that the court gave the plaintiff all the real property owned at the time of her marriage and also allowed her to retain all the cash and liberty bonds she had, “a considerable part of which was the savings of the joint efforts of the plaintiff and defendant.” There is nothing in the evidence to show that any part of this personal property was the joint earnings or savings of the husband and wife. There was some evidence tending to show that none of it was. In addition to the property appellant possessed at the time of the marriage, the court permitted him to retain his rights under a lease on Mrs. Craig’s farm which included his two-thirds interest in 420 acres of wheat, then growing on the land.
The judgment of divorce is affirmed.
THE WILL CASE.
The action was an appeal to the district court from the order of the probate court of Rawlins county admitting to probate the will of Sarah E. Morse (formerly Sarah E. Craig) and appointing W. S. Langmade, executor. The trial in this case was before Honorable Willard Simmons, regular judge of the district.
The petition alleged that the will to be probated was fraudulently and involuntarily destroyed between January 22, 1921, and April 17, 1921, the date of the death of Sarah E. Morse; and that the testatrix was throughout this period mentally incapable of revoking the will. Probate was opposed by Craig and he filed a motion to deny probate on the ground that the petition itself showed the will not subject to probate under our statute. He relies upon the provisions of the statute of wills (§§ 50, 53; Gen. Stat. 1915, §§ 11801, 11803) which provide for the establishment of the contents and the probate of a will duly executed and unrevoked at the time of the death of the testator and which has been lost, spoliated or destroyed subsequently to the death of such testator. He contends that it was necessary for the proponents of the will to show that it was duly executed, never revoked, and that it was lost or destroyed subsequent to the death of the testatrix and of course to establish substantially the contents of the will.
The appellee cites Schouler on Wills, 5th ed., § 385, to the effect that: No revocation can be good which is procured by fraud or palpable error, or where the testator was unduly influenced to commit the act; and it is clearly settled that the revocation of a will, while the testator is insane, is no less void than the making of a, will; because it requires the same capacity to revoke a will as to make one, and one cannot intend to destroy, in a legal sense, unless his mind acts rationally and to the point.
And see, Barnes v. Brownlee, 97 Kan. 517, 155 Pac. 962, where it was contended that a will made in Texas' was not effective because it was not in existence when the testatrix died. In the opinion it was said:
“The destruction of a will to which she did not consent, whether done accidentally or fraudulently, does not operate as a revocation of a will in the absence of a statute providing that to be the effect. A will may be established and proved that a testator during his last illness was fraudulently induced to' destroy, through fear or for any other cause unduly exercised so as to takeaway his free and voluntary mind and capacity to act. Batton et al. v. Watson, 13 Ga. 63.” (p. 520.)
Other cases cited by the appellees are to the effect that a will destroyed prior to the testator’s death does not affect the jurisdiction, of the court to admit it to probate when proved by copy, if it remained unrevoked. Thompson, Appellant, 114 Maine, 338, and see, also, Matter of Goldsticker, 192 N. Y. 35; 18 L. R. A., n. s., 99, and notes to the effect that one lacking testamentary capacity is not. competent by means of an attempted testamentary act to revoke a. prior will.
There was no error in permitting W. S. Langmade who drew the will and Dr. Henneberger who treated Mrs. Morse for physical ailments to testify in regard to statements made by her. It has been repeatedly held that a lawyer who drew the will is competent to testify both as to conversations between himself and the testator at the time and also to the mental condition of the testator. (Durant v. Whitcher, 97 Kan. 603, 156 Pac. 739, and cases cited in the opinion.)
The objection to the testimony of the physician is one that may be waived by the heirs in a contest with strangers to the estate,. (Fish v. Poorman, 85 Kan. 237, 116 Pac. 898; Bruington v. Wagoner, 100 Kan. 10, 164 Pac. 1057.) Even in a case between heirs at law, where some consent and others object to waiving the privilege, it has been intimated that in such a situation this court would probably hold “against any interpretation of rules of evidence which limits judicial inquiry in the ascertainment of truth.” (Bruington v. Wagoner, supra, p. 16.)
This disposes of the principal contentions of the appellant. More attentiqn would be paid to them were it not for the fact that by reason of the decision in the divorce case, he has no standing to raise objections to the probate of the will or, in fact, to prosecute this appeal.
The judgment in the will case is therefore affirmed. | [
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Per Curiam:
This appeal, in all its material aspects, is governed
by the opinion and decision in The State, ex rel., v. Paul, ante, p. 826, and the judgment herein is accordingly affirmed. | [
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The opinion of the court was delivered by
Buroh, J.:
The action was one to recover on a promissory note. The plaintiff was defeated, and appeals.
The defendant gave the Universal Talking Machine Company, of Rockford, Ill., an order for talking machines. The price was to be paid in installments.- The order provided that no installment should be due until the first machine was sold, and that if the machine designated as Model C was not sold within twelve months, the seller would repurchase, provided certain advertising plans had been carried out. Attached to the order was the note sued on, concerning which the order provided as follows:
“The note herewith is tendered in settlement of this order, and the company is authorized and directed to detach and date same when this order is approved and ready for shipment.”
The order was accepted on November 15, 1920, and the machines were duly shipped and received by the defendant. The action was commenced in May, 1921. The petition alleged the plaintiff purchased the note from the payee, for a valuable consideration, before maturity, was the owner and holder, and that the note was unpaid. A copy of the note was attached to the petition. The note was negotiable in form, and bore the following indorsement, duly signed by the payee: “Pay to the order of Third National Bank, Rockford, Ill.” The answer pleaded the conditions of the order to which the note had been attached, and inability to sell the machines after proper effort. 'The answer further pleaded the plaintiff was not the owner and holder of the note, did not acquire it for a valuable consideration before due, and that the action was prematurely brought. The answer did not plead that the plaintiff's title was defective, within the meaning of section 62 of the negotiable-instruments law (Gen. Stat. 1915, § 6582), and did not plead the plaintiff had notice of the infirmity in the instrument relied on, which must have been actual knowledge of the provisions of the order, or knowledge of such facts that taking the note amounted to bad faith. (Neg. Inst. Law, § 63; Gen. Stat. 1915, § 6583.) Prima jade, the plaintiff was a holder in due course (Neg. Inst. Law, § 66, Gen. Stat. 1915, § 6586), and the result was, the plaintiff was entitled to judgment, unless the defendant proved the plaintiff did not acquire the note for a valuable consideration, or did not acquire it before due. Nevertheless, the court required the plaintiff to “put on its case.”
The plaintiff offered the note in evidence, and' offered the deposition of its cashier that on November 30, 1920, the plaintiff accepted the note ¿s collateral security to a note of the talking machine company to the bank for $8,725, which was unpaid. The deposition continued as follows:
“Q. State, if you know, for what purpose L. L. Phillips gave this note to the Universal Talking Machine Company. A. The bank was under the impression that it was given in payment for phonographs.
“Q. Assuming that the said note was given in payment for a phonograph, do you know whether or not there was a contract between Mr. Phillips and the Universal Talking Machine Company covering the sale of the phonograph in question, or any other phonographs? A. I do not.
“Q. State whether or not you have seen such a contract. A. I have not.
“Q. State whether or not the bank has any understanding or agreement with the Universal Talking Machine Company concerning the contract or contracts between the Universal Talking Machine Company and the said L. L. Phillips. A. The bank has not.
“Q. Is there anything further you desire to say, Mr. Kjellgren, in regard to this transaction, that you have not heretofore testified? A. This note was taken in good faith for value as security for funds loaned to the Universal Talking Machine Company.”
The defendant on his side offered in evidence, over objection, the order, and a letter from the talking machine company to him dated December 18, 1920, in which the talking machine company discussed the subject of pushing sales, and said:
“We have made a notation on your note that no statements are to be sent to you. ...”
The court submitted the case to the jury under correct instructions, among which was the following:
“There is evidence before you in regard to the contract that was entered into between the defendant and the Universal Talking , Machine Company, and there is also before you a letter received by the defendant from this Universal Talking Machine Company. This evidence should not be considered by you unless you find as a matter of fact that the plaintiff had notice of some infirmity in this note, some claim on the part of the defendant in this case, that he did not owe the note prior to the time that the Third National Bank, that is, the plaintiff, came into possession of it.”
The jury found for the defendant. It will be remembered the defendant did not plead that the plaintiff had notice of any defect or infirmity in the paper. The plaintiff's cashier testified it had no such notice. Suppose he were disbelieved, and his testimony rejected; still there was no evidence the plaintiff had the required notice, when the plaintiff closed its case, and the defendant had no evidence at all on that subject.
Under the indorsement to the plaintiff was written the following:
“Pay to the order of Rockford Cabinet Co., without recourse.
The Thieij National Bank, Rockford, III.
“M. A. Kjellqren, Cashier.”
The defendant says the note itself disclosed the plaintiff was not the holder. The plaintiff had the note in court, which was proof it was the holder. The plaintiff was entitled to strike out the indorsement not necessary to its title. (Neg. Inst. Law, § 55, Gen. Stat. 1915, § 6575.) The petition pleaded ownership by indorsement from the talking machine company, and the formality of erasing the superfluous indorsement was not necessary. If the subject were presented to the district court, it was properly disposed of by ignoring it when the case was submitted to the jury.
The judgment of the district court is reversed, and the cause is remanded with direction to render judgment for the plaintiff. | [
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The opinion of the court was delivered by
MARSHALL, J.:
The plaintiff commenced this action to recover damages sustained in an automobile collision. The jury returned a verdict for the plaintiff, but on the answers to special questions submitted t,o the jury judgment was rendered in favor of the defendant. The plaintiff appeals.
The special questions and the answers thereto' are as follows:
"1. How wide was the traveled part of the public highway at the place of the collision? A. About 30 feet.
“2. Did defendant know prior to the time of the collision that such public highway was frequently traveled by automobiles going north and south? A. Yes.
“3. When defendant was entering the public highway from his private road if he had looked could he have seen the approach of the plaintiff’s automobile in time to have avoided the injury? A. Yes.
"4. Did defendant’s automobile strike the plaintiff’s car at a point nearly opposite the opening in the hedge? A. Yes.
"6. Do you find that plaintiff was guilty of contributory negligence? A. Yes.
“7. If you answer ‘Yes,’ state in what such negligence consisted? A. In not looking ahead.
“8. Was the defendant’s car turned to the north and east at the time the cars came together? A. Yes.
“9. Did the front end of the Broman car strike the front end of the Kim-ball car? A. No.
“10. How fast was the Kimball car being driven from the house out to the public highway? A. About 7 miles per hour.
“11. Do you find that the defendant was negligent? A. Yes.
“12. If you answer the last question ‘Yes’ then state of what such negli-' gence consisted? A. By not looking to the north and south before entering public highway.”
1. The plaintiff argues that judgment should not have been rendered in favor of the defendant on the answers, to the special questions. The findings showed that the plaintiff failed to look ahead and that the collision resulted. The plaintiff failed to exercise the diligence required of him while traveling in an automobile on the public highway. His negligence contributed to the injury, and prevented his recovery.
2. To avoid the effect of the findings of'the jury, the plaintiff argues that the act of contributory negligence found was riot pleaded. The answer alleged that—
“Said plaintiff . . . ran his said auto into the auto of said defendant. . . .
“That with the use of ordinaiy care and diligence upon the part of the driver of said plaintiff’s auto he could have avoided striking the auto of said defendant. . . .
“That there were no obstructions in the highway east of where the said defendant’s auto was standing at the time of said collision . . . and that the cause of said collision was on account of the carelessness and negligence of said plaintiff, his servants and agents, in heedlessly running said auto into the auto of said defendant.”
There was no motion to make the answer more definite and certain. Its allegations were broad enough to include the failure of the plaintiff to look ahead at and immediately prior to the time of the collision. The allegations were not specific; they were general, but included the act of contributory negligence found by the jury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to enforce a trust. A demurrer to the petition was sustained, and this is the ruling complained of. The doctrine declared in Stark v. Starrs, 6 Wall. 419, “that where one party has acquired the legal title to property to which another has a better right, a court of equity will convert him into a trustee of the true owner, and compel him to convey the legal title,” and approved by this court in Moody v. Arthur, 16 Kas. 428, is not questioned by either party; but the contention of counsel for defendant in error is, that the allegations of the petition do not bring the case within that rule.
The substance of plaintiff’s claim is, that he was a partner with one D. E. Smith, doing business in, and an occupant of, the town site of Great Bend, at the time the same was entered for the benefit of the .occupants; that the title to the lots belonging to them as occupants was conveyed to Smith alone, and by him to defendants, who purchased with knowledge of plaintiff’s, rights. The specific objections are, that the petition counts really upon a written contract between the Great Bend town company and the occupants of the town site, and seeks to base an express trust thereon; that there is no direct allegation that the town site was ever public lands, and entered for the benefit of the occupants; and that there is no averment that plaintiff was an occupant at the time of any such entry.
So far as the first objection is concerned, we do not agree with counsel in his view of the petition. The pleader is not counting upon the contract as the basis of an express trust, but alleges that as a fact showing in what manner the interests of the various occupants of the town site were ascertained and adjusted. The act of congress provides that the entry shall be made “in trust for the several use and benefit, of the occupants thereof,” and leaves the execution of the trust to the state. If, after the entry, all the parties in interest agree upon the apportionment, such agreement will be binding, although the apportionment is to be made in a manner and by agencies and officers different from those provided for in the state statutes. Indeed, the state statute seems a little blind or deficient as to what is the proper manner and machinery in case the entry is made by the corporate authorities. (Allen v. Houston, 21 Kas. 194.) This contract, made between the actual occupants and the town company, provided for the apportionment, as well as other matters, and the pleader states it and the result of the apportionment, so as to show the equity of the occupants, as well as the legal title to the specific lots.
This contract, which is made a part of the petition, is signed by defendant G. L. Brinkman, as well as by the firm of Smith & Winkfield; and construing the admissions and statements of this contract in connection with the averments of the petition, (Budd v. Kramer, 14 Kas. 101,) we think the other objections must also be overruled. We agree with the counsel for the defendant in error, that the petition lacks that which it ought to have — direct, definite and affirmative allegations in respect to the matters suggested in these objections; but the defect is rather a want of definiteness and precision, than a total failure respecting them, and is to be cured by motion rather than by demurrer. It alleges the partnership —a partnership existing before, after, and on the day which by the recitals in the contract was the day on which the entry was made, the ownership of the improvements on certain-named lots, and that by virtue of such ownership they became and were entitled to participate equally in the benefits of the contract heretofore mentioned, and the firm-name is signed to the contract. Of course, it will not be questioned but that if equitably they as occupants were jointly entitled to certain lots, and the legal title was conveyed to either without the knowledge or consent of the other, he held the legal title to the undivided half in trust for such other, and such trust could be enforced against him or any one taking the title from him with notice.
The judgment will be reversed, and the case remanded with instructions to overrule the demurrer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution for an alleged violation of the dramshop act. (Gen. Stat. 399.) That the defendant sold intoxicating liquors in the city of Ghanute, a city of the third class, is admitted; but, on the other hand, it is also admitted that he sold said liquors under a license issued by said city. The only question is, therefore, whether said license is valid, or not. That cities of the third class have power to issue licenses to sell intoxicating liquors, has already been settled affirmatively by the decisions of this court. (State v. Pittman, 10 Kas. 593, 597; Salina v. Seitz, 16 Kas. 143, 146, and cases there cited; State v. Young, 17 Kas. 414.) Therefore the only question now to be considered is, whether said license was issued properly and regularly, or not. It was issued to be in force from May 10, 1878, to August 1, 1878, and the sum paid therefor was $56.95. The prosecution claims that this license was and is void, (1) because it was not issued to be in force up to May 1, 1879; (2) because the amount paid therefor was not sufficient to keep the license in force up to May 1,1879; (3) because the amount paid therefor was not the 'amount required by the city ordinance for even one-fourth of a year.
The same statute which authorizes cities of the third class to issue licenses for taverns, dramshops, saloons and to liquor-sellers, also authorizes such cities to issue licenses for almost all other kinds of business carried on in cities, including that of 'auctioneers, and including some kinds of business which are seldom carried on continuously, but only for a few days-at a time. See §48 of the third-class city act, laws of 1872,. p. 234, § 2.
Section 49 of said act, laws of 1871, pp. 130,131, provides that “all license taxes shall be regulated by ordinance, and except for shows, theaters and other exhibitions, shall expire-on the first day of May next after the same are issued, and shall be at such rate per year as shall be just and reasonable. No license shall be issued until the amount prescribed therefor shall be paid to the city treasurer.”
The ordinance of the city, under which the present license was issued, provides that “for every license to a dramshop keeper there shall be levied a tax, payable quarterly in advance, of two hundred and fifty dollars for every period of twelve months.”
This court has already in effect decided that an auctioneer’s-license need not be continuously in force for a year, or until the first day of the next May succeeding its issuance, nor seven for a quarter of a year, but that it may be issued for a less time, the applicant paying therefor five dollars per day. (Fretwell v. Troy, 18 Kas. 271.) And this decision is equally as applicable to licenses issued to dramshop-keepers, as to licenses issued to auctioneers.
The license in the present case was not to run beyond “the first day of May next after it was issued; ” the amount charged therefor was at the “rate per year” of $250, which amount is presumptively “just and reasonable;” the amount was paid in advance; and all was paid that was due for the first quar ter. It will be noticed that ten days of the first quarter had already elapsed when this license was issued; and the defendant therefore paid for only the remaining portion of the quarter.
Cities of the third class have the power at any time in the year to issue licenses authorizing dramshop-keepers to sell intoxicating liquors up to the first day of May next after the licenses are issued, but such cities are not bound to exercise all of this power in any particular case. They may exercise all of it if they choose, or they may exercise only a portion thereof by issuing licenses for only a portion of the time. It is not the intention of the law to compel cities of the third class, when issuing licenses, to issue them for the whole period of time preceding the first day of .the next May thereafter, .but it is simply to prohibit such cities from issuing licenses to extend beyond that time. Good reasons may be given why a license should not be allowed' to run for any great period of time, but no good reason can be urged why cities should not be invested with a large amount of discretion in issuing licenses for short periods of time.
The judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by-
Horton, C.- J.:
It is claimed that the district court erred in refusing to sustain a demurrer to the evidence of the plaintiff in the court below. The argument is, that a demand is a prerequisite to the bringing of the action, and as the plaintiff rested his case without proving a demand, his cause of action was not made out. It appears from the record that after the demurrer was overruled, both parties proceeded with the trial; the defendant introduced further and additional evidence; and after'the arguments of counsel to the jury, plaintiff, with the consent of the court, proved the making of a demand for the property prior to the commencement of the action. As the court had the power in its discretion to receive the testimony of the demand, even after the arguments, the omission in the proof was supplied, and no error was committed prejudicial to the rights of the plaintiff in error in overruling the demurrer to the evidence.
It is further insisted that there was error in the proceedings in this: the affidavit on which was founded the order of delivery stated the value of the property at $240. The original petition also fixed the value at the same amount. Afterward, an amended petition was filed, which set forth the value at $375. The jury in their verdict assessed the value at $323, and judgment was rendered accordingly. Exceptions were taken to changing the value in the petition from $240 to $375, and a motion was made to reduce the value fixed by the jury to $240. The exceptions and motion were not sustained. There was no error in this. While the statute requires that the affidavit in replevin should show the actual value of the property, and, where several articles are claimed, the value of each as nearly as practicable, yet it is not necessary that the petition should correspond in this respect with the affidavit. The affidavit to obtain the order for the delivery of the property must contain certain prescribed facts duly sworn to, but they form no part of the issues in the case. In this case a team of mules, a wagon and a set of harness were claimed. The plaintiff was required to state the value of each in his affidavit, as nearly as practicable. The defendant had the right to retain the property in his possession upon executing, with one or more sufficient sureties, an undertaking to the plaintiff, in not less than double the amount of the value of the property as stated in the affidavit. The bond was given by defendant, and the property retained. The purpose of requiring the value of the property to be stated in the affidavit is for the protection of the plaintiff, and determines the amount of the undertaking without calling appraisers. The affidavit does not settle the value of the property, as a jury may increase or decrease such value iu their findings, not exceeding of course the sum claimed in the petition. . The affidavit filed by the plaintiff at the commencement of his action, of the value of the property sought to be recovered, would in the majority of cases,- if introduced in evidence by tlie opposing party, limit the assessment of the value to a sum not exceeding the amount placed by himself therein; but exceptional cases might arise where, upon the evidence, a different result would be had. Therefore, we cannot say that the petition must conform to the affidavit, nor can we say that the assessment of the jury of the value of the property must be within the sum stated in the affidavit. (Moser v. Jenkins, 5 Oregon, 447; Kerrigan v. Ray, 10 How. Pr. 213.)
The final allegation of error is, that the court erred in refusing to permit defendant in the court below to prove that at the time of the levy upon the property, it was covered-with a chattel mortgage; that there was then over-due to the mortgagee $78.50; that the sheriff made the levy upon the interest of the plaintiff, and sold the property subject to the mortgage. It was not claimed that the mortgagee had been paid by the sheriff, or that he asserted any demand against the officers or the purchaser. As the action was not between the mortgagor and mortgagee, and as the mortgagee was no party to such proceeding, the evidence sought to be introduced was irrelevant, and properly rejected. The property being exempt, was not subject to execution, and defendant could not, by a wrongful sale of the same, compel in this action a settlement of the mortgagee’s claim.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Seaman against Huffaker and wife and McMillan, to modify a certain judgment, and to have certain taxes paid by plaintiff declared to be a lien on certain real estate. It seems that on November 1, 1869, Huffaker and wife executed a mortgage to Zinn, Aldrich & Co. on lot 16, block 8, in the city of Council Grove, Kansas, to secure the payment of seven certain promissory notes; that on November 28, 1870, Zinn, Aldrich & Co. obtained a judgment on these notes and mortgage against Huffaker and wife for $2,875.08 and costs, and for a sale of the mortgaged property. Afterward, the plaintiff Seaman became the owner of said judgment, and of all the rights of Zinn, Aldrich & Co. connected therewith. Afterward, the plaintiff ascertained that the only interest whicb Huffaker and wife ever had in said mortgaged property was as follows: The legal title to the south. 110 feet of said lot was, at the time said mortgage was given, and afterward, in “James W. McMillan and Thomas S. Huffaker, partners under the firm-name of J. W. McMillan & Co.,” and neither Huffaker and wife nor McMillan ever had any interest in the other portion of said lot. Huffaker was in the possession of the said south 110 feet of said lot, and was the equitable owner of the whole of said 110 feet. After the plaintiff became the owner of said judgment, he paid taxes on said 110 feet amounting to $2,269.96. The object of this action was to have said judgment so modified as to make it a lien upon only said 110 feet, and also to have said taxes declared to be a lien on said 110 feet, and to have it, and it only, sold to satisfy said judgment and costs, and to pay said taxes.
The case was tried in the court below by the court without a jury, and the court made the following findings of fact and conclusions of law, to wit:
1. That on the 28th day of November, 1870, in the district court of Morris county, Kansas, the firm of Zinn, Aldrich & Co. (mentioned in plaintiff’s petition) duly obtained a judgment against the defendant, T. S. Huffaker, for the sum of $2,875.08, with $10.30 costs, with interest at the rate of 10 per cent, per annum till paid, and also the foreclosure of a mortgage given by the defendants, T. S. and Eliza Huffaker, to secure the payment of the notes upon which said judgment was rendered upon the following real estate in Morris county, Kansas, to wit: Lot No. 16, in block No. 8, in Council Grove.
2. That on the 3d day of February, 1871, the said firm of Zinn, Aldrich & Co. were duly adjudged bankrupts by the district court of the United States for the'southern district of New York; that during the pendency of said bankruptcy proceedings, one John H. Wyman was duly appointed trustee of said bankrupts, and immediately qualified and entered upon the discharge of the duties of this trustee as required by law.
3. That said bankrupts, Zinn, Aldrich & Co., did, on the 3d day of February, 1871, duly assign and transfer to said trustee all their estate and effects, including the judgment aforesaid.
4. That on the 21st day of April, 1873, the said John H. Wyman, as such trustee, did, for a valuable consideration, duly sell and assign said judgment to the plaintiff in this action.
5. That said plaintiff has ever since said 21st day of April, 1873, been and still is the owner and holder of the judgment.
6. That oq the 18th clay of November, 1871, there was paid by the defendant, T. S. Huffaker, to apply on said judgment, the sum of $600.
7. That between the 6th day of February, 1871, and the 29th day of June, 1874, eight several orders of sale were duly issued upon said judgment and placed in the hands of the sheriff of said Morris county, and each and all of them by him duly returned unsatisfied for want of bidders.
8. That the accruing costs, by reason of said orders of •sale, amount to the sum of $166.65.
9. That the defendants T. S. and Eliza Huffaker permitted 110 feet off of the south end of said lot No. 16 to be sold for delinquent taxes on the 2d day of May, 1871, for the sum of $272.35; that the purchaser at said tax sale paid the taxes •on said 110 feet for the years 1871,1872 and 1873; that said 110 feet was a part of the premises upon which the said judgment of Zinn, Aldrich & Co. was adjudged to be a lien, and the only portion of said lot, 16, block 8, that either said Huffaker or said McMillan ever owned or ever had any interest in, was said 110 feet off of the south end of said lot 16.
10. That on the 7th day of April, 1874, this plaintiff, to protect his lien on said premises, and in order to prevent the same from going to tax deed, redeemed said premises from said sale by paying the county treasurer of said Morris county the sum of $2,269.96 that amount being necessary to redeem from said -sale; that during the year 1868, and until sometime in the month of September, 1869, the defendants, T. S. Huffaker and J. W. McMillan, were partners, doing business under the firm-name of J. W. McMillan & Co., engaged in the general mercantile business in Council Grove, Morris •county, Kansas.
11. That sometime in the month of September, 1869, the said defendant, T. S. Huffaker, purchased the entire interest of J. W. McMillan in the property of said partnership, which consisted in a large amount of dry goods, groceries and general merchandise, and also the premises aforesaid, to wit, 110 feet off of the south end of lot No. 16; that said McMillan’s interest was an equal undivided half of all of said property.
12. That the conditions of said sale were, substantially, that the said Huffaker was to assume and pay all the debts and liabilities of the firm of J. W. McMillan & Co., including the •debts and liabilities of J. Spencer & Co., of whom the firm of J. ~W. McMillan & Co. were the successors in business, and to further pay the said McMillan the sum of $1,500.
13. That at the time of the purchase of McMillan’s interest in said partnership property by said Huffaker, all the goods, wares and merchandise were turned over to said Huffaker, including the south 110 feet of said lot No. 16, who has ever since remained in the actual possession of and exercised entire and exclusive control'over said premises, and has not at any time since accounted to McMillan for any rents, nor has McMillan paid any taxes on said premises, or demanded the payment of any rent, nor has he exercised any acts of ownership or control over said premises since the time of said sale.
14. That the consideration for the notes and the mortgage given to secure their payment and upon which the said judgment of Zinn, Aldrich & Co. was obtained against the defendants, T. S. Huffaker and Eliza Huffaker, was for goods, wares and merchandise purchased of said Zinn, Aldrich & Co., by the said firms of J. Spencer & Co. and J. W. McMillan & Co., before the dissolution of said partnerships, and was a part of the debts and liabilities which the said Huffaker agreed to assume and pay.
15. That at the time of the purchase by Huffaker of the interest of McMillan in the partnership property, the said firm of J. W. McMillan & Co. had and were seized of a clear and connected title in fee simple from the United States to the south 110 feet of lot No. 16, block 8 aforesaid, and that said title appeared of record in the office of register of deeds of said Morris county at the time of the execution of the mortgage in question.
16. That the said Huffaker has never paid or caused to be paid all the debts and liabilities of said firms of J. Spencer & Co. and J. W. McMillan & Co., nor has he paid or caused to be paid all of the said sum of $1,500 to the said J. W. McMillan.
17. That the said J. W. McMillan has never executed to said T. S. Huffaker any conveyance in writing of his interest in said south 110 feet of said lot No. 16.
18. That the agreement between said T. S. Huffaker and said J. W. McMillan, for the purchase and sale of McMillan’s interest in said partnership property of J. W. McMillan & Co., was in writing.
19. That said T. S. Huffaker never at any time owned any interest in said lot No. 16, save and except that part described as being the south 11Ü feet of said lot; that at the time of the execution of the mortgage in question, the said T. S. Huffaker was the owner of one equal undivided half of said south 110 feet of said lot No. 16, block 8, and the said J.W. McMillan was at that time and still is the owner of the other undivided one-half.
20. That there is now remaining due and unpaid on said judgment of Zinn, Aldrich & Co., including interest and costs, the sum of $4,069.03.
21. That there is now due said plaintiff for money paid for the purpose of redeeming the premises in controversy from tax sale, including interest at seven per cent, per annum, the sum of $2,701.34, making a total sum of $6,770.37.
Conclusions of law based upon the foregoing facts:
First: That the plaintiff is entitled to a decree so modifying the judgment and decree obtained in the district court of Morris county, Kansas, on the 28th day of November, 1870, in favor of Zinn, Aldrich & Co., and against T. S. and Eliza Huffaker, as to make such judgment and decree a lien on one equal undivided half of the south 110 feet of lot 16, in block No. 8, instead of on the whole of said lot as it now stands.
Second: That the defendant, J. W. McMillan, is entitled to a judgment and decree declaring him to be the owner of the equal undivided one-half of the south 110 feet of lot No. 16, in block 8, in Council Grove, Morris county, Kansas, and for his costs herein.
The court below rendered judgment in accordance with the foregoing conclusions of law; that is to say, the court modified the former judgment by decreeing that it should be a lien upon only the undivided half of the south 110 feet of said lot 16, instead of upon the whole of the lot, as the judgment was formerly rendered; and the court rendered judgment in favor of McMillan and against the other parties for the other undivided half of said 110 feet of said lot, and for costs; and the court did not render any judgment concerning said $2,269.96 taxes paid by the plaintiff, but left the plaintiff to lose the same, one-half for the benefit of Huffaker, and the other half for the benefit of McMillan.
The foregoing findings of fact are in some respects more favorable to McMillan than the evidence would warrant; more favorable than McMillan, from' his own testimony, would seem to claim; more favorable, we suppose, than Huf faker would desire; aud certainly more favorable than the plaintiff would desire. McMillan’s defense in the court below was made by the same attorneys who defended for Huffaker. Probably Huffaker, now, as well as the plaintiff, would wish to have that part of the judgment of the court court below which awards to McMillan an undivided half of said 110 feet of said lot, reversed, and perhaps McMillan, from his own testimony, does not care. Neither McMillan nor Huffaker has had any brief filed or oral argument made in this court; hence, we cannot tell just what either of them would desire at the present time.
From the evidence it appears that Huffaker not only took exclusive possession of said south 110 feet of said lot 16, after he purchased the interest of McMillan therein, but he also expended a large sum of money in completing the building thereon, which was only partially completed when he purchased the same. McMillan had notice of the mortgage soon after it was executed (if not at the time or before), and recognized it as a valid mortgage on the whole of said 110 feet of said lot, and offered by letter to purchase the mortgaged premises from Zinn, Aldrich & Co. while they still held the mortgage, and before the present plaintiff, Seaman, had any interest therein, and while McMillan (as well as Huffaker, his partner,) was still liable for the debt for which the mortgage was given. McMillan, however, may still be liable for the debt; for no one can tell from the evidence, or from the findings, whether the debt as to McMillan is yet barred by the statute of limitations or not. The evidence shows that McMillan was absent from the state, but whether all the time or not, or how much of the time, the evidence does not show. It is not certain from the evidence whether Huffaker paid McMillan all he owed him, or all he agreed to pay him, or not. If anything is yet due, however, from Huffaker to McMillan, it is probably only a very small amount. The court below found, in its sixteenth finding, that Huffaker had not paid all that was due from Huffaker to McMillan. But how much of the same still remains unpaid, the court did not find. All of the latter portion of the nineteenth finding of the court below is merely a conclusion from the other facts found by the court, and it depends for its correctness solely upon the question whether the other facts as a matter of law would give to McMillan the present title to an undivided half-interest in said 110 feet of said lot, absolutely and unconditionally, as against the present plaintiff, Seaman. Huffaker, however, has no right to complain of the finding, as it was probably made at his instance, though probably Huffaker did not want such a judgment rendered upon it as was actually rendered thereon. Huffaker probably wanted to defeat the plaintiff, but did not want McMillan to reap the benefit of the plaintiff’s defeat; that is, he wanted to prevent the plaintiff from selling that portion of the lot which he claimed that McMillan owned; but he did not want the court to render a judgment against him (Huffaker), as well as against the plaintiff, decreeing that McMillan did own it, and giving it to McMillan.
But taking the findings of fact just as they are, and still we think that the court below erred in its conclusions of'law, and in the judgment it rendered thereon.
The findings of fact show that Huffaker and McMillan were partners; that as partners, they owned said real estate upon which said mortgage was afterward given, as well as certain personal property; that as partners, they owed said debt to Zinn, Aldrich & Co., for which the mortgage was given; that McMillan, by a written contract, sold all of his interest in said real estate, as well as in said personal property, to Huffaker, before said mortgage was given; that Huffaker took immediate, actual and exclusive possession of the whole of the property; that McMillan wholly abandoned the same; that Huffaker, soon after his purchase, mortgaged the property to Zinn, Aldrich & Co., to secure the payment of said partnership debt; that McMillan never made any objection thereto; that McMillan was liable for the debt at the time said mortgage was given, and perhaps he may still be liable therefor; that Huffaker took all the partnership prop erty, and was to pay all the partnership debts; that although Huffaker was to pay McMillan $1,500 for his partnership interest, yet the findings do not state or show that there was any agreement or understanding between the parties that Huffaker should forfeit his interest in the partnership property sold to him under any circumstances whatever, or that McMillan should have any lien thereon under any circumstances whatever; that although Huffaker may have failed to pay some portion of that debt and of the partnership debts, yet what amount of either is yet due is not shown. So far as the findings show, the debt to Zinn, Aldrich & Co. may be the only one of the partnership debts yet remaining unpaid, and the individual debt to McMillan may have all been paid except a few cents. The plaintiff Seaman was compelled to pay said taxes in order to preserve his lien on said real estate.
From the foregoing findings, we think it follows that at the time said mortgage was given Pluffaker was the equitable owner of the whole of the said 110 feet of said lot; that he had the legal title to one undivided half thereof, and that McMillan had the legal title to the other undivided half; or, in other and perhaps more appropriate words, Huffaker was the real owner of the whole of the property, and Huffaker and McMillan simply held the legal title thereto conjointly, in trust for the use and benefit of Huffaker.
We suppose it will not be questioned that the equitable owner of real estate has the right to mortgage the same. (Jones v. Lapham, 15 Kas. 540, 544; Curtis v. Buckley, 14 Kas. 449.) And generally, he will not forfeit his equitable estate, unless it is equitable that he should forfeit it, or unless he has done or failed to do some act for which it was agreed or understood that he should forfeit the same. (Courtney v. Woodworth, 9 Kas. 443; Holcomb v. Dowell, 15 Kas. 378.) Also, partnership debts have priority as against partnership property over individual debts; and this real estate was presumptively placed in the hands of Huffaker for the purpose of paying the partnership debts; and he undoubtedly had the right to use it for that purpose. Wilson v. Hunter, 14 Wis. 683; Mabbett v. White, 12 N. Y. 443, 454; Whitton v. Smith, Freeman Ch. (Miss.) 231. As the plaintiff was compelled to pay said taxes, to preserve his mortgage lien, he may now have judgment against the land therefor. (Stanclift v. Norton, 11 Kas. 218; Sharp v. Barker, 11 Kas. 381; Waterson v. Devoe, 18 Kas. 223; Opdyke v. Crawford, 19 Kas. 604.) And upon the theory that the property was in controversy, that McMillan really claimed to own the undivided half thereof, and supposing that McMillan was entitled to recover such undivided half as was held in' the court below, still the plaintiff should recover for the taxes he paid and have them declared a lien upon the said real estate. (Gen. Stat. 1062, §136; Laws of 1876, page 97, § 149.)
The judgment of the court' below will be reversed, and cause remanded with the order that judgment be rendered in favor of the plaintiff and against the defendants, in accordance with this opinion.
Horton, O. J., concurring.
Brewer, J., not sitting. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action; brought by James Conway as plaintiff, against Hayden.W. Fisher, and others, as defendants, in the district court of Morris county, to recover damages for an alleged trespass by said Fisher, and others, plaintiffs in error, upon the premises of said Conway, defendant in error. The only cause of action set forth in Conway’s petition, is:
“That defendants threw down and opened plaintiff’s fence and entered plaintiff’s close, situate upon the west half of the northwest quarter of section twelve, in township fifteen, range eight, in Morris county, and there threshed and carried away a large quantity of the plaintiff’s grain, consisting of wheat and oats, to wit, eight hundred bushels, and of the value of one thousand dollars, and converted and disposed of the same to their use, to the damage of plaintiff, $2,000.”
The plaintiffs in error denied each and every allegation in said Conway’s petition, and the case was tried before a jury, at the April Term, 1877, of the Morris county district court. The jury found for the plaintiff below, Conway, and assessed his damages at $140. The defendants below moved for a new trial. The court remitted $40 of the damages, reducing the amount of damages recovered'to $100, and overruled the motion for a new trial, to which ruling defendants below excepted. Judgment was rendered by the district court in favor of Conway and against Fisher, and others, for $100- damages and the costs of the action, and defendants below, as plaintiffs in error, bring the case to this court.
The plaintiffs in error allege that the district court erred on the trial of said action in admitting certain testimony in behalf of James Conway over the objections of plaintiffs in error.
It appears that Conway and Fisher were claimants of the same tract of land, and each seeking to hold possession; and out of this dispute grew the trespass complained of. The ground was plowed by one, and sowed by the other; the grain was cut by one, and stacked by the other; and finally, one day, in the absence of Conway, Fisher and his friends entered, and threshed and carried away the grain. Mrs. Conway attempted to prevent this action on the part of defendants, and, according to her testimony, was assaulted and severely bruised. Testimony was admitted to show the character and extent of her injuries, and the length of time she was laid up in consequence thereof This was objected to, and in this is the first alleged error. And we think the allegation of error must be sustained. The petition in no manner counted on personal injuries. There was no claim for damages for loss of his wife’s services. There was, as shown above, simply a charge of trespass in entering plaintiff’s premises, threshing and carrying away grain. Now, while all the circumstances of such trespass and whatever was done in its actual accomplishment might properly be narrated before the jury as a part of the res gestee, although it involved the commission of an assault and battery, yet no after-matters resulting from the assault and battery were proper; They were not a part of the trespass. The assault and battery was the subject of an independent action, and in that action the extent of the injuries would be proper subjects for inquiry. But in the matter at bar, whether Mrs. Conway was more or less injured, whether she was laid up for one day or one year, in no manner affected the trespass complained of, or added to the value of the grain carried away. It simply served to prejudice the jury against the defendants. There was error therefore in its admission. And, indeed, though the circumstances and manner of the trespass were proper matters of testimony, the court should have instructed the jury that no claim was made on account of personal injuries or for loss of service.’
A second alleged error is in permitting Mrs. Conway to testify on behalf of her husband. The testimony she gave was of the coming of the defendants upon the premises, and her efforts to prevent them from committing the trespass, and their violence to her in resisting such efforts. All this took place during the absence of her husband from the premises. It amounted simply to this: she testified as to her efforts in his absence to protect his property. Was she competent therefor? Chap. 165, laws 1872, declares that, “The following persons shall be incompetent to testify: . . . Third, Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other.” There was no evidence of any express contract between Conway and his wife, or of any direction from him to her in respect to the care of this property during his absence. The agency, if one existed, was one to be implied from the circumstances. Now it may be conceded that the mere fact of the absence of the husband from home does not constitute his wife his agent so far as to make her a competent witness as to everything transpiring during his absence; and to that effect is the case of Bates, et al., v. Cilley, 47 Yt. 1, in which plaintiffs brought action to recover damages for the bite of a dog, and in which defendant sought to show by his wife what marks of a bite were visible upon the person of Mrs. Bates immediately after the alleged biting, the same having taken place during his absence from home. On the other hand, in Butts v. Newton, 29 Wis. 639, it appeared that immediately after the absconding of the husband the wife sold certain property belonging to him, and it was held that she was not his agent generally for the purpose of sale, though it was remarked by the court that under those circumstances she would doubtless be his agent to sell so far as was necessary for the maintenance of herself and family. And in O’Conner v. H. F. Ins. Co., 31 Wis. 167, where it appeared that the husband was making a lengthy absence from home, during which his home was destroyed by fire, and she as his agent furnished proofs of loss, it was held that she was a competent witness thereto, and that without any express authority to act as his agent. The ruling of the district court was within the spirit of these decisions, and was correct. And we think it may be stated as a general proposition, that whenever in the absence of the husband from his home the wife acts in protection of property claimed by the husband and within the circle of-the home, although without any express direction, she is acting as his 'agent, and will be a competent witness as to what she does and resists. In his absence she represents him, as his agent, so far as the preservation and protection of the home and its appurtenances are concerned.
Again, it is claimed that the court erred in limiting the number of witnesses on the part of the defense. After four witnesses had testified on the part of the defense to the circumstances of the entry upon the premises, the difficulty with Mrs. Conway, and the threshing, the court refused to permit any further witnesses upon these matters. In this, we .think the court erred. It is doubtless true as to any collateral matter, as the impeachment of a witness, that the court may restrict the number of witnesses, and unless it appears that there had been an abuse of discretion in that respect, no error will lie. (Anthony v. Smith, 4 Bos. 503.) Perhaps,, also; the court may have to some extent a like power, even where the testimony runs to the matter principally and directly in dispute; though see upon this, Hubble v. Osborn, 31 Ind. 249; White v. Hermann, 51 Ill. 243. But still it may not prevent any defendant against whom a recovery is sought r, t • i i ,, . , irom being heard upon the witness stand as to ° L what he knows of the matters charged against him. Here, the plaintiff sued eleven parties for an alleged trespass. They denied the trespass. That was a denial good for each of them, and each one had a right to tell the jury what he saw and knew of the transaction. The rights of no one defendant were greater than those of any other; and the court could not compel them to select which of their number should be witnesses and which should not, or, as appears to have been done, after some had testified, forbid the rest-from the witness stand.
Another matter of alleged error is in the ruling of the court in reference to impeaching testimony. It excluded all testimony of knowledge of plaintiff’s reputation for truth and veracity based upon rumors and reports since the commencement of the action. In other words,-the court-made this inquiry, “What was the plaintiff’s reputation for truth and veracity before the commencement of this action?” and not, “What is his reputation to-day, when he is testifying?” In this was error. Impeaching testimony is for the purpose of discrediting the witness, by showing that the community in which he lives do not believe what he says; that he is such a notorious liar that he is generally disbelieved. It is his present credibility that is to be attacked; is he now to be believed? What do his neighbors think and say of him at the present time? not, What did they think and say months or years ago? True, general reputation is not established in a day; and so the inquiry is not to be restricted to any particular week, or month, or year. The reputation a man has in any community is based upon all the years, few or many, of his living in such community. He may not have entered the community until after the commencement of the action, and still have established a repútation for truth and veracity, or the reverse; for oft-times a case is not tried until years after its commencement. This very case was commenced in June, 1876, and the new trial which we direct will not take place until two and a half years have passed since its commencement. Surely, a man’s reputation may have changed very much in that length of time. If it were bad, he may have reformed; if it were good, he may have become a moral wreck. (Mask v. The State, 36 Miss. 77.) It is true that when it appears that the impeaching witness ■bases his testimony upon reports circulated by the enemies of the one whose credibility is attacked, or parties interested in breaking down his testimony, or springing solely out of the prior steps in the controversy, such impeaching testimony carries, as it ought, little weight with a jury; but the weight of testimony is for the jury to determine, the competency alone for the court.
These are the only matters we deem it necessary to notice. No exceptions were taken to the instructions, and if the parties were satisfied with them, it is enough.
For the errors noticed the judgment must be reversed, and the case remanded, with instructions to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action by the defendant in error to recover of J. R. Horner, treasurer of Morris county, and the sureties on his official bond, moneys alleged to have been received by him in redemption of certain tax-sale certificates belonging to Haxton. We shall consider but a single question, as upon that, we think, a reversal must be ordered; and that arises upon the admission of the deposition of A. B. Spencer. Mr. Spencer, after stating that he was deputy treasurer of Morris county, and as such had access to the books, etc., of the office, stated:
“I find by reference to the books (of the treasurer), that tax certificate numbered 599, on the southeast quarter of ■southwest quarter of section 10, township 15, range-8, was redeemed on the 29th day of April, 1874, by L. C. Campbell, the owner thereof, paying into the county treasury the sum ■of $92.17.”
This portion of the testimony was duly objected to, but the •objection was overruled, and the testimony admitted.
The statute requires the county treasurer to keep a record •of tax sales and redemptions, (Gen. Stat., p. 1049, § 94,) and a certified copy of that record would be evidence of the facts therein stated. (Gen. Stat., p. 700, § 372.) But mere oral testimony that certain facts are shown by s'uch record, whether given by the officer in charge of the records or any other party, is not the best evidence of which the case is in its nature susceptible, and therefore not competent. (1 Greenl. Ev., § 82; Bemis v. Becker, 1 Kas. 226; Cooper v. Armstrong, 4 Kas. 30; City of Leavenworth v. Laing, 6 Kas. 274; Manley v. City of Atchison, 9 Kas. 358.)
Counsel for defendant in error, not insisting that this was ■competent testimony, say that if this testimony had been ex■cluded the verdict must have been the same, and therefore the error was immaterial. If the record fully sustained counsel in their statement, the conclusion would be correct; but we are constrained to differ with them in their view of the •other testimony. There are three items of testimony which :are referred to as showing a redemption during the term of .the treasurer whose official bond is sued on.
First — The plaintiff, Mr. Haxton, testified:
“I have never received the money, or any part of it, paid into the county treasury on redemption of lands described in the certificates in suit in this case. The certificates to which I refer are of the tax sales of 1871, and are respectively numbered 599, 623 and 692.”
This was objected to as incompetent evidence of the fact of redemption, and its admission is here assigned for error; in reference to which counsel for defendant in error well say: “As to the second objection, in saying, ‘I have never received the money or any part of it/ paid into the county treasury on redemption of land described in the certificates in suit in this case, the witness would not be understood as intending to affirm that the land described in the certificates had been redeemed, and money paid into the county treasury, but only that he had not received the money — i.e., the redemption money on the certificates. Brit if it is construed to be an affirmation of the fact that the land had been redeemed, and the redemption money paid into the treasury, it was a fact that Mr. Haxton had a right to state, if he knew it. The manner in which he derived his knowledge of the fact does-not transpire, and presumptively he possessed a competent knowledge.” .We cannot say that the jury did not understand this testimony in the manner first above indicated by counsel; and even if they viewed it as affirming the fact of redemption, it does not show,when the redemption took place — whether during the term of the treasurer sued, or that of his successor.
Second — The demand upon the county treasurer, and refusal to pay. The demand was upon Horner’s successor, and this is the testimony concerning the same: “I got these certificates from L. P. Rude, on the order of W. E. Haxton. J. R. Horner ceased to be county treasurer in August, 1874. At the time I got these three tax certificates from L. P. Rude, county treasurer, I demanded of him, for W. E. Haxton, the redemption money due on them, which he refused to pay,- for the reason that the redemptions were made while J. R. Horner was in office, and the money was never paid over to him.” Does this show that redemptions were made during Horner’s term? Clearly not. The reason stated is the reason given by Rude for not paying the money, but Horner is not bound by any such statement. It is no evidence against him or his sureties of the fact that he received the money. His own admission or statement binds him, but not the statement or excuse of some subsequent officer.
Third — The sale certificates themselves. On each appears an indorsement, “Redeemed,” followed by a date and an amount. This was showft to be in the handwriting of the •deputy of Eude, the treasurer who succeeded Horner. Now, if the statute provided for any such indorsement, it might be prima facie evidence of the fact stated. Where there is a partial' redemption, the law authorizes an indorsement of that fact. (Gen. Stat., p. 1052, sec. 103.) But that is the only provision that we are aware of in the matter; so that the indorsement is no more than the private ánd voluntary statement of the deputy of Horner’s successor in office. It is not official, and does not bind Horner or his sureties. It would not seem to have been made until after Horner had •ceased to be treasurer, for upon two of the sale certificates .appear indorsements of receipt of taxes by Mr. Eude, made long after the date of the alleged redemption. We think, therefore, that it cannot be said that the verdict must have been the same if this incompetent testimony had been rejected; and so the error cannot be said to have been immaterial.
The judgment will be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring. | [
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Per Curiam:
The above case is affirmed, upon the authority of American Bridge Co. v. Murphy, 13 Kas. 35, and K. P. Rly. Co. v. Kunhel, 17 Kas. 145. | [
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Marquardt, J;i
A.W.B- and K.Y.B., the' natural parents of L.D.B., C.C.B., and V.J.B., appeal from the district court’s termination of their parental rights, arguing that K.S.A- 38-1585 unconstitutionally shifts the burden of proof to parents to prove their fitness and that there was not substantial competent evidence to support the termination of their parental rights.
On July 11, 1990, the State filed a petition alleging that L.D.B., C.C.B., and V.J.B. were children in need of care. V.J.B. was placed in protective custody on July 9, 1990. The petition alleged that A.W.B. had physically, abused V.J.B. The district court placed the children in die protective custody of the State Secretary of Social and Rehabilitation.Services (SRS).
During a hearing on August 2, 1990, the parents stipulated to the facts alleged in the petition as amended. The district court ruled that each child was a child in need of care and ordered that the children remain in the temporary custody of SRS. The district court held numerous review hearings between September 24, 1990, and September 16, 1993.
On September 17, 1993; SR'S filed a motion to terminate the parental rights of A.W.B. and K.Y.B. as to L.D.B., C.C.B., and V.J.B. The motion relied solely on the presumption of unfitness that attaches ünder K.S.A. 38-1585.
At the November 23, 1993, termination hearing, the district court took judicial notice of two; prior parental termination cases in which A.W.B. and K.Y.B. were found to be unfit parents. The district court applied K.S.A. 38-1585 and held that A.W.B. and K:Y.B. had failed to produce cléar and convincing evidence to rebut the presumption of unfitness created by the prior terminations of their, parental rights and, therefore, terminated their parental rights as to L.D.B., C.C.B., and V.J.B.
A.W.B. and K.Y.B. appealed. This court reversed on the grounds that the district court had improperly required A.W.B. and K.Y.B. to meet the clear and convincing evidence standard of proof. In In re L.D.B., 20 Kan. App. 2d 643, 646-47, 891 P.2d 468 (1995), the court held that the preponderance of the evidence standard must be used when evaluating whether the parents have rebutted the presumption of unfitness created by K.S.A. 38-1585.
On remand, the district court applied the preponderance of the evidence standard and found that neither parent had rebutted the presumption of unfitness, terminating the parental rights of A.W.B. and K.Y.B.
A.W.B. and K.Y.B. argue that K.S.A. 38-1585 is unconstitutional because it shifts the burden of proof to the parent to prove his or her fitness.
“[A] statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.” Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992); see Sedlak v. Dick, 256 Kan. 779, 793, 887 P.2d 1119 (1995).
K.S.A. 38-1585 provides in relevant part:
“(a) It is presumed in the manner provided in K.S.A. 60-414 and amendments thereto that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes by clear and convincing evidence that:
(1) A parent has previously been found to be an unfit parent in proceedings under K.S.A. 38-1581 et seq. and amendments thereto, or comparable proceedings under the laws of another state, or the federal government;
(3) on two or more prior occasions a child in the physical custody of the parent has been adjudicated a child in need of care as defined by subsection (a)(3) of K.S.A. 38-1502 and amendments thereto.
“(b) The burden of proof is on the parent to rebut the presumption. In the absence of proof that the parent is presently fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, the court shall now terminate the [parent’s] parental rights in proceedings pursuant to K.S.A. 38-1581 et seq. and amendments thereto.”
This court has addressed the constitutionality of K.S.A. 38-1585 in two prior published cases.
In L.D.B., 20 Kan. App. 2d at 645-46, the court applied the standard from Mobile, J. & K.C.R.R. v. Turnipseed, 219 U.S. 35, 43, 55 L. Ed. 78, 31 S. Ct. 136 (1910), stating that “[b]ecause a prior determination of unfitness essentially requires a finding that the parent will continue to be unfit into the foreseeable future, such a prior determination is rationally connected to a parent’s current fitness.” This court found that inferring a parent’s current unfitness from a past finding of unfitness does not appear to be so unreasonable as to be purely arbitrary. L.D.B., 20 Kan. App. 2d at 646; see Turnipseed, 219 U.S. at 43.
A divided panel of this court held that K.S.A. 38-1585 was constitutional as long as it was applied in proper coordination with K.S.A. 60-414. In In re J.L., 20 Kan. App. 2d 665, 681, 891 P.2d 1125, rev. denied 257 Kan. 1092 (1995), the court, reading the two statutes together, held:
“[I]n order for the presumption raised by K.S.A.-1994 Supp. 38-1585 to be applied in a constitutional fashion, the trial court must first determine whether it is a subsection (a) or subsection (b) presumption. If it is determined to be a subsection (b) presumption, antj evidence which would support a finding of fitness, including the uncorroborated testimony of a parent, will result in the disappearance of the presumption, and the burden of proving unfitness will once again be upon the State. If it is determined by the trial court to be a subsection (a) presumption, it will operate in the fashion described in the statute.”
K.Y.B. criticizes the J.L. decision but does not provide any authority or clear argument that this court should decide the due process issue any differently. K.Y.B. does note that the legislature did not change the language in K.S.A. 1995 Supp. 38-1583(a), which requires clear and convincing evidence that the parent is unfit by reason of conduct or condition that is unlikely to change in the foreseeable future before the court can terminate a parent’s rights. K.Y.B. argues that because K.S.A. 1995 Supp. 38-1583(a) was not changed, there is still a legislatively and constitutionally recognized presumption that a parent is fit until the State overcomes this presumption by presenting clear and convincing evidence that die parent is unfit. This case is governed by the more specific statute K.S.A. 38-1585. See State v. Reed, 254 Kan. 52, 54, 865 P.2d 191 (1993) (noting that “when there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless the legislature intended to make the general act controlling”).
Both A.W.B. and K.Y.B. argue in direct conflict to this court’s holding in L.D.B., contending that the reliance on a past judicial finding of unfitness makes the application of K.S.A. 38-1585 arbitrary and capricious.
Absent an en banc review, this court does not have the authority to overrule a prior panel of this court. In re Marriage of Cray, 254 Kan. 376, 382, 867 P.2d 291 (1994).
Here, the district court asked counsel for their positions on whether the presumption of unfitness in this case should be a subsection (a) or a subsection (b) presumption. After hearing argument, the district court applied the factors suggested in J.L. and ruled that the prior terminations established a subsection (a) presumption.
A.W.B. argues that the proper application of J.L. would lead to a reversal of the district court due to the lapse of time between the prior findings of unfitness and the current termination. The district court distinguished J.L. from the instant action in that in J.L. there apparently was no contact between the parents and the State between a termination in 1986 and a subsequent termination in 1994 that was based on the presumption.
The district court stated in its May 31, 1995, journal entry:
“[T]he [court] finds that this case is a 60-414(a) presumption based on:
“1. SRS and the court [have] been working with these parents from August 1986 to November 23, 1993, except for the period between October 19, 1988, and July 11,1990.
a. case number 86JC100 was filed August 1,1986, the motion for termination was filed November 10,1987, and parental rights were terminated June 2,1988;
b. case number 88JC56 was filed February 19, 1988, the motion for termination was filed Tuly 25,1988, and parental rights were terminated on October 19,1988;
c. case number 90JC175 was filed . . . July 11, 1990, less than two years after the parents’ rights were terminated in case number 88JC56;
“2. cases numbered [86JC100], 88JC56 and 90JC175 involve the same parents and all of the children are siblings;
“3. there is a strong correlation between the factors in the prior cases and the current factual scenario; and in order to determine whether there is a rational connection between cases the court must consider the substance of the termination of parental rights in the prior two cases;
a. there is a consistent [course] of conduct by the parents in all three cases;
b. the allegation[s] in cases numbered [86JC100], 88JC56 and [90JC175] involve physical abuse by the father and neglect;
c. while there has been some progress made by the parents they continue to be inconsistent in their therapy attendance;
d. there has been an inability to rehabilitate the family;
e. the allegations of the petition in this case show the same issues as the prior two case[s];
“4. The parents have complete and equal access to information in the case and during therapy.
a. The court has had seventeen (17) review hearings in this case with evidence being presented and both the parents and their counsel being in attendance at each hearing;
b. the evidence presented has been consistent in all three cases;
c. there has been no undue burden or hardship placed upon the parents in this case in requiring them to go forward with the evidence;
“The court finds that K.S.A. 38-1585 applies to this case and that subsections (1) and (3) are applicable. Pursuant to subsection (b) the burden of proof is on the parent to rebut the presumption.”
K.S.A. 38-1585 was constitutionally applied in this case. Although there was a substantial lapse of time between the prior findings of unfitness and the present termination, the lapse was not as great as in J.L., and the record shows contact between SRS, the district court, and the parents during much of the intervening period. Cf. J.L., 20 Kan. App. 2d at 668-69.
Both parents argue that there was insufficient evidence to find each of them unfit.
The Kansas Supreme Court discussed the appropriate standard of appellate review for termination of parental rights in In re S.M.Q., 247 Kan. 231, 240, 796 P.2d 543 (1990);
“The applicable scope of review for the appellate courts in a termination of parental rights case is not whether the record contains substantial competent evidence of a clear and convincing nature but whether there is substantial competent evidence in the record to support the trial court’s decision that the parent was unfit and that parental rights should be terminated." (Emphasis added.)
The appellate court does not reweigh the evidence or pass upon the credibility of witnesses; it must review the evidence in the light most favorable to the prevailing party. S.M.Q., 247 Kan. at 234.
Because the district court applied K.S.A. 38-1585 and shifted the burden of proof to the parents, the issue at the district court level was whether A.W.B. and K.Y.B. presented enough evidence to rebut the presumption of unfitness.
A.W.B. notes that SRS presented a reintegration plan that was approved by the district court after the child in need of care petition had been filed in this case. A.W.B. argues that SRS would not have introduced such a plan if he had remained unfit. The record indicates that the reintegration plan was not implemented because SRS never concluded that it was appropriate. The introduction of this plan, however, does not show that A.W.B. was fit.
A.W.B. points to no evidence in the record showing that he was fit. Terry Tullis, the SRS program worker assigned to A.W.B. and K.Y.B., testified that she did not think that A.W.B. would be able to take care of the children. There is substantial competent evidence in the record to support the district court’s decision that A.W.B. did not present sufficient evidence to rebut the presumption of unfitness.
K.Y.B. ignores the fact that the district court based its decision on whether K.Y.B. presented enough evidence to rebut the presumption. K.Y.B. frames her sufficiency of the evidence argument as if the district court had conducted a determination of fitness without applying the presumption of K.S.A. 38-1585.
Tullis stated that she did not want to say that K.Y.B. was an unfit parent, but rather that K.Y.B. needed more support and could improve.
Sandra Crockett, the social worker assigned to K.Y.B., stated that she did not think K.Y.B. was a fit parent “[a]s far as [the] children being returned to her home.” Crockett stated that the main issues were dependency, immaturity, budgeting, and parenting. Crockett stated that K.Y.B. “really hasn’t made the changes that she needs to make in order to — to show that she’s going to be able to take care of the children on a long term basis, the amount of children that it would be and that type of thing.”
Because this court must review the evidence in the light most favorable to the prevailing party, we conclude that the district court’s decision to terminate K.Y.B.’s parental rights is supported by substantial competent evidence. See S.M.Q., 247 Kan. at 234.
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|
Lyle, J.:
This appeal, a consolidation of five tax appeals, was taken by the Riley County Board of County Commissioners after the district court affirmed the decisions of the Board of Tax Appeals (BOTA). BOTA found Chris L. and Laurine A. Karsten, et al., (applicants) were exempt from payment of ad valorem property taxes on their automobiles under the Soldiers’ and Sailors’ Civil Relief Act of 1940.
All of the applicants are United States Army personnel or their spouses stationed at Fort Riley. In 1993, the applicants were assessed ad valorem taxes on the automobiles they maintained while living in Kansas. All filed requests for refunds and/or tax exemption applications, claiming they were exempt from the ad valorem taxes as active military personnel under the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C. App. § 501 et seq. (1994).
BOTA issued nearly identical orders in all five cases, finding that the Soldiers’ and Sailors’ Civil Relief Act exempted the applicants from tax liability. BOTA determined that the applicants were residents of other states and were stationed at Fort Riley by reason of military orders. None of the applicants had lived in Kansas prior to being stationed at Fort Riley.
The County moved for reconsideration, and BOTA issued an order granting reconsideration in each case. Thereafter, BOTA issued more detailed orders setting forth the facts upon which it relied in determining that the applicants had not given up their domicile in other states. BOTA relied on Woodroffe v. Village of Park Forest, 107 F. Supp. 906 (N.D. Ill. 1952), in finding that the applicants’ actions in registering to vote, even when the registration contained an oath of residence, was not sufficient to change domicile under the Soldiers’ and Sailors’ Civil Relief Act.
The County filed a petition for judicial review in Riley County District Court. Shortly thereafter, the County filed a motion for summary judgment in each case. On June 22, 1995, the district court denied the County’s motion for summary judgment and issued orders affirming BOTA’s decisions in each of the cases. The County filed a notice of appeal to this court.
The County essentially raises two issues on appeal. The first issue is whether the district court and BOTA properly interpreted the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C. App. § 574, and its interplay with state statutes. The second argument essentially challenges BOTA’s factual determination that the applicants had not become Kansas residents or domiciliaries for purposes of the Soldiers’ and Sailors’ Civil Relief Act.
The first issue raised by the County questions the interpretation of state and federal statutes. Interpretation of a statute is a question of law, and this court’s review of such an issue is unlimited. See In re Marriage of Quint, 258 Kan. 666, 668, 907 P.2d 818 (1995).
The second issue raised by the County attacks a factual determination made by BOTA, i.e., whether the applicants had left their prior domicile or residences and had become Kansas residents or domiciliarles. On appeal, the evidence must be viewed in the light most favorable to the prevailing party in determining whether there is substantial evidence to support the findings, and this court is precluded from reweighing the evidence. See Sunflower Racing, Inc. v. Board of Wyandotte County Comm'rs, 256 Kan. 426, 440-41, 885 P.2d 1233 (1994).
In finding that the applicants were exempt from ad valorem taxes, BOTA and the district court relied on the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C. App. § 574, which provides in relevant part:
“(1) For the purposes of taxation in respect of any person, or of his personal property, income, or gross income, by any State ... or political subdivision . . . such person shall not be deemed to have lost a residence or domicile in any State . . . solely by reason of being absent therefrom in compliance with military or naval orders, or to have acquired a residence or domicile in, or to have become resident in or a resident of, any other State . . . while, and solely by reason of being, so absent. For the purposes of taxation in respect of the personal property, income, or gross income of any such person by any State ... or political subdivision ... of which such person is not a resident or in which he is not domiciled . . . personal property shall not be deemed to be located or present in or to have a situs for taxation in such State. . . . Where the owner of personal property is absent from his residence or domicile solely by reason of compliance with military or naval orders, this section applies with respect to personal property, or the use thereof, within any tax jurisdiction other than such place of residence or domicile, regardless of where the owner may be serving in compliance with such orders. . . .
“(2) When used in this section, (a) the term ‘personal property’ shall include tangible and intangible property (including motor vehicles), and (b) the term ‘taxation’ shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof, but only if a license, fee, or excise required by the State ... of which the person is a resident or in which the person is domiciled has been paid.” (Emphasis added.)
The County argues that under Kansas law, the applicants were Kansas residents. In making this argument, the County relies on various Kansas statutes controlling motor vehicle registration and taxation. The Kansas tax code provides for the assessment of ad valorem taxes on motor vehicles. K.S.A. 79-5101 et seq. Taxes are levied upon “every motor vehicle, as the same is defined by K.S.A. 79-5101.” K.S.A. 1995 Supp. 79-5105(a). For purposes of the ad valorem tax provisions, “motor vehicle” is defined as “all motor vehicles required to be registered under the provisions of article 1 of chapter 8 of the Kansas Statutes Annotated,” unless otherwise excluded. (Emphasis added.) K.S.A. 1995 Supp. 79-5101.
Kansas law requires persons who own vehicles operated on Kansas roads to register those vehicles. That statute specifically requires an owner, “whether such owner is a resident of this state or another state,” to “apply for and obtain registration in this state under the provisions of K.S.A. 8-126 to 8-149 . . . except as otherwise provided by law or by any interstate contract, agreement, arrangement or declaration made by the director of vehicles.” K.S.A. 8-127(a). Kansas law, however, allows nonresident owners the privilege of operating their vehicles in Kansas “when duly licensed in the state of residence” to the extent reciprocal privileges are granted to residents in this state. K.S.A. 8-138a.
A “resident” for purposes of motor vehicle registration laws in Kansas is defined in K.S.A. 8-1,138. Under that statute, a “resident” is any person registered to vote in any county. K.S.A. 8-1,138(a)(1). The statute also creates a rebuttable presumption that a person is a resident if he or she owns, leases, or rents a domicile in Kansas or enrolls a student in a state school. K.S.A. 8-1,138(b)(1), (2).
The County contends that the assessment of ad valorem taxes in these cases was not based “solely” on the applicants being stationed in Kansas but on their actions which, under Kansas law, made them “residents” for tax purposes. In essence, the County is arguing that Kansas law is determinative of whether the applicants are “residents” of Kansas, thereby rendering the exemption under the Soldiers’ and Sailors’ Civil Relief Act inapplicable.
Under the Supremacy Clause of the United States Constitution, a state law which conflicts with a federal law or federal constitutional rights is unenforceable. The Supremacy Clause is applicable in determining whether state law violates the tax exemption created by the Soldiers’ and Sailors’ Civil Relief Act. United States v. State of Kan., 810 F.2d 935, 936-37 (10th Cir. 1987). State law impermissibly conflicts with a federal right “if the state law ‘ “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” ’Jones v. Rath Packing Co., 430 U.S. 519, 526, 97 S. Ct. 1305, 1310, 51 L. Ed. 2d 604 (1977) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404, 85 L. Ed. 581 [1941]).” 810 F.2d at 937.
Federal courts have recognized that the principal purpose of the provision of the Soldiers’ and Sailors’ Civil Relief Act was to “prevent the possibility of multiple state taxation of the income and property of [nonresident müitaiy] personnel.” 810 F.2d at 937. Likewise, the Act must be interpreted “ ‘with an eye friendly to those who dropped their affairs to answer their country’s call.’ ” California v. Buzard, 382 U.S. 386, 395, 15 L. Ed. 2d 436, 86 S. Ct. 478 (1966) (quoting Le Maistre v. Leffers, 333 U.S. 1, 6, 92 L. Ed. 429, 68 S. Ct. 371 [1948]).
The Soldiers’ and Sailors’ Civil Relief Act does not define “residence” or “domicile” and does not set forth any standards for determining where a serviceman’s or servicewoman’s residence or domicile exists under the Act. However, the exemption created by the Act is a creature of federal law, and it is inconsistent to look to state law to determine where such residence or domicile exists. This would subject military personnel to potentially inconsistent state laws for determining their eligibility for the ad valorem tax exemption depending upon where they are stationed.
The United States Supreme Court has rejected accepting state labels for determining whether a charge in connection with personal property fell within the scope of permissible “licenses, fees, or excises” under 50 U.S.C. App. § 574(2). California v. Buzard, 382 U.S. at 393; see also United States v. Onslow County Bd. of Educ., 728 F.2d 628, 636 (4th Cir. 1984) (state label of “user fee” is not conclusive to determining whether nonresident tuition charges are permissible under the Soldiers’ and Sailors’ Civil Relief Act). Similarly, state standards for who is considered a “resident” under the motor vehicle registration and tax laws must be rejected.
We hold that the applicants’ residency, for purposes of the Soldiers’ and Sailors’ Civil Relief Act, must be determined under federal principles and not state law.
The County next claims that BOTA’s decision is erroneous because each of the applicants registered to vote in Kansas. In doing so, each applicant filed an application which contained a sworn statement that he or she was a Kansas resident and had abandoned any other residence. The County also points out that all of the applicants registered their cars in Kansas and several owned their homes in Riley County.
BOTA found that the act of registering to vote, even based upon a certification of residency on the voter’s application, did not establish that the applicants had changed their residence to Kansas for purposes of the Soldiers’ and Sailors’ Civil Relief Act. BOTA relied on Woodroffe v. Village Park Forest, 107 F. Supp. 906.
In Woodroffe, the taxpayer was a Pennsylvania resident who was stationed by the United States Army in Chicago. Woodroffe rented a home in Park Forest, although military records indicated Pennsylvania was his home state and that he paid income taxes in his home state. While in Park Forest, Woodroffe voted in one school board election. The district court held that although state law required voters in school board elections to have a permanent residence within the school district, the court held that the evidence was that Woodroffe never abandoned Pennsylvania as his home state and that his affirmative act of voting, contrary to law, was not such to make him a resident.
The United States Supreme Court, in dicta, rejected a case based upon a similar argument. In Buzard, the Supreme Court rejected the decision of Whiting v. City of Portsmouth, 202 Va. 609, 118 S.E.2d 505 (1961), which held that a serviceman who registered a vehicle in Virginia was deemed a resident of that state. 382 U.S. at 393 n.7.
Likewise, such an argument was rejected in U. S. v. City of Highwood, 712 F. Supp. 138 (N.D. Ill. 1989). In Highwood, the city was located next to a United States Army installation. The city had an ordinance requiring its residents to pay an annual license “fee” for motor vehicles they operated on city streets. The United States brought an action for declaratory judgment and injunctive relief prohibiting the city from enforcing its ordinance against nonresident military personnel stationed at the installation. In Highwood, the city attempted to uphold its tax by arguing that the servicemen and servicewomen had registered their vehicles in Illinois and, by doing so, certified that they were residents of the state. The federal district court rejected this argument, noting:
“A change in domicile is effected only if two elements are satisfied: (1) residing at a new place, and (2) intent to remain there. [Citations omitted.]
“For servicemen, the rule is clear that ‘[a] serviceman is presumed not to acquire a new domicile when he is stationed in a place pursuant to orders; he retains the domicile he had at the time of entry into the service.’ Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3617 at 566 (1984)7’ 712 F. Supp. at 142-43.
Taking into account the presumption that military personnel retain their home domicile, there was substantial competent evidence to support BOTA’s decision that none of the applicants were Kansas residents and that they were, therefore, exempt from ad valorem taxes. In each case, the applicants were from other states and never had resided in Kansas until they were stationed by the Army at Fort Riley. All maintained their home states in the military records. Several of the applicants established that they paid state income taxes on their military salary in their home states.
Clearly, there are facts upon which BOTA could have relied in determining that the applicants intended to change their residences. The applicants did register to vote in Riley County for the 1992 elections. With the exception of one applicant, the record established that the applicants registered to vote solely for purposes of voting in national elections. All of the applicants requested they be removed from the voter rolls when learning that it could affect their status under the Soldiers’ and Sailors’ Civil Relief Act.
Several of the applicants purchased homes in Riley County rather than renting. However, the fact that the applicants sought the financial benefit of purchasing a home for their tenure at Fort Riley is not absolutely indicative of intent to become permanent Kansas residents.
We hold there was substantial competent evidence to support BOTA’s decision that the applicants did not intend to change their domicile to Kansas.
Finally, the County argues that regardless of their official “residency,” these applicants lost their tax exempt status in Kansas by voluntarily registering their vehicles in Kansas. Thus, according tó the County, the ad valorem tax being assessed against them by Riley County is not “solely” based upon their presence in Kansas or the situs of the property here.
In Buzard, 382 U.S. 386, the Court also recognized that a host state could require military personnel to register their motor vehicles in the host state if the vehicles were not registered in their home state; that registration requirement could include fees necessary to issue registration documents and license plates. However, the states could not impose a “license” fee on those vehicles which was nothing more than a disguised ad valorem tax. 382 U.S. at 393-94. In Buzard, California charged Buzard with a misdemeanor, when he refused to pay a 2% annual “licensing fee” when he attempted to register his vehicle in California.
Kansas statutes recognize the Buzard ruling. A state statute specifically exempts “members of the armed forces who are stationed in the state” from state registration requirements “provided such members’ vehicles are properly registered in such members’ state of residence.” K.S.A. 8-1,138(c)(2). Thus, Kansas law does not require bona fide nonresident military personnel stationed in Kansas to register their vehicles here unless they are not properly registered in their home states. For purposes of the ad valorem tax provisions, “motor vehicle” is defined as “all motor vehicles required to be registered under the provisions of article 1 of chapter 8 of the Kansas Statutes Annotated” unless otherwise excluded. (Emphasis added.) K.S.A. 1995 Supp. 79-5101.
Does the fact that bona fide nonresident military personnel “voluntarily” register motor vehicles in Kansas subject them to ad valorem taxes? This same argument was considered and rejected in Highwood, 712 F. Supp. at 143.
Clearly, the only reason the vehicles are registered here is because the military personnel are stationed here and their vehicles are located here. Unless the evidence shows that the applicants have become Kansas residents, registering the vehicles here is nothing more than a matter of convenience. As bona fide residents of other states, the applicants face the possibility of ad valorem taxes in two states — Kansas and their home state — simply because they registered their vehicle where it was most convenient for them.
Based upon the broad interpretation given to the Soldiers’ and Sailors’ Civil Relief Act, imposing ad valorem taxes on the motor vehicles of bona fide nonresident military personnel stationed in Kansas simply because they registered their motor vehicles here is, de facto, a tax based solely on the presence of the military personnel and the situs of the vehicles here. As such, levying the ad valorem tax in these circumstances is contrary to the Soldiers’ and Sailors’ Civil Relief Act.
For all these reasons, the decisions of BOTA and the district court are hereby affirmed. | [
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White, J.:
Dennie Gene Dighera appeals from the trial court’s denial of his motion to withdraw his guilty plea. Dighera, pursuant to a plea agreement, entered a plea of guilty to possession of methamphetamine with intent to sell and other drug charges. Dighera contends that the trial court’s denial of his motion was an abuse of discretion because the trial court accepted the plea without apprising him that the sentence for the crime was presumptive imprisonment under the sentencing guidelines. He also contends that the trial court’s acceptance of the plea deprived him of his right to raise a double jeopardy defense. We affirm the trial court’s decision.
Dighera was originally charged with five drug-related counts. The morning of the trial, the parties announced to the court that they had reached a plea agreement whereby Dighera would plead guilty to three of the five counts. The State agreed to dismiss the remaining two counts and to not seek a departure sentence. After asking Dighera various questions concerning his understanding of his rights, the court accepted the pleas and found him guilty of the crimes.
In December 1994, prior to sentencing, Dighera filed a motion to withdraw his guilty plea. The motion alleged that he was never told that the presumptive sentence for possession of methamphetamine with intent to sell was incarceration. In January 1995, the trial court, following a hearing on the motion, denied Dighera’s request. Dighera then presented argument in favor of a dispositional departure. The trial court denied Dighera’s motion for downward dispositional departure and, on the methamphetamine charge, imposed the presumptive prison sentence of 15 months. On the remaining two counts, the trial court imposed two 6-month sentences to be served concurrent with his 15-month controlling term. Dighera timely filed his notice of appeal.
MOTION TO WITHDRAW PLEA
Dighera first contends that the court abused its discretion in denying the motion to withdraw his plea of guilty to the charges. “A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” K.S.A. 22-3210(d). The standard of review is whether the trial court abused its discretion in denying the motion to withdraw plea. State v. Larry, 252 Kan. 92, 95, 843 P.2d 198 (1992). An abuse of discretion arises when “no reasonable person would take the view adopted by the trial court.” State v. Lumbrera, 257 Kan. 144, 148, 891 P.2d 1096 (1995).
Dighera’s major contention on appeal is that he was never told that the methamphetamine offense was a presumptive prison offense. The question for our determination is whether the trial court’s duty to inform a defendant of the “consequences of his plea,” requires the trial court to inform the defendant that the offense carries a presumptive sentence of imprisonment. If so, the trial court abused its discretion in denying his motion. See State v. Morris, 254 Kan. 993, 1002, 869 P.2d 739 (1994) (indicating that a trial court abuses its discretion if, on a motion for withdrawal of a guilty plea, the court mistakenly determines that K.S.A. 22-3210 was complied with during its earlier acceptance of a defendant’s guilty plea).
K.S.A. 22-3210(a) provides that in felony cases, a plea of guilty or nolo contendere may be accepted when:
“(2) . . . the court has informed the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1,1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
“(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.”
While questioning Dighera concerning his plea, the court asked the following questions:
“Do you understand that the penalty for the charges to which you are pleading is the same whether you are convicted by a jmy or by ... a plea? Do you understand that the penalty to the possession of methamphetamine with the intent to sell is a period from 14 to 51 months in the custody of the Secretary of Corrections and that that’s pursuant to the statute, there is no presumption of probation?” (Emphasis added.)
Dighera indicated that he understood. The trial court asked Dighera: “Has anybody made any other or further promises or representations to you to induce you to make this plea?” to which Dighera responded in the negative. Finally, the trial court asked Dighera: “Has anybody made a promise to you that you’d receive probation or parole or any other form of leniency simply in exchange for the plea of guilty in this case?” Again, Dighera responded in the negative. The trial court ultimately accepted Dighera’s guilty plea and adjudged him guilty on the three counts.
Dighera’s argument focuses on the distinction between a statement advising a defendant that “there is no presumption of probation” and a statement that “there is a presumption of incarceration.” He contends that the court’s admonition that “there is no presumption of probation” did not inform Dighera that a conviction on the methamphetamine charge involved a presumptive prison sentence. We decline the invitation to become involved in such an analysis. K.S.A. 22-3201(a)(2) does not require that the court, when accepting a plea, inform a defendant of the sentencing guidelines presumption of probation or incarceration. The statute requires that the court inform the defendant of the consequences of his plea.
This court’s construction of the phrase “consequences of the plea,” K.S.A. 22-3210(a)(2), is a question of law which entitles this court to unlimited review. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995) (citing State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 [1993]). Under K.S.A. 22-3210, prior to the sentencing guidelines, the trial court could accept a guilty plea in a felony case when “the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law which maybe imposed upon acceptance of such plea.” (Emphasis added.) K.S.A. 22-3210(a)(2) (Ensley 1988). Under the old law, the legislature clearly treated sentencing considerations as separate from “consequences of the plea.” The trial court was required to inform the defendant of the maximum penalty under the law, not because it was a consequence of the plea, but because the court was separately mandated by statute to make such a disclosure.
In the latest version of the statute, the legislature has indicated that the trial court must inform “the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1, 1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.” (Emphasis added.) K.S.A. 22-3210(a)(2). This language suggests that the legislature considers the maximum penalty to be one consequence of a defendant’s guilty plea and that the defendant must understand what potential penalty he faces before his guilty plea may be considered to have been given freely and voluntarily.
When the phrase “consequences of the plea” is used in K.S.A. 22-3210(a)(3), that phrase embodies the understanding that the guidelines sentencing range is a consequence of which a defendant must be informed prior to the court’s acceptance of a guilty plea. The legislature, in amending the statute, did not include a requirement that the trial court inform a defendant of the presumption of imprisonment prior to accepting his guilty plea. It could easily have done so. This court has historically adhered to the principle “ ‘ex-pressio unius est exclusio alteñus, i.e.,'the mention or inclusion of one thing implies the exclusion of the other ... to assist in determining actual legislative intent which is not otherwise manifest’ ” on the face of the statute. State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977). Dighera is requesting that we add something to the statute not dictated by the plain meaning of the legislative language. This court is required to “give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl ¶ 2, 829 P.2d 561 (1992).
There is little Kansas case law interpreting what constitutes the consequences of a plea. See, e.j., Cox v. State, 16 Kan. App. 2d 128, 130-31, 819 P.2d 1241 (1991), rev. denied 250 Kan. 804 (1992) (stating that the trial court need not inform defendant of collateral consequences of a guilty plea).
In Hicks v. State, 220 Kan. 279, 283, 552 P.2d 889 (1976), our Supreme Court ruled that “[p] aróle eligibility is not one of the consequences of a plea contemplated in K.S.A. 22-3210 on which the court must inform a defendant.” The defendant in Hicks complained about a statutory provision which provided “that any person sentenced to life imprisonment shall not be eligible for parole for fifteen years.” 220 Kan. at 282. However, the defendant had ignored that another provision permitted the district court to “reduce a life sentence to a term of years when such reduction is recommended by the secretary of corrections and the court is satisfied that the best interests of the public will not be jeopardized and that the welfare of the inmate will be served by such reduction.” 220 Kan. at 282.
To a similar extent in the present case, Dighera’s presumptive sentence was subject to rebuttal depending on the underlying circumstances of the offense as considered by the trial court in its duty to determine whether substantial and compelling reasons exist for departure. See K.S.A. 21-4716.
In addition to the foregoing, we believe there are sound policy reasons for not requiring the trial court, when receiving a defendant’s plea, to advise the defendant of the presumption of probation or incarceration. At arraignment, or any other stage of the proceeding when a plea may be offered, the court will have little information concerning the case other than the crimes charged and their severity level. The court will, in all likelihood, not know the defendant’s criminal history. In the present case, the methamphetamine charge was a drug severity level 3 crime. All drug severity level 3 crimes are presumptive incarceration offenses. In many types of crimes, however, the defendant’s criminal history must be known before the presumptive sentence of imprisonment or probation can be determined.
The court may not know, at the time a plea is entered, whether either the State or the defendant will seek a sentence departure and whether there are aggravating or mitigating circumstances jus tifying a departure. Where there is a sentencing departure, a presumptive incarceration offense may result in probation for the defendant. Conversely, a presumptive probation may result in a prison sentence. Clearly, there must be a limit as to what is required of the trial court in advising a defendant of the sentence he may expect as a result of his or her plea. We believe the legislature has established that limit in K.S.A. 22-3210(a)(2).
In advising Dighera that “there is no presumption of probation” the trial court did not mislead Dighera as to the consequences of his plea. The admonition certainly would alert a reasonable person to the possibility that he will be sentenced to prison. When the admonition is considered along with the other questions asked by the court and Dighera’s response to the questions, we conclude that Dighera was adequately advised of the consequences of his plea. The court did not abuse its discretion in denying Dighera’s motion to withdraw his plea of guilty.
DOUBLE TEOPARDY DEFENSE
Dighera contends that the trial court’s denial of his motion to withdraw his guilty plea denied him a theory of defense, essentially that an individual may not be placed in double jeopardy. In support of his argument, Dighera cites the United States Supreme Court decision Montana Dept. of Rev. v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994), in which the Court invalidated Montana’s drug tax stamp as violative of constitutional guarantees against placing an individual in double jeopardy. This argument fails under various rationales.
Dighera entered and received the benefit of a plea bargain. At the plea hearing, the court asked Dighera whether he had discussed any applicable defenses with counsel. Dighera indicated he understood that he would have certain defenses which he would waive upon entering his guilty plea. See State v. Crawford, 250 Kan. 174, 177, 824 P.2d 951 (1992) (where defendant enters a plea bargain which contains a specific recommendation, urges the court to accept the sentence recommendation, and the court takes that recommendation and follows through by imposing the recommended sentence, defendant waives consideration of the sentenc ing factors). He failed to raise the double jeopardy issue in his motion to withdraw his guilty plea. See State v. Johnson, 253 Kan. 75, 91, 853 P.2d 34 (1993) (“defendant cannot raise points on appeal which were not presented to the- trial court”); see also State v. Solomon, 257 Kan. 212, 220-22, 891 P.2d 407 (1995) (Kansas Supreme Court refused to consider voluntariness of plea where defendant failed to raise that argument in his motion to withdraw his plea before the trial court). The double jeopardy issue was not raised in the trial court and cannot now be presented on appeal.
The decision of the trial court is affirmed. | [
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|
Green, J.:
Ponca/Universal Holdings, Inc., d/b/a Classic Cable (Classic Cable) appeals from a civil judgment under the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623, et seq. Elva M. Ray sued Classic Cable, contending that Classic Cable reneged on an earlier promise to allow her to pay a reduced rate for cable service. The jury determined that Classic Cable committed a deceptive act or practice and awarded actual damages of $59.57. On appeal, Classic Cable contends (1) that the court erred in failing to instruct the jury that the deceptive act must be shown by clear and convincing evidence, (2) that the jury’s determination that Classic Cable committed a deceptive act is not supported by sub stantial competent evidence, and (3) that the trial court abused its discretion in awarding a civil penalty of $2,742.
We conclude that the trial court properly instructed the jury, that the jury’s determination that Classic Cable committed a deceptive act is supported by substantial competent evidence, and that the trial court’s civil penalty award is reasonable. As a result, we affirm the judgment of the trial court.
Ray testified that she routinely paid for her cable service a year in advance because she received a reduced rate. When Ray received notice that the rates were going up, she phoned a representative of Classic Cable to ask if she could still receive a discount if she prepaid her cable charge. She testified that because the representative told her that she could receive 1 year’s service by paying $214.68, she sent a check to Classic Cable for that amount. The check included a notation that she was paying for a full year. In September, Classic Cable notified Ray that she owed $13.87. She was also charged for October and November. Ray then filed suit against Classic Cable under the KCPA. Instead of accepting the damage award of $59.57, Ray elected to accept a civil penalty. The trial court awarded a civil penalty of $2,742.
Classic Cable makes two arguments that the factual evidence was insufficient to sustain the juiy’s verdict. First, Classic Cable argues that the trial court should have instructed the jury that Ray had to present clear and convincing evidence of a deceptive practice to prevail. The jury was instructed as follows:
“Kansas law provides no supplier shall engage in any deceptive act or practice in connection with a consumer transaction. Deceptive acts and practices include, but are not limited to, the following, each of which is a violation [of] Kansas law, whether or not any consumer has in fact been misled:
1. Representations made knowingly or with reason to know that property or services have sponsorship, approval, accessories, characteristics, ingredients, uses, benefits or quantities that they do not have;
2. The willful use, in an oral or written representation, of exaggeration, falsehood, innuendo or ambiguity as to a material fact; and
3. The willful failure to state a material fact, or the willful concealment, suppression-or omission of a material fact.”
Ray’s brief points out that the instructions followed, almost verbatim, the wording of K.S.A. 50-626.
Importantly, Classic Cable did not object to the jury instructions at trial. In holding that the failure to object to jury instructions precludes reversal on appeal unless the instruction was clearly erroneous, our Supreme Court stated:
“A party may not assign as error the giving or failure to give an instruction unless the party objects before the jury retires to consider its verdict. The objection must distinctly state the matter to which the party objects and the grounds for such objection unless the instruction is clearly erroneous. [Citation omitted.]” Bright v. Cargill, Inc., 251 Kan. 387, 409, 837 P.2d 348 (1992).
Classic Cable argues that the failure to give the clear and convincing instruction was clearly erroneous. Classic Cable reasons that a deceptive practice is “substantially the same” as fraud, which requires that the underlying facts be proven by clear and convincing evidence. However, Classic Cable cites no case law in support of this contention. We also found no case law or commentary which would indicate that the legislature intended to require the same or similar quality of proof in both fraud and deceptive practices. Indeed, the statute and the comments following the statute imply the opposite. K.S.A. 50-623 states:
“This act shall be construed liberally to promote the following policies:
(a) To simplify, clarify and modernize the law governing consumer transactions;
(b) to protect consumers from suppliers who commit deceptive and unconscionable practices;
(c) to protect consumers from unbargained for warranty disclaimers; and
(d) to provide consumers with a three-day cancellation period for door-to-door sales.”
Additionally, the KCPA specifically censures false or misleading representations regarding price reductions. Under K.S.A. 50-626(b)(7), deceptive acts and practices include
“making false or misleading representations, knowingly or with reason to know, of fact concerning the reason for, existence of or amounts of price reductions, or the price in comparison to prices of competitors or one’s own price at a past or future time.”
Finally, the liberal interpretation of the KCPA is further supported by a Washburn law review note entitled “A New Kansas Approach to an Old Fraud.” 14 Washburn L.J. 623 (1975). The note analyzes the KCPA and concludes that the legislature did not intend to require that consumers prove ah the common-law elements of fraud.
“In determining the elements of proof required in a damage suit under the CPA proof of the ‘deceptive trade practice’ proscribed by the Act does not require proof of all the elements of a common law fraud. The word ‘fraud’ does not appear in the CPA; the Act does not mention any elements of common law such as scienter, reasonable reliance, material fact and resulting damage, except within a few of the listed per se violations. Further, the CPA's forerunners, Kansas misrepresentation case law and the BPA, did not require the plaintiff to prove all elements of common law fraud: Consumers cannot reasonably.be expected to bear a heavier burden of proof under an Act intended by the legislature to further advance Kansas consumer interests, than that required by its predecessors.” 14 Washburn L.J. at 635.
The legislature clearly intended to increase the protections afforded consumers by enacting the KCPA. Equating the burden or quality of proof required to establish a deceptive practice with the proof required to establish common-law fraud is contrary to that intent. If the legislature intended to include a clear and convincing standard, it could easily have done so. Because there is no support for the imposition of this higher standard, we will not read it into the statute.
Classic Cable’s second evidentiary argument focuses on the quantity of evidence presented. Essentially, Classic Cable argues that the evidence was insufficient to support the jury’s finding that it had committed a deceptive act. “Whether an act is a deceptive practice under K.S.A. 50-626 is a question of fact for the jury. [Citation omitted.] Our standard of review, therefore, is whether there is substantial competent evidence to support the jury’s findings. [Citation omitted.]” Farrell v. General Motors Corp., 249 Kan. 231, 243, 815 P.2d 538 (1991),
Ray’s case is admittedly limited to her testimony regarding her prior relationship with the cable company, her conversation with the company’s employee who answered her call, and her check, which was admitted into evidence, for one year of services. On appeal, Classic Cable argues that Ray failed to prove her case because the deceptive practice she alleges could be characterized as a mistake. It argues, therefore, that the trial court erred in denying its motion for a directed verdict. But Classic Cable offered no ev idence from which the juiy might infer that a mistake or misunderstanding had occurred. Whether an act is a deceptive practice is a question of fact for the jury. Therefore, the trial court properly submitted the case to the jury and denied Classic Cable’s motion for directed verdict.
Finally, we are not permitted to weigh the evidence or pass upon the credibility of witnesses. Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977). Therefore, viewing the evidence in the light most favorable to Ray, the juiy had sufficient evidence to find that Classic Cable committed a deceptive practice.
Classic Cable’s final argument is that the trial court abused its discretion in awarding a civil penalty of $2,742. Our courts have repeatedly described abuse of discretion in the following manner:
“Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable, which is another way of stating that discretion is abused only if no reasonable person would take the view adopted by the trial court. If reasonable persons could differ regarding the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. [Citation omitted.]” State v. Warden, 257 Kan. 94, 116, 891 P.2d 1074 (1995).
Classic Cable argues that the amount of the civil penalty is excessive. It maintains that the trial court failed to state on the record exacdy how it arrived at the sum of $2,742. Classic Cable further argues that its conduct was not particularly egregious and that this was an isolated incident.
Both Ray and Classic Cable cite cases dealing with punitive damages in their arguments on this issue. While the civil penalty here is not technically a punitive damage award, the cases are instructive. The case law reveals that neither the court nor the legislature has established a fixed ratio between actual and punitive damages to determine whether a punitive damage award is excessive. See Iola State Bank v. Bolan, 235 Kan. 175, 193, 679 P.2d 720 (1984). Hence, the courts have refused to reverse a verdict simply because of the size of the award, unless the amount of the verdict, in light of the evidence, shocks the conscience of the appellate court. Cantrell v. R. D. Werner Co., 226 Kan. 681, 686, 602 P.2d 1326 (1979). Classic Cable complains that the penalty is 46 times the actual damages. On the other hand, Ray points to Sampson v. Hunt, 233 Kan. 572, 588, 665 P.2d 743 (1983), in which our Supreme Court upheld an award of punitive damages 30 times greater than the actual damages.
Classic Cable states in its brief that the new yearly rate that it was charging its cable customers was $274.20. If you multiply this amount by 10, the total sum is $2,742. When the trial court could have awarded a civil penalty up to $5,000, we do not think the award of $2,742 is excessive. See K.S.A. 50-634(b) and K.S.A. 50-636(a).
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Briscoe, C.J.:
Laura Vetter appeals the summary judgment dismissal of her intentional infliction of emotional distress, assault, and negligence claims against Chad Morgan for injuries sustained in an automobile accident. We affirm the summary judgment in favor of Morgan on the tort of outrage claim, and reverse and remand for further proceedings on the balance of Vetter’s claims against Morgan.
Vetter was injured when her van ran off the road after an encounter with a car owned by Morgan’s father and driven by Dana Gaither. Morgan and Jerrod Faulkner were passengers in the car. Vetter was alone at 1:30 or 1:45 a.m. when she stopped her van in the right-hand westbound lane of an intersection at a stoplight. Morgan and Gaither drove up beside Vetter. Morgan began screaming vile and threatening obscenities at Vetter, shaking his fist, and making obscene gestures in a violent manner. According to Vetter, Gaither revved the engine of the car and moved the car back and forth while Morgan was threatening Vetter. Vetter testified that Morgan threatened to remove her from her van and spat on her van door when the traffic light turned green. Vetter stated she was very frightened and thought Morgan was under the influence of drugs or alcohol. She was able to write down the license tag number of the car. Morgan stated he did not intend to scare, upset, or harm Vetter, but “didn’t really care” how she felt. He was trying to amuse his friends, who were laughing at his antics.
When the traffic light changed to green, both vehicles drove forward. According to Vetter, after they had driven approximately 10 feet, the car driven by Gaither veered suddenly into her lane, and she reacted by steering her van sharply to the right. Vetter’s van struck the curb, causing her head to hit the steering wheel and snap back against the seat, after which she fell to the floor of the van. Morgan and Gaither denied that the car veered into Vetter’s lane, stating they drove straight away from the intersection and did not see Vetter’s collision with the curb.
Vetter filed this action against Morgan and Gaither, alleging their negligent or intentional actions had caused her injuries. The trial court granted summary judgment in favor of Morgan, ruling Vetter could not raise a negligence claim against Morgan for unintended results of his intentional acts. The court concluded that Morgan could not be hable for Gaither’s actions because Morgan did not participate in driving the car. The court also concluded Morgan’s -actions did not constitute assault or outrageous conduct and dismissed all claims against Morgan. Gaither settled with Vetter, and the trial court approved the settlement.
The standard of review for a summary judgment is set out in Kerns v. G.A.C. Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994):
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when tire pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.”
I. Tort of outrage.
Vetter contends the trial court erred in concluding as a matter of law that Morgan’s actions did not constitute outrageous conduct. There are two threshold issues that must be decided before liability may be imposed for intentional infliction of emotional distress: whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, and whether the emotional distress suffered by the plaintiff is in such extreme degree that the law must intervene because no reasonable person should be expected to endure it. Taiwo v. Vu, 249 Kan. 585, 592, 822 P.2d 1024 (1991).
There was no evidence that Vetter suffered extreme emotional •distress sufficient to support her claim. Her testimony that she was “very, very frightened” during the incident does not establish the kind of extreme emotional distress required for liability. See Roberts v. Saylor, 230 Kan. 289, 296, 637 P.2d 1175 (1981). Although Vetter testified that she later became very depressed and was given a prescription for Prozac for a short time, this testimony was given when she was describing her physical injuries and medical treatment for them rather than her emotional reaction to Morgan’s actions.
II. Assault.
Vetter argues the trial court erred in dismissing her assault claim against Morgan. Assault is defined as “an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessaiy.” Taiwo, 249 Kan. at 596 (quoting PIK Civ. 2d 14.01).
The trial court concluded there was no evidence that Morgan threatened or attempted to harm Vetter, that he had no apparent ability to harm her because her van was locked and the windows were rolled up, and there was no claim of immediate apprehension of bodily harm. Vetter contends all of these conclusions involved questions of fact that should have been resolved by a jury.
There was evidence of a threat. Vetter testified in her deposition that Morgan verbally threatened to take her from her van. Ordinarily, words alone cannot be an assault. However, words can constitute assault if “together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with his person.” Restatement (Second) of Torts § 31 (1964). See Gomez v. Hug, 7 Kan. App. 2d 603, 606, 645 P.2d 916, rev. denied 231 Kan. 800 (1982).
The record is sufficient to support an inference that Morgan’s threat and the acts and circumstances surrounding it could reasonably put someone in Vetter’s position in apprehension of imminent or immediate bodily harm. Morgan’s behavior was so extreme that Vetter could reasonably have believed he would immediately try to carry out his threat. It is not necessary that the victim be placed in apprehension of instantaneous harm. It is sufficient if it appears there will be no significant delay. See Restatement (Second) of Torts § 29(1), comment b (1964).
The record also supports an inference that Morgan had the apparent ability to harm Vetter. Although Vetter’s van was locked and the windows rolled up, the windows could be broken. The two vehicles were only six feet apart, and Morgan was accompanied by two other males. It was late at night, so witnesses and potential rescuers were unlikely. Although Vetter may have had the ability to flee by turning right, backing up, or running the red light, her ability to prevent the threatened harm by flight or self-defense does not preclude an assault. It is enough that Vetter believed that Morgan was capable of immediately inflicting the contact unless prevented by self-defense, flight, or intervention by others. See Lesser v. Neosho County Community College, 741 F. Supp. 854, 865-66 (D. Kan. 1990); Restatement (Second) of Torts § 24, comment b (1964).
The trial court erred in concluding there was no evidence that Vetter was placed in apprehension of bodily harm. Whether Morgan’s actions constituted an assault was a question of fact for the juiy.
III. Negligence — unintended results of intentional acts.
Vetter next contends the trial court erred in concluding as a matter of law that she could raise no negligence claim against Morgan because it was uncontroverted that Morgan’s acts were intentional. Vetter argues she can raise a negligence claim based on the unintended results of Morgan’s intentional acts, a theory specifically rejected by the trial court.
A negligence claim maybe based on intentional rude pranks and horseplay that cause unintended injury. See Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 366, 388 P.2d 824 (1964). Actions that are not intended to, but do cause fear of harm may be negligence. See Restatement (Second) of Torts § 21(2) (1964). Moreover, a negligence claim may be based on actions the defendant intends to affect, or should realize are likely to affect, the conduct of another in a manner that creates an unreasonable risk of harm to another. Consequently, it is negligence to subject another to sudden fright or shock because of the risk that the victim’s reaction may cause harm. See Restatement (Second) of Torts § 303, comments d and e (1964); Henkel v. Jordan, 7 Kan. App. 2d 561, 562-64, 644 P.2d 1348, rev. denied 231 Kan. 800 (1982).
The trial court erred in concluding that Morgan’s actions could not constitute negligence. It was uncontrovertéd that Morgan was accompanied by two other males when he subjected Vetter, a lone woman in a vehicle stopped at an intersection late at night, to screamed obscenities and gestures. There was evidence that he threatened to take her from her van. Although Morgan said his only intent was to amuse his friends, and he denied that he intended to frighten or harm Vetter, she testified that she was “very, very frightened.” The record supports a reasonable inference that Morgan should have realized Vetter would be frightened and that it was foreseeable that her fright would create a risk of harm.
IV. Proximate cause of accident and injuries.
The trial court concluded that Morgan could not be hable for Vetter’s physical injuries because he was not driving the car. Vetter contends there is sufficient support in the record for a reasonable inference that Morgan’s actions were a proximate cause of the accident and her injuries.
To be a cause in fact, Morgan’s actions had to be a “substantial factor” in bringing about the harm. Roberson v. Counselman, 235 Kan. 1006, 1012, 686 P.2d 149 (1984). Causation is ordinarily a question for the jury, “unless the issue is so clear that reasonable men could not differ.” Roberson, 235 Kan. at 1011.
The record contains evidence that Morgan’s actions, which continued for some 30 seconds, made Vetter “very, very frightened.” Within seconds after the light changed, Morgan’s car veered suddenly toward Vetter’s van, and she reacted by instinctively turning sharply toward the curb. It would not be unreasonable to infer that her frightened state caused her to overreact to the car’s approach and hit the curb, and that Morgan’s actions were a substantial factor in bringing about the accident. This was a question of fact for the jury.
The record also contains evidence to support Vetter’s theory that Morgan’s actions were a proximate cause of her injuries. Proximate cause is defined as that cause which, “ ‘in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.’ ” St. Clair v. Denny, 245 Kan. 414, 420, 781 P.2d 1043 (1989).
The record does not conclusively establish that Gaither’s actions in veering sharply toward Vetter’s van were an independent intervening cause that broke the causal connection between Morgan’s actions and Vetter’s injuries. The rule that a causal connection between an actor’s wrongful act and an injury is broken by an independent intervening cause does not apply when the intervening cause might reasonably have been foreseen by the actor. See Miller v. Zep Mfg. Co., 249 Kan. 34, 51, 815 P.2d 506 (1991).
The record does not establish that Gaither’s swerving toward Vetter’s van was unforeseeable by Morgan. Gaither was amused by Morgan’s harassment of Vetter, and there was evidence that he contributed to the threatening atmosphere by revving the engine and moving the car back and forth. It was not unforeseeable that Gaither would intentionally or recklessly drive in a manner that might further threaten Vetter. Moreover, Gaither was not independent of Morgan. The car belonged to Morgan’s father, which gave Morgan “a peculiar ability” to control the manner in which the car was driven. See Restatement (Second) of Torts § 318, comment a (1964). Whether Gaither’s actions were an independent intervening cause was a question of fact for the jury.
V. Joint venture.
Vetter also contends the trial court erred in concluding that Morgan could not be liable for the wrongful conduct of Gaither. She argues they are liable for each other’s actions because they jointly engaged in the harassment.
One person may be liable for the tortious conduct of another when they act in concert. Restatement (Second) of Torts § 876 (1977) sets out rules for tort liability of persons acting in concert:
“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.”
Under Kansas law, § 876 of the Restatement corresponds to the theories of civil conspiracy and aiding and abetting. State ex rel. Mays v. Ridenhour, 248 Kan. 919, 936, 811 P.2d 1220 (1991). Civil conspiracy has five elements: “(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.” 248 Kan. at 927. When all elements are present, any act done by a member of the conspiracy in furtherance of the common object and in accordance with the general plan becomes the act of all, and each conspirator is responsible for the act. See Vaughan v. Hornaman, 195 Kan. 291, 299, 403 P.2d 948 (1965). Because direct evidence is rarely available, a civil conspiracy may be proved by circumstantial evidence. Consequently, the existence of the conspiracy may be proved by proving the acts of the various defendants. See Nardyz v. Fulton Fire Ins. Co., 151 Kan. 907, 911, 101 P.2d 1045 (1940).
Here, the record contains evidence to support Vetter’s claim that Morgan was liable for Gaither’s actions. There was evidence that Morgan and Gaither had a common goal of harassing and frightening Vetter and they acted together to accomplish that object. Each engaged in an unlawful overt act, Morgan by his verbal abuse and threats, and Gaither by swerving toward Vetter’s van. Gaither’s act caused Vetter’s accident and injuries. There was evidence to support all elements necessary to malee Morgan liable for Gaither’s act. This evidence was sufficient to withstand Morgan’s motion for summary judgment.
Affirmed in part, reversed in part, and remanded for further proceedings. | [
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PlERRON, J.:
Robert Bookless filed a petition under K.S.A. 60-1501 challenging the Kansas Parole Board’s (KPB) decision to deny him parole. The district court rejected the several claims which Bookless raised and dismissed the petition. We affirm.
Bookless is currently serving a 10-year to life sentence for aggravated robbeiy and a 5 to 20-year sentence for aggravated burglaiy. The sentences began on March 21, 1978. Bookless had parole hearings in 1986, 1991, 1992, and 1993, where he was denied parole. In 1994, the decision of KPB was:
“Pass to March 1996. Pass reasons: serious nature and circumstances of the crime (inmate went into a store with a handgun and shot a person in there); history of criminal activities (long history with threats to the President of the United States); bad attitude (uncooperative; did not appear to want to provide information to the Board; came into hearing with a chip on his shoulder).”
Bookless then filed this K.S.A. 60-1501 action, which the trial court denied. In 1995 and 1996, Bookless appeared before the board again, where the decisions were respectively:
“After considering all the statutory factors contained in K.S.A. 22-3717, the decision of the KPB is as follows: Annual File Review: No change in prior order.” “After considering all the statutory factors contained in K.S.A. 22-3717, the decision of the KPB is as follows: Pass to March 1998. Pass reasons: serious nature & circumstances of the crime: history of criminal activities.”
Bookless contends the 1978 version of K.S.A. 22-3717, in effect when he committed the crimes for which he is currently serving sentence, creates a liberty interest in parole. In making this contention, Bookless assumes K.S.A. 1978 Supp. 22-3717 applies to him. However, an exception to the fundamental rule of prospective application of statutes is that “if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively.” State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991). Further: “ ‘As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.’ ” State v. Sylva, 248 Kan. 118, 119, 804 P.2d 967 (1991) (quoting State v. Hutchison, 228 Kan. 279, Syl. ¶ 8, 615 P.2d 138 [1980]). Thus, contrary to Bookless’ assumption, his parole eligibility is not governed by K.S.A. 1978 Supp. 22-3717. Accordingly, his first contention fails.
Even assuming, for the purposes of argument, that K.S.A. 1978 Supp. 22-3717 applies to Bookless, his argument fails. Bookless cites Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979), where the United States Supreme Court held that Nebraska’s parole statute created a liberty interest in parole, and Board of Pardons v. Allen, 482 U.S. 369, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987), where the Court held that Montana’s parole statute created a liberty interest in parole. Bookless argues that K.S.A. 1978 Supp. 22-3717 is so similar to the Montana statute in Allen that Kansas also has created a liberty interest in parole.
As the State points out, in Gilmore v. Kansas Parole Board, 243 Kan. 173, 756 P.2d 410, cert. denied 488 U.S. 930 (1988), our Supreme Court distinguished Greenholtz and Allen and held that K.S.A. 1987 Supp. 22-3717 does not create a liberty interest in parole. 243 Kan. at 178-80. In particular, the Supreme Court noted language in K.S.A. 1987 Supp. 22-3717(e), which it reasoned merely empowers the KPB to place an inmate on parole. See 243 Kan. at 179.
K.S.A. 1978 Supp. 22-3717(1) contains language nearly identical to that found in K.S.A. 1987 Supp. 22-3717(e). The only difference is that the former statute refers to the Kansas Adult Authority (KAA), rather than the KPB, as the entity empowered to grant parole. K.S.A. 22-3707a indicates that the KAA and the KPB are substantively equivalent. Because K.S.A. 1978 Supp. 22-3717(1) and K.S.A. 1987 Supp. 22-3717(e) are substantively identical, K.S.A. 1978 Supp. 22-3717 does not create a liberty interest in parole.
Bookless also contends he is entitled to parole pursuant to the findings of the KPB. K.S.A. 1978 Supp. 22-3717(4) permits an inmate to be placed on parole “only when the Kansas adult authority believes that the inmate is able and willing to fulfill the obligations of a law-abiding citizen or that the inmate should be released for hospitalization, deportation or to answer the warrant or other process of a court.” Although his past parole records are not contained in the record on appeal, Bookless states that, in denying him parole, the KPB has previously made a specific finding that it did not believe that he was able and willing to assume the responsibilities of a law-abiding citizen. However, because the KPB made no such finding in passing him for parole in May 1994, Book-less argues the KPB believes he is able and willing to assume those responsibilities.
Once again, Bookless assumes that the 1978 version of the pertinent statute applies to him. As shown above, K.S.A. 1978 Supp. 22-3717(4) does not apply to him because it is not substantive in nature. Once again, Bookless’ contention must fail.
Even addressing the merits of his contention, we find it fails for several reasons. First, we are unable to assess the KPB’s previous parole determinations concerning Bookless because he has failed to include them in the record. “An appellant carries the burden to include in the record on appeal any matter upon which the appellant intends to base a claim of error. Without an adequate record on appeal to substantiate contentions, claims of alleged error must fail.” Fletcher v. Nelson, 253 Kan. 389, Syl. ¶ 2, 855 P.2d 940 (1993).
Assuming Bookless’ prior parole determinations by the KPB are as represented in his brief, K.S.A. 1978 Supp. 22-3717(4) contains no requirement that the KPB make an express finding of whether an inmate is able and willing to fulfill the obligations of a law-abiding citizen. In denying parole in May 1994 because of the serious nature of his crimes and his history of criminal activity, the KPB made an implicit finding that it did not believe Bookless was able and willing to fulfill the obligations of a law-abiding citizen.
Bookless bases his contention on the premise that the parole statute creates a liberty interest in parole. As our discussion of the first issue on appeal shows, K.S.A. 1978 Supp. 22-3717 does not create a liberty interest in parole.
Affirmed. | [
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|
Knudson, J.:
The defendant, Thomas William Penny, appeals his conviction for possession of cocaine with intent to sell within 1,000 feet of a school in violation of K.S.A. 1993 Supp. 65-4127a(d).
The underlying facts in this case are not in material dispute. Penny purchased cocaine from a police informant. He was arrested and charged with several crimes, including violation of 65-4127a. At jury trial, he was convicted of all offenses.
During deliberations, the jury requested that the court clarify the elements instruction regarding violation of K.S.A. 1993 Supp. 65-4127a. The instruction as given conformed to PIK Crim. 3d 67.13-B. The jury wanted to know if the instruction meant that the defendant must intend to sell the cocaine within 1,000 feet of the school property. The judge informed the jury that was not a re quirement under the instruction. We note that the court’s communications with the juiy regarding instructions is not an issue on appeal.
Subsequently, the court, in the presence of counsel, had further discussion with the presiding juror regarding the verdict form under count I which charged Penny with a violation of 65-4127a. As initially provided to the jury, the verdict form stated: “We, the jury, find the defendant guilty as charged in Count I of possession with the intent to sell, deliver or distribute a narcotic drug, to-wit: cocaine, within 1,000 feet of school property.”
The following exchange regarding the verdict form occurred during the chamber conference with the presiding juror:
“[Presiding Juror]: The prepositional phrase at the end of that sentence appears to modify intent to sell; and we, as a jury, feel that he did not have an intent to sell within a school. We feel that the phrase within a thousand feet of a school property needs to be closer to possession. I’m sorry, I’m an English teacher. It appears to us that the way that reads is that the defendant not only possessed die drugs within a thousand feet of a school but that he also intended to sell them in that location at some point and we aren’t happy with the way the phrasing is done on it. That was our thinking. That was the reason we had so much trouble explaining our question is because the way that is written is a little bit different than the way that the jury instructions are written. And we were in disagreement about exacdy what it meant, whether it was this way and whether it was die jury instructions; and it appears tiiat the jury instructions were the way — the true intent of the verdict. And we don’t dunk that that accurately portrays what the jury instructions do. And what your note says, that he did not have to intend to sell the cocaine within a thousand feet of a school. That make sense?
“[Presiding juror]: Judge, I have four jurors in there who refuse to vote guilty on the charge as it stands on the verdict form because the way it reads indicates that he was intending to sell drugs within a thousand feet of school, and those of us on the jury don’t believe that was his intent. Speaking very frankly, and I realize both counsel are here, but speaking frankly that is the belief of, well, virtually the entire jury. But there are at least four jurors who refuse to vote guilty the way it is written.
“[Presiding juror]: Is it not possible to have that one phrase moved?”
After the presiding juror went back to the jury room, the court conferred with counsel and then modified the verdict form to read: “We the jury, find the defendant guilty as charged in Count I of possession of a narcotic drug, cocaine, within 1,000 feet of school property with intent to sell, deliver or distribute.”
Shortly after the jury received the modified verdict form, the jury found Penny guilty as charged.
. On appeal, Penny contends that 65-4127a(d) is unconstitutionally vague as to the proscribed conduct. He further contends that the trial court erred in its modification of the verdict form upon which he was found guilty.
Resolution of the issues raised by Penny depends upon an interpretation of K.S.A. 1993 Supp. 65-4127a which read in material part:
“(b) . . . [I]t shall be unlawful for any person to sell, offer for sale, or have in such person’s possession with intent to sell . . . any . . . narcotic drugs .... Except as provided . . . , any person who violates this subsection shall be guilty of a drug severity level 3 felony.
“(d) . . . [U]pon conviction of any person for a first offense pursuant to subsection (b), such person shall be guilty of a drug severity level 2 felony if such person is 18 or more years of age and the substances involved were possessed with intent to sell, deliver or distribute; sold or offered for sale in or on, or within 1,000feet of any school property . . . .” [Emphasis added.]
Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
“The standard for determining whether a criminal statute is vague is whether the language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.” Boatright v. Kansas Racing Comm’n, 251 Kan. 240, Syl. ¶ 2, 834 P.2d 368 (1992).
Ordinarily, unless a law impinges upon explicit constitutional guarantees, it "«411 not be held unconstitutional for vagueness unless it specifies no standard of conduct at all. Hearn v. City of Overland Park, 244 Kan. 638, 641, 772 P.2d 758, cert. denied 493 U.S. 976 (1989).
The conduct proscribed by 65-4127a(d) impairs no explicit constitutional guarantee and cannot be said to be incapable of any valid application. A law capable of valid application to any given set of circumstances is not unconstitutionally vague. See Boatright v. Kansas Racing Comm'n., 251 Kan at 245.
We do not agree with defendant’s premise that 65-4127a(d) is reasonably susceptible to more than one interpretation. We base our opinion upon a reading of the statute, legislative history, and the judicial opinions of other jurisdictions that have considered this very issue under comparable statutes.
We believe that 65-4127a(d) is only subject to one construction that is reasonable. It is intended to provide enhanced punishment for. offenders who commit certain acts prohibited under 65-4127a(b) if committed within 1,000 feet of school property. Any other construction ignores consideration of the harm to be prevented — drug dealing within the protected school zone.
Legislative history also does not support Penny’s interpretation of the statute. In State v. Swafford, 20 Kan. App. 563, 890 P.2d 368 (1995), this court considered whether the defendant’s knowledge of the proximity of a school to the location of the drug sale was an element of the offense. In its discussion, this court had the following to say about the legislative history of the statute: “The substance of the statute and the legislative history cited by Swafford show that [K.S.A. 1993 Supp. 65-4127a(d)] was modeled after similar statutes enacted in many other jurisdictions. The original model is the federal ‘schoolyard statute,’ 21 U.S.C. § 860 (1990).” 20 Kan. App. 2d at 566. .
The court went on to state:
“The legislative history cited by Swafford reveals that, like the federal schoolyard statute on which it was modeled, 65-4127a[d] was intended to create drug-free school zones. It was designed to protect young people from drug use and the violence and other negative influences that accompany drug dealing. Children are exposed to these negative influences when drug deals are conducted near schools regardless of whether the dealers know they are within 1,000 feet of a school.
“Requiring proof that Swafford knew a school was within 1,000 feet could impose an onerous burden on police and prosecutors, which would be contrary to the clear purpose of the statute.” 20 Kan. App. 2d at 567.
It is axiomatic that a drug deal occurs when a dealer buys drugs, not just when a dealer sells drugs. It was the clear intent of the Kansas Legislature to establish drug-free zones in and around schools. Penny’s suggested construction of 65-4127a(d) is wholly inconsistent with legislative intent that has been clearly expressed. Also, just as in Swafford, such a construction would place an onerous burden on police and prosecutors.
We have also reviewed decisional law from other jurisdictions that have statutes similar to 65-4127a(d). We will not extend this opinion with a detailed analysis of those cases. However, decisions of the federal circuit courts that have considered this same issue under the comparable federal schoolyard statute, 21 U.S.C. § 860 (1994), are considered persuasive. Each of the circuit courts that have considered this issue have concluded that mere possession with intent to sell elsewhere is sufficient. See U.S. v. Lloyd, 10 F.3d 1197, 1218 (6th Cir. 1993), cert. denied 128 L. Ed. 2d 213, 128 L. Ed. 2d 893, 130 L. Ed. 2d 147 (1994); U.S. v. McDonald, 991 F.2d 866, 868-69 (D.C. Cir. 1993); U.S. v. Rodriguez, 961 F.2d 1089, 1091-93 (3d Cir. 1992); U.S. v. Wake, 948 F.2d 1422, 1429-31 (5th Cir. 1991), cert. denied 504 U.S. 975 (1992).
We hold 65-4127a(d) to be neither vague nor ambiguous and agree with the district court’s interpretation of the statute.
There is one additional issue that we wish to address. Penny also contends that the district court usurped the authority of the jury to decide the facts of the case by altering the verdict form after being informed the jury could not agree on a unanimous verdict under count I of the information. The defendant does not contend the verdict form as ultimately amended was inconsistent with the district court’s instructions of law. We construe his concern to be that the district court’s amendment of the verdict form was tantamount to an impermissible comment upon the evidence.
Our standard of review is abuse of discretion:
“Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable, which is another way of stating that discretion is abused only if no reasonable person would take the view adopted by the trial court. If reasonable persons could differ regarding the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion.” State v. Warden, 257 Kan. 94, 116, 891 P.2d 1074 (1995).
Penny’s argument is without merit. The presiding juror made it clear to the trial judge that the jury was confused because the verdict form was inconsistent with the modified instructions. The judge changed the wording of the verdict form to comport with the court’s modified instructions of law. The district court neither made any factual determination nor solved any factual dispute by its amending of the verdict form. Because we have decided the district court correctly interpreted 65-4127a(d), it did not err in amending the verdict form.
Aifirmed. | [
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Marquardt, J.;
Brian Fitzgerald and Gregory Pederzani proposed an ordinance (Proposed Ordinance) under K.S.A. 12-3013. On August 19, 1994, the City of Wichita (City) filed a declaratory judgment action, seeking a determination that the Proposed Ordinance is not the proper subject of initiative and referendum because it is: (1) administrative; (2) beyond the power of the City to adopt; and (3) unconstitutional. Fitzgerald and Pederzani answered and counterclaimed, stating that the City’s arguments, were meritless and requesting that the district court order the City to either adopt the Proposed Ordinance or submit it to the electorate. The district court ruled in favor of Fitzgerald and Pederzani, holding that the Proposed Ordinance is legislative. The City appeals.
The Proposed Ordinance is as follows:
“ORDINANCE NO__
“An Ordinance relating to the rights of individuals to possess and obtain firearms within the City of Wichita, Kansas:
“Be it ordained by the governing body of the City of Wichita, Kansas:
“SECTION I: Any Ordinance heretofore enacted by the governing body of the City of Wichita, Kansas, which conflicts with the terms of this Ordinance is hereby repealed.
“SECTION II: The City of Wichita shall have no Ordinance, Law, or Regulation, which is more restrictive of an individual’s right, privilege, or ability to possess, transfer, sell, purchase, store, transport, rent, or use a firearm, than the Kansas General Criminal Statutes, as set forth in the Kansas Statutes Annotated and Amendments thereto, or Federal Law, as set forth in the United States Code.”
The Proposed Ordinance met the form and procedural requirements of K.S.A. 12-3013(a). The election officer certified that the petition was signed by at least 25 percent of the electors who had voted in the immediately preceding regular city election. The City neither adopted the Proposed Ordinance nor set it for election as required by K.S.A. 12-3013(a).
CLASSIFICATION OF THE PROPOSED ORDINANCE
The City argues that the Proposed Ordinance is administrative rather than legislative and, therefore, not subject to adoption under the initiative and referendum statute. This issue requires the court to interpret the statute governing initiative and referendum. Because construction of a statute is a question of law, this court’s review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
“The initiative and referendum statute, K.S.A. 12-3013, provides a procedure whereby a city’s electors may place legislative action of the city governing body before a vote of the people.” Rauh v. City of Hutchinson, 223 Kan. 514, 519, 575 P.2d 517 (1978). An administrative ordinance may not be adopted through citizen initiative and referendum. See K.S.A. 12-3013(e)(l).
In City of Wichita v. Kansas Taxpayers Network, Inc., 255 Kan. 534, 539-40, 874 P.2d 667 (1994), the court summarized the guidelines for determining whether an ordinance is administrative or legislative as set forth in City of Lawrence v. McArdle, 214 Kan. 862, Syl. ¶¶ 2-4, 522 P.2d 420 (1974):
“1. An ordinance that makes new law is legislative; while an ordinance that executes an existing law is administrative. Permanency and generality are key features of a legislative ordinance. McArdle, 214 Kan. 862, Syl. ¶ 2.
“2. Acts that declare public purpose and provide ways and means to accomplish that purpose generally may be classified as legislative. Acts that deal with a small segment of an overall policy question generally are administrative. McArdle, 214 Kan. 862, Syl. ¶ 3.
“3. ‘Decisions which require specialized training and experience in municipal government and intimate knowledge of the fiscal and other affairs of a city in order to make a rational choice may properly be characterized as administra- = tive, even though they may also be said to involve the establishment of a .• .policy,’ McArdle, 214 Kan. 862, Syl. ¶ 4.
“4. No one act of a governing body is likely to be solely administrative or legislative, and the operation of the initiative and referendum statute is restricted ‘to measures which are quite clearly and fully legislative and not principally i ■ executive or administrative.’ McArdle, 214 Kan. 862, Syl. ¶ 1.”
“The determination of whether an ordinance is legislative or administrative ‘is to be based upon the factual situation in each case.’ ” Kansas Taxpayers Network, 255 Kan. at 539.
In order to protect the efficient administration of a city, administrative matters are not subject to initiative and referendum. See McArdle, 214 Kan. at 866, 871; Lewis v. City of South Hutchinson, 162 Kan. 104, 125, 174 P.2d 51 (1946).
The district court reviewed the guidelines listed in McArdle and concluded that the Proposed Ordinance was “principally legislative.”
There is no Kansas case that deals with the issues presented herein.
The Proposed Ordinance relates “to the rights of individuals to possess and obtain firearms.” It repeals ordinances and seeks to restrict the adoption of new ordinances.
Applying the criteria set forth in Kansas Taxpayers Network, 255 Kan. at 539-40, to the Proposed Ordinance, the Proposed Ordinance appears to have many characteristics of both legislative and administrative ordinances. Evaluation of the Proposed Ordinance on its face is not sufficient.
Because many of the affected ordinances, as cited by the City, include many subjects other than firearms, an initial determination must be made to identify which specific ordinances are affected. It is also necessary to make an exhaustive search of the firearms statutes in both the United States Code and the Kansas General Criminal Statutes and, after identification, make a quantitative determination of whether the Wichita ordinance is more or less restrictive than the state or federal statutes.
The City argues that because the Proposed Ordinance repeals administrative ordinances, it is an administrative ordinance. This argument raises two questions, both of which are disputed: (1) To what degree should the court look at whether the ordinances to be repealed are administrative or legislative in determining whether the Proposed Ordinance is administrative or legislative? (2) If the court should look to the ordinances to be repealed, are the ordinances and regulations to be repealed by the Proposed Ordinance administrative?
The district court did not address the repeal argument even though it was raised in the City’s trial brief.
The City’s procedure when repealing an existing code section is to “[rjepeal the code section specifically,” citing as an example: “§3.04.020 of the_Municipal Code is hereby repealed.” Wich-
ita Code, “Procedure for Drafting Ordinances” (1993). Without such specificity, there is no way of telling which ordinances will be affected. Each ordinance that will be repealed by a proposed ordinance must be specified in the proposed ordinance.
In Kansas Taxpayers Network, 255 Kan. at 535, 538-39, the court considered whether a proposed ordinance was administrative by looking at the ordinance that the proposed ordinance would repeal. The ordinance proposed in Kansas Taxpayers Network was exclusively a repealing ordinance and repealed one specific ordinance. The procedural posture of Kansas Taxpayers Network was similar to the instant action. A group had initiated the proposed ordinance through K.S.A. 12-3013. The City of Wichita filed a declaratory judgment action. The district court in Kansas Taxpayers Network ruled that the statute was administrative, and the Kansas Supreme Court agreed. The Kansas Supreme Court stated: “Both parties agree that in determining whether a repealing ordinance is administrative or legislative, this court should look to the ordinance that the electors seek to repeal. We agree. See, e.g., Lewis v. City of South Hutchinson, 162 Kan. 104, 125, 174 P.2d 51 (1946).” Kansas Taxpayers Network, 255 Kan. at 539. The Kansas Taxpayers Network court held that because the ordinance to be repealed was administrative, the repealing ordinance was also administrative. 255 Kan. at 541. The parties herein disagree as to whether the ordinances that would be repealed are administrative; however, because Fitzgerald and Pederzani have failed to cite a single or dinance that will be repealed, their argument is without any support.
The City identified at least 43 ordinances that would be repealed if the Proposed Ordinance was adopted. The ordinances identified by the City cover such subjects as the sale of firearms, security at airports, zoning, etc. Fitzgerald and Pederzani did not identify any ordinance; they merely state that “ ‘regulations,’ by their very nature considered to be administrative, fall victim to any new change in legislative policy, whether specifically earmarked at the outset or left to be discovered later as casualties.” We disagree. Such a piecemeal, uninformed approach to administration of the affairs of a city would create utter chaos. We hold that when a proposed ordinance repeals an existing ordinance, the proposed ordinance must identify each ordinance that will be repealed.
For example, Ordinance 33-036 (Wichita Code § 9.22.120 [1993]) regulates the operation, maintenance, and control of the Wichita airport. Ordinance 33-036 states: “No person except authorized peace officers or armored car, post office, customs, express and air carrier employees, or members of the armed forces of the United States authorized thereby, shall carry any firearms or explosives on the Airport without permission from the Board or Airport Manager.” The “rules and regulations” require specialized training and experience in municipal government and the management of an airport. Ordinance 33-036 does not create an airport or make any broad policy statements about airports. Instead, Ordinance 33-036 is administrative because it provides a means to accomplish an established legislative purpose — airport safety.
The City fists several zoning regulations that would be repealed by the Proposed Ordinance, such as Ordinance 27-660 (codified in various sections of Chapter 28.04 of the Wichita Code). On zoning issues, as with other aspects of characterizing a proposed ordinance, the facts and the jurisdiction determine whether the proposed ordinance is legislative or administrative.
Many jurisdictions hold that initiative and referendum is not available to change zoning ordinances. The rationale for many of these decisions is that zoning requires a master plan and uniformity. Submitting zoning changes to the electors could well destroy the veiy purpose of zoning where such changes are in conflict with the general scheme fixing the uses of property in designated areas. See Smith of Township of Livingston, 106 N.J. Super. 444, 454, 256 A.2d 85 (1969).
However, zoning has been held to be the proper subject of initiative or referendum. Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 673, 49 L. Ed. 2d 132, 96 S. Ct. 2358 (1976) (noting that the Ohio Supreme Court had determined that a city council’s action of rezoning was legislative in nature).
The determination of whether a zoning ordinance is administrative or legislative follows the general rule. Thus, where a comprehensive zoning ordinance has been passed and the power to change certain zoning or grant exemptions has been committed to the mayor or city council, the zoning of particular property is an administrative matter. See Forman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533, 537-38, 516 P.2d 1234 (1973). Conversely, the passing of the general comprehensive zoning plan is typically legislative. See State ex rel. Hickman v. City Council, 690 S.W.2d 799, 802 (Mo. App. 1985). See generally 42 Am. Jur. 2d, Initiative and Referendum § 12, p. 662.
In Golden v. City of Overland Park, 224 Kan. 591,597, 584 P.2d 130 (1978), the court discussed zoning and distinguished legislative from quasi-judicial functions:
“A city, in enacting a general zoning ordinance, or a planning commission, in exercising its primary and principal function under K.S.A. 12-704 in adopting and in annually reviewing a comprehensive plan for development of a city, is exercising strictly legislative functions. When, however, the focus shifts from the entire city to one specific tract of land for which a zoning change is urged, the function becomes more quasi-judicial than legislative. While policy is involved, such a proceeding requires a weighing of the evidence, a balancing of the equities, an application of rules, regulations and ordinances to facts, and a resolution of specific issues. [Citations omitted.]” (Emphasis added.)
In the instant action, the repeal of zoning ordinances is not directed at a specific tract of land. Rather, the Proposed Ordinance reflects a policy of freeing firearms from restrictions which include zoning. The repealing effects of the Proposed Ordinance would interfere with the comprehensive zoning plans of the City and, as such, the Proposed Ordinance is administrative.
The City references several ordinances that would be repealed by the Proposed Ordinance that involve economic and commercial regulation, as well as zoning. Ordinance 32-916 (Wichita Code § 5.04.020 [1993]) prohibits the use of sidewalks, streets, alleys, or parks for advertising. Ordinance 33-071 (Wichita Code § 10.04.131 [1993]) provides for the issuance of a permit to allow the sale of merchandise on a public sidewalk. Ordinance 33-870 (Wichita Code §§ 3.95.010-3.95.040 [1993]) regulates transient and itinerant merchants and requires them to obtain a license.
In City of Newport v. Gugel, 342 S.W.2d 517, 520 (Ky. 1960), the court held that an ordinance setting minimum salaries for police and fire department personnel was administrative because it only addressed one portion of a previously adopted general plan. The Gugel court reasoned:
“To permit the electorate'to initiate piece-meal measures affecting the fiscal affairs of the city without regard for the overall fiscal program, or measures not embodying a basic plan or policy for the entire area of government activity upon which the measure touches, could result in destruction of the efficient administration of the affairs of the city, and we do not believe the initiative statute so intends.” 342 S.W.2d at 520.
In McArdle, 214 Kan. at 868-71, the court discussed and approved the Gugel court’s reasoning.
In Lewis, 162 Kan. at 125, the court quotes relevant language from 7 McQuillin, Municipal Corporations § 351c:
“ ‘ “The referendum is usually held ‘applicable to all ordinances and resolutions which constitute an exercise of legislative power.’ That is, it was designed to be directed against ‘supposed evils of legislation alone.’ ‘To allow it to be invoked to annul or delay executive conduct would destroy the efficiency necessary to the successful administration of the business affairs of a city. In many cases it would entirely prevent the exercise of the executive power necessary to cany out the acts determined upon by the legislative department.’
While the Proposed Ordinance describes a broad policy, it would repeal numerous administrative ordinances. The Proposed Ordinance would destroy many of Wichita’s administrative regulations involving zoning, the airport, sales, advertising, and others. The rationale espoused in Gugel, and expressly approved in McArdle, justifies classifying the Proposed Ordinance as administrative because the Proposed Ordinance would obliterate numerous comprehensive schemes of the Wichita municipal code. The effect of the Proposed Ordinance on the administrative scheme of the City cannot be ignored.
Because of the above analysis, we do not reach the City’s other arguments.
In summaiy, a proposed ordinance that will repeal existing ordinances must state specifically each ordinance that will be repealed as a result of the adoption of the proposed ordinance. A proposed ordinance must be classified as administrative if its adoption would repeal an administrative ordinance.
We, therefore, reverse the trial court and find that the Proposed Ordinance is administrative and not subject to initiative and referendum. | [
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Royse, J.:
David W. Peterson appeals from his convictions on one count each of robbery and aggravated burglary. He alleges error in the jury instructions and challenges the legality of his departure sentence.
Peterson contracted to do odd jobs around the home of Leland and Ruby Peck. Although Leland was dissatisfied with Peterson’s work and although Peterson did not complete all of his assigned tasks, Ruby paid him the agreed amount of $775.
Peterson returned to the Pecks’ home late in the evening on October 4, 1993. He knocked on the door and demanded to be paid for his work. Peterson entered the house and went to Ruby’s bedroom where he repeated his demand for payment. When Leland called the police, Peterson left. After the police had left, Leland discovered his wallet was missing. The wallet contained a key to the house. The empty wallet was found the next day at a local school.
Early the following morning, October 5, 1993, Ruby heard someone unlocking her front door. Peterson entered and again demanded money. Peterson headed for Ruby’s bedroom. After a struggle, Peterson jerked Ruby’s purse out of her hands and left. Ruby reported this incident to the police, telling them her purse had contained $916. Peterson was arrested later in the day. He had $925 in his possession.
As a result of the events of October 4, 1993, Peterson was charged with aggravated burglary and misdemeanor theft. He was charged with robbery and aggravated burglary for the October 5 events. Following a jury trial, Peterson was acquitted on the first two counts and convicted on the robbery and aggravated burglary counts arising out of the October 5 incident.
Peterson s first argument on appeal is that the district court erred in giving the following jury instruction: “You may consider the testimony of witnesses, an article or document marked as an exhibit, or any other matter admitted in evidence such as a stipulation. You should consider only testimony and exhibits admitted into evidence.” At trial, Peterson argued that this instruction erroneously prevented the jury from considering the lack of evidence against him. Peterson asked that the district court give the PIK instruction.
“ “When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.’ State v. Whitaker, 255 Kan. 118. Syl. ¶ 3, 872 P.2d 278 (1994).” State v. Caldwell, 21 Kan. App. 2d 466, 474, 901 P.2d 35, rev. denied 258 Kan. 860 (1995).
Although the district court did not explain why it modified the PIK instruction, the instruction given by the district court is similar to the pattern instruction, PIK Grim. 3d 51.04: “In your fact finding you should consider and weigh everything admitted into evidence. This includes testimony of witnesses, admissions or stipulations of the parties, and any admitted exhibits. You must disregard any testimony or exhibit which I did not admit into evidence.” The Supreme Court has commented that pattern instructions should be the starting point in the preparation of jury instructions in criminal cases. Unless the particular facts of the case require modification of a PIK instruction, “PIK instructions and recommendations should be followed.” State v. Pioletti, 246 Kan. 49, Syl. ¶ 2, 785 P.2d 963 (1990). “[A] trial court should use.[PIK.instructions] unless there is some compelling and articulable reason not to do so.” State v. Wilson, 240 Kan. 606, 610, 731 P.2d 306 (1987). ' .
Peterson focuses on the difference between the last sentence of the instruction given and the last sentence of PIK Crim. 3d 51.04. He argues that by telling the jury, “You should consider only testimony and exhibits admitted into evidence,” the district court precluded the jury from considering the lack of evidence against him. This argument is without merit. •
First, the challenged instruction, read in its entirety, indicates the jury should not consider testimony and exhibits which were not admitted. Second, the challenged instruction contains a correct statement of the law. See State v. Reser, 244 Kan. 306, 316, 767 P.2d 1277 (1989); see also State v. Owens & Carlisle, 210 Kan. 628, 630, 504 P.2d 249 (1972) (stating the “usual admonition that the juiy should consider only the testimony admitted into evidence”). Third, and perhaps most important, when the. challenged instruction is read in conjunction with the rest of the instructions, it is clear the jury could not have been misled by it. The district court instructed the jury that the State bears the burden' of proof and that it must establish its claims beyond a reasonable doubt. The elements of each charged crime were detailed. The jury was instructed on determining the weight and credit to be given to each witness. The court also instructed the jury to construe each instruction in light of, and in harmony with, the other instructions. The instructions taken as a whole did not prevent the jury from considering whether the State had failed to present sufficient evidence to meet its burden of proof.
Although the challenged instruction could have been phrased better, the district court did not commit reversible error by giving it.
Peterson makes two challenges to his sentence. First, he argues the district court departed to an extent not permitted by the Kansas Sentencing Guidelines. Second, he contends the district court failed to state its reasons for departing at the sentencing hearing.
Both of Peterson’s convictions are severity level 5 crimes, and Peterson has a criminal histoiy of categoiy E. The 5-E grid block carries a presúmptive sentence of 46 to 51 months’ imprisonment. The district court treated Peterson’s aggravated burglary conviction as the primary conviction. The court determined that a departure was appropriate for the aggravated burglary conviction, and it imposed a base sentence of 102 months’ imprisonment for that conviction. Thé. .district court also sentenced Peterson to serve a non-base departure sentence of 68 months in prison for the robbery conviction, doubling the maximum presumptive sentence of 34 months from the 5-1 grid block. Finally, the district court ordered the sentences to run consecutively, for a controlling term of 170 months.
Peterson first argues this sentence violated K.S.A. 1993 Supp. 21-4720(b)(4), which provides in part: “The total sentence assigned for a current conviction event cannot exceed twice the base sentence.” This issue involves interpretation of a statute, a question of law subject to unlimited appellate review.- See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
Peterson’s argument is not persuasive. K.S.A. 1993 Supp. 21-4720(b) - governs the imposition of consecutive presumptive sentences. A separate provision governing consecutive departure sentences is set forth in K.S.A. 1993 Supp. 21-4720(c). That subsection states:
“(c) The following shall apply for a departure from the presumptive sentence based on aggravating factors within the context of consecutive sentences:
(2) When a departure sentence is imposed for any of the individual crimes sentenced consecutively, the imprisonment term of that departure sentence shall riot exceed twice the maximum presumptive imprisonment term that may be imposed for that crime.
■ - (3) The total imprisonment term of the consecutive sentences, including the imprisonment term for the departure crime, shall not exceed twice the maximum presumptive imprisonment term of the departure sentence following aggravation.”
K.S.A: 1993 Supp. 21-4720(c)(3) has been called the “double-double rule.” It authorizes a sentencing judge to impose maximum consecutive sentences up to twice the departure sentence imposed for the primary crime. Kansas Sentencing Guidelines Desk Reference Manual, pp. 31-32 (1995).
Peterson’s aggregate consecutive sentence of 170 months is less than twice the 102-month sentence imposed for his base crime. This is a legal sentence under the “double-double rule.”
Peterson’s final argument is that the district court failed to state its reasons for departing at the sentencing hearing. K.S.A. 1993 Supp. 21-4716(a) provides: “If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” See State v. Gideon, 257 Kan. 591, Syl. ¶ 21, 894 P.2d 850 (1995). A review of the record in this case shows the district court did not state its reasons for imposing a departure sentence. The sentence must therefore be vacated and the case remanded for resentencing.
Vacated and remanded. | [
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Pierron, J.:
Shirley Hall appeals the district court’s grant of summary judgment in favor of Ruth O. James and Dwight Hart (collectively referred to as proponents). Hall argues the will and codicil admitted to probate by proponents were the product of undue influence. We affirm the granting of summary judgment.
Esther Brodbeck executed a will on May 18,1988. She executed a second will, revoking all previous wills, on January 15, 1992, and enacted a first codicil on October 15,1993. Brodbeck died on December 28,1993. She had survived her husband and they had never had children. On January 6,1994, James, executor of the 1992 will, filed a petition for probate of Brodbeck’s 1992 will and first codicil.
Brodbeck had resided in the Pines apartment complex where James was manager. James and Brodbeck became close friends after Brodbeck’s husband died, and James had helped Brodbeck over the years. James knew she was the executor of Brodbeck’s 1992 will and that she had been given power of attorney by Brodbeck, but contended she had no knowledge that she was a beneficiary under the will. James had accompanied Brodbeck, at Brodbeck’s expense, to Houston for oncological treatment. Brodbeck had loaned James $500 in 1991, and James’ handwriting appears on this entry in Brodbeck’s check registry. Hart had been Brodbeck’s hairdresser for many years and had frequently driven her on errands. James and Hart had accompanied Brodbeck to various medical appointments.
Hall, Brodbeck’s niece, stated that Brodbeck suffered from extensive health problems during the period surrounding the execution of the 1992 will. Hall submitted medical records demonstrating that Brodbeck was diagnosed with ocular melanoma, eye cancer, about the time she had executed the 1992 will. The appellate record indicates that Hall had other health problems as well and had been taking Halcion for approximately a month prior to the execution of the 1992 will.
Hall contested the 1992 will because she had been disinherited. Under the 1988 will, Hall was to receive half of Brodbeck’s tangible personal property, unless a list existed to dispose of all or part of it, and half of the residue of Brodbeck’s estate. James Zoss, Brodbeck’s great-nephew, was to receive the remaining half of Brodbeck’s tangible personal property and residue. Hart was to receive any car owned by Brodbeck at the time of her death. Beverly Lindsey, Brodbeck’s lifetime friend, was nominated as the executor for Brodbeck’s estate.
Under the 1992 will, the executor was changed to James. James and Hart were the only beneficiaries and were to take equal shares of Brodbeck’s personal and household effects and residue of the estate. Hart also received any car owned by Brodbeck at the time of her death. The codicil provided that any beneficiary who contested the probate of Brodbeck’s will would forfeit all interest to her property.
Hall filed a defense to the petition filed by James in which she alleged that Brodbeck was under the control and undue influence of James and Hart during the execution of the 1992 will and codicil. Hall also alleged that Brodbeck was under the insane delusion that Hall and Lindsey no longer loved her and that the delusions were brought about because of Brodbeck’s advancing age, health problems, medication, and the undue influence of James and/or Hart. Hall cross-petitioned to admit Brodbeck’s 1988 will to probate.
At the close of the discovery period, proponents filed a petition for summary judgment. At Hail’s request, the district court granted an extended discovery deadline and additional time to file a response to the motion. Hall filed a 317-page response in opposition to the motion for summary judgment. After a hearing, the district court took the motion under advisement.
By letter dated September 13, 1994, the district court entered summary judgment on behalf of James and Hart. In a two-page letter, the district court stated that although summary disposition would result in significant economy to the estate, it should be taken with caution in probate matters, and it was the district court’s determination whether material facts still remained at issue in the case. The district court then granted the motion for summary judgment, admitted the 1992 will and codicil into probate, and requested that proponents prepare a journal entiy and present it for filing within 10 days.
Additionally, the district court’s letter stated: (1) The court had found analogous to these circumstances the case of Crooks v. Greene, 12 Kan. App. 2d 62, Syl. ¶¶ 2-3, 736 P.2d 78 (1987); (2) Hall had the burden of proving Brodbeck’s improper testamentary capacity or undue influence by the legatees and devisees; (3) Hall’s failure to comply with Supreme Court Rule 141 (1995 Kan. Ct. R. Annot. 160) had made the district court’s job difficult; (4) Hall had failed to make a sufficient showing on any essential element to which she had the burden" of proof; and (5) the in terrorem clause in the codicil was not material to the summary judgment motion.
Counsel for proponents prepared a summary judgment journal entry. The district court signed the journal entry, and it was filed on October 11, 1994. The certificate of service stated that counsel for proponents hand-delivered a copy of the journal entry to Hall’s attorney, but it does not indicate the date when service occurred.
We first address the issue of whether summary judgment should be a remedy available to the parties where a case presents probate matters similar to those currently before the court. Both parties agree that the Kansas appellate courts have not addressed the issue of whether summary judgment can be granted when a will is attacked on grounds of undue influence.
Hall interprets the absence of a Kansas decision to mean that it is obvious Kansas trial courts have found it inappropriate to grant summary judgment in will contests involving undue influence. Hall supports tins theory through a characterization of undue influence: “As a rule undue influence is not proclaimed from the housetop, but is hidden like a candle beneath a bushel and concealed like fraud and deception, only appearing through carelessness and unguarded openings, but ever present and potential.” Coldwell v. Coldwell, 228 S.W. 95, 102 (Mo. 1920). Hall explains that cross-examination has long been an important tool in removing or exposing openings in the bushels that hide the flames of undue influence and that by granting summary judgment, the opportunity for cross-examination is denied. Lastly, Hall argues that summary judgment results in a “trial by affidavits” and is inappropriate for a will contest involving undue influence. See Richards v. Bryan, 19 Kan. App. 2d 950, Syl. ¶ 1, 879 P.2d 638 (1994).
We agree with proponents and find it is a well-established principle that summary judgment is available to plaintiffs and defendants in all forms and kinds of civil matters. K.S.A. 60-256 does not state any type of civil matter that is precluded from summary judgment. However, the district court is still required to make the proper findings in order to grant summary judgment and is subject to the well-founded principles for entering it. We look with favor upon the numerous cases from other states cited by proponents holding that summary judgment can be granted when a will is attacked on the ground of the testator s lack of mental capacity or the presence of undue influence if the will contestants fail to support their opposition to the summary judgment motion with sufficient facts showing there was a genuine issue for trial. See In re Estate of Sherer, 10 Ariz. App. 31, 455 P.2d 480 (1969); Estate of Niquette, 264 Cal. App. 2d 976, 71 Cal. Rptr. 83 (1968); Glenn v. Mann, 234 Ga. 194, 214 S.E.2d 911 (1975); Boone v. Estate of Nelson, 264 N.W.2d 881 (N.D. 1978); In re Wilsons Estate, 399 P.2d 1008 (Wyo. 1965).
We make specific mention of In re Wilson’s Estate. In Wilson, the court affirmed the trial court’s granting of summary judgment, thus denying probate of an instrument offered as a holographic will and allowing the probate of an attested will and codicil. On appeal, the petitioner argued that since there was a dispute as to undue influence, the trial court was precluded from entering summary judgment. The court extensively discussed the granting of a summary judgment in this situation:
“Considerations of the trial court, on a motion for summary judgment, go beyond the pleadings, and the mere assertion of a claim such as undue influence is not sufficient to prevent entry of summary judgment. We have consistently held that allegations of a complaint are not sufficient to show the existence of a genuine issue of fact, where the alleged basis for relief is challenged by statements of fact in affidavits and other forms of evidence in support of a motion for summary judgment. Lieuallen v. Northern Utilities Company, Wyo., 368 P.2d 949, 951; Hinkle v. Siltamaki, Wyo., 361 P.2d 37, 37-38, 41.
“As pointed out in Lieuallen, if allegations of the complaints are controverted by affidavits and other evidence tending to show the allegations are not true, it thereupon becomes incumbent upon plaintiff to set forth ‘specific facts’ in opposition, if plaintiff’s contention (or allegations of the complaint) are to remain a genuine issue of fact for trial. Rule 56(e), W.R.C.P.
“In the case at bar petitioner continues to insist that attorney William D. Redle had opportunity to influence the testatrix; that testatrix was susceptible to being influenced; and that undue influence could be ‘inferred’ from the provisions of the will itself.
“We fail to find anything in the will admitted to probate from which undue influence could be inferred. As we said in In re Draper’s Estate, Wyo., 374 P.2d 425, 431-32, it is not sufficient to show that a party benefited by a will had the motive and the opportuniiy to exert undue influence; but there must be evidence that he did exert it and did so control the actions of the testator that the instrument is not really the will of the testator.
“Not only did contestant fail to come forward, in connection with the motion for summary judgment, with affidavits, testimony or other evidence tending to show specific facts relative to actions on the part of Redle which would constitute undue influence — or from which undue influence could be inferred — but even now there is no suggestion of anything which Redle did toward the testatrix which would constitute evidence that he did in fact exert undue influence upon testatrix.” 399 P.2d 1009-10.
Similarly in Glenn v. Mann, 234 Ga. 194, the Georgia Supreme Court affirmed the Superior Court’s grant of summary judgment to proponents of a will where allegations of undue influence were based on no facts other than the closeness of the relationship between the testator and a proponent, who was a beneficiary under the will. The court explained the evidence presented by die con testant showed the two beneficiaries had the opportunity to exercise or to attempt to exercise undue influence on the testatrix at the time the will was signed. However, in .upholding summary judgment, the court ruled there was no evidence demonstrating they did in fact exercise undue influence. Thus, the court found no issue which would necessitate a trial. 234 Ga. at 203.
The district court in the present case stated in its letter opinion to counsel that the case of Crooks v. Green, 12 Kan. App. 2d 62, seemed most analogous to the present case.
“The plain language of K.S.A. 60-256(c)' mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such, a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof.” 12 Kan. App. 2d 62, Syl. ¶ 2.
We therefore find that in probate matters similar to those presently before the court, summary judgment is appropriate when the proper finding is made by the district court. Under the likes of In re Wilson's Estate, 399 P.2d 1008, when a will is attacked on the grounds of undue influence, summary judgment can be granted when the will contestants fail to support their opposition to the summary judgment motion with sufficient facts showing there was a genuine issue for trial.
We do note the case cited at oral argument, Matter of Fuller, 45 Misc. 2d 353, 256 N.Y.S.2d 860 (1965), which seems to throw doubt on the ability of a trial court to grant summary judgment on the issue of undue influence in a will contest. However, more recent New York cases, Matter of McGurty, 151 Misc. 2d 42, 571 N.Y.S.2d 848 (1990), and Matter of Bartel, 161 Misc. 2d 455, 613 N.Y.S.2d 798 (1994), acknowledge summary judgment maybe appropriate if there are adequate facts to support it.
Hall argues the district court erred in granting summary judgment because reasonable minds could differ as to the conclusions on the issue of undue influence presented in the record. Specifically, Hall states the record contains evidence that proponents had a confidential relationship with Brodbeck and that suspicious circumstances existed surrounding the execution of the 1992 will and codicil.
Proponents counter that Hall failed to make a sufficient showing that Brodbeck was subject to undue influence or under insane delusions and that, as a matter of law, the district court correctly entered summary judgment in their favor.
Our review of a district court’s granting of summary judgment is well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c). The trial court is required to resolve all facts and inferences which may be reasonably drawn from the evidence in favor of the party against whom summary judgment is sought. On appeal, we apply the same rule, and where we find that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. See Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994).
In complying with the above-cited principles, proponents had the initial burden of establishing there was no genuine issue of material fact and that they were entitled to judgment as a matter of law. In In re Estate of Sherer, 10 Ariz. App. 31, the court found that the proponent of the will satisfied this burden by filing an affidavit denying any undue influence on her part, as well as affidavits from the attorney who drafted the will and a witness to the will. Applying Sherer to the present case, proponents satisfied their initial burden of establishing that Brodbeck was not under any undue influence or insane delusions when she executed the 1992 will, by submitting sworn affidavits from numerous people.
We believe the affidavit from Robert Lytle, Brodbeck’s attorney for 30 years, carries much weight in this case. Lytle prepared the 1988 will, the 1992 will, and the codicil. Lytle stated Brodbeck was of sound mind and mentally sharp when she executed the 1992 will, and she related to him that Hart, his wife, and children were just like children to her and James was a special friend. She wanted them to share her property when she died. Lytle stated neither Hart nor James were aware they had been named in Brodbeck’s will.
Proponents also submitted affidavits from James, Hart, Brodbeck’s treating physician, her oncologist, her pastor, and other close friends and associates, all of whom attested to her testamentary capacity and the lack of any undue influence exerted by James or Hart.
Hall correctly points out that a summary judgment proceeding should not be a “trial by affidavits” and that the parties must be afforded a trial when there is a good faith dispute over the facts. See Richards, 19 Kan. App. 2d 950, Syl. ¶ 1. See also In re Estate of Sherer, 10 Ariz. App. at 37. However, a party opposing a motion for summary judgment cannot put forth mere allegations. K.S.A. 60-256(e) provides that when a moving party has supported its motion for summary judgment, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but must set forth specific facts showing that there is a genuine issue for trial. See Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, 762, 863 P.2d 355 (1992). Additionally, a party cannot evade summary judgment on the mere hope that something may develop at the trial. See Essmiller v. Southwestern Bell Tel. Co., 215 Kan. 74, 77, 524 P.2d 767 (1974); Gray v. Ray Gill, Frontier Industries, Inc., 208 Kan. 95, Syl. ¶ 1, 490 P.2d 615 (1971); Meyer, Executor v. Benelli, 197 Kan. 98, Syl. ¶ 1, 415 P.2d 415 (1966). Therefore, we are concerned with the issue of whether Hall set forth specific facts demonstrating there was a genuine issue of fact requiring a trial.
Hall relies heavily on In Re Estate of Bennett, 19 Kan. App. 2d 154, 165, 865 P.2d 1062 (1993). Bennett established a two-prong test to determine whether undue influence was exerted over a decedent. Under the first prong, it must be shown that the person who is alleged to have exerted the undue influence was in a confidential and fiduciary relationship with the decedent. 19 Kan. App. 2d at 165. The second prong concerns the existence of suspicious circumstances to raise questions with the testamentary disposition. 19 Kan. App. 2d at 169.
Hall argues that reasonable minds could differ as to whether a confidential relationship existed in this case and therefore summary judgment was improper. Kansas case law has been reluctant to provide an express definition of “confidential relationship” because of the necessity of deciding each set of facts on a case-by-case basis. The court in Brown v. Foulks, 232 Kan. 424,430-31, 657 P.2d 501 (1983), explained:
“The term ‘fiduciary relation’ has reference to any relationship of blood, business, friendship, or association in which one of the parties reposes special trust and confidence in the other who is in a position to have and exercise influence over the first parly. In Denison State Bank v. Madeira, 230 Kan. 684, 640 P.2d 1235 (1982), it was held that whether or not a confidential or fiduciary relationship exists depends on the facts and circumstances of each individual case.”
Additionally, Bennett also provided that the question of whether a fiduciary or confidential relationship exists is a question of fact. The court in Olson v. Harshman, 233 Kan. 1055, 1057, 668 P.2d 147 (1983), expressed the same sentiment:
“ ‘The existence or non-existence of a confidential or fiduciary relationship is an evidentiary question or finding of fact which must be determined from the facts in each case; and therefore,- the scope of appellate review is to ascertain only whether there is substantial competent evidence to support the finding of the trial court. [Citation omitted.]’
“In passing on a trial court’s determination of the existence or nonexistence of a fiduciary or confidential relationship, an appellate court is required to consider the evidence in its most favorable aspect in relation to the party who prevailed in the court below, [Citations omitted.]”
The trial court in Bennett held that the beneficiary and the testatrix did not have a confidential and fiduciary relationship. Although the court found that the beneficiary came to visit the testatrix every day, the court stated that she was only looking after the testatrix’s personal care. The beneficiary also supervised the nursing care and saw to the purchase of food and other household items. Hall directs the court’s attention to the fact that although the Bennett court affirmed the trial court’s finding of no confidential relationship because it was supported by substantial competent evidence, the court questioned whether it would have made the same factual findings had it been the finder of fact. 19 Kan. App. 2d at 168-69.
In arguing that she presented sufficient evidence to the district court to avoid summary judgment, Hall relies on the court’s statement in Bennett that despite its ruling, the court believed there was evidence to support a finding that the beneficiary was in a confidential and fiduciary relationship with the testatrix. 19 Kan. App. 2d at 168. Hall argues that Bennett supports her claim that she should survive the motion for summary judgment because there are facts demonstrating the existence of a confidential relationship. First, Brodbeck’s health was failing. Second, James had durable power of attorney for Brodbeck. Third, Brodbeck entrusted Hart with her car, and Hart drove her to do errands and took her to appointments. James even accompanied Brodbeck to Houston for medical treatments. Hall correctly argues that these acts could be viewed as those of kindness, but in terms of preventing summary judgment, they could also be characterized as in the nature of trust and reliance and therefore establish a confidential relationship. We find the close friendship and trust attested to by James and Hart was sufficient evidence of the existence of a confidential relationship.
Our finding that a confidential relationship might well have existed in this case does not require our reversal of the trial court’s grant of summary judgment unless Hall can establish that suspicious circumstances existed when Brodbeck executed her 1992 will. Hall presented the trial court with 14 alleged “suspicious circumstances.” In granting the motion for summary judgment, it is safe to assume the district court either did not find the circumstances suspicious or found that Hall failed to provide adequate proof of the suspicious circumstances.
This court recently discussed the terms “suspicious circumstances” in Bennett:
“We have no Kansas decisions defining the term ‘suspicious circumstances.’ We think the absence of a specific definition of that term is wise and appropriate. What may appear as ‘suspicious’ under one set of facts may be considéred normal under another. For instance, ordinarily it would be considered suspicious for a testator or testatrix to disinherit his or her natural bom children and leave the estate to others. Although this would be considered suspicious in most cases, there are certainly factual circumstances where such a disposition would be expected and not at all suspicious. It may ordinarily be ‘suspicious’ to omit any provisions for family members and leave the estate to charity. However, there are factual circumstances in which this is not suspicious and may be normal and expected. Our Supreme Court has indicated in Brown v. Foulks, 232 Kan. 424, Syl. ¶ 2, that it would not state an exact definition of a confidential or fiduciary relationship. Its reasoning was that the existence of that relationship depends upon the facts and circumstances of each individual case. For the same reason, we decline to state a definition of the term ‘suspicious circumstances.’ The question of whether suspicious circumstances exist must necessarily depend on the facts and circumstances of each individual case.
“The question of whether suspicious circumstances exist is a question of fact to be determined on a case-by-case basis in the light of the factual background presented.” 19 Kan. App. 2d at 170.
Hall discusses several of the suspicious circumstances raised with the district court that allegedly should have prevented summary judgment. Although we once again recognize that the issue is a factual question for the trier of fact, we will uphold the granting of summary judgment if Hall fails to support her opposition to the motion with sufficient facts showing that there was a genuine issue for trial. See In re Wilsons Estate, 399 P.2d 1008. Among the suspicious circumstances Hall alleged to exist are the following:
(1) Brodbeck changed the beneficiaries from blood relatives (her niece and great-nephew) to nonrelatives (her apartment complex manager and her hairdresser). Hall argues such a change was not on its face justified and, under the language of Bennett, a change such as this would be considered suspicious in most cases;
(2) The appearance of James’ handwriting regarding a $500 loan to James in Brodbeck’s check register is suspicious, according to Hall;
(3) The beneficiaries on a number of Brodbeck’s bank accounts were changed to proponents. Hall claims some of these accounts were held at banks Brodbeck could not have reached without the assistance of James or Hart, who functioned as Brodbeck’s escorts during the relevant time period in this case;
(4) . Brodbeck was being treated with numerous medications when she executed the 1992 will, one of which was Halcion. In her motion opposing summary judgment, Hall submitted the affidavit of Dr. Curtis Klaassen, a toxicologist with the University of Kansas Medical Center, who stated that elderly patients who use Halcion sometimes develop hostilities toward long-time friends and relatives and other forms of paranoia. It was Dr. Klaassen’s opinion that Halcion was a factor in Brodbeck’s adverse feelings toward Hall and Lindsey and that the drug would have made her susceptible to the influence of James and Hart and in all probability was a factor in Brodbeck executing her 1992 will. Hall argues the presence of Halcion in this case was suspicious and also raised questions as to Brodbeck’s capacity during the time she executed the 1992 will;
(5) The timing of the execution of the 1992 will was shortly after Brodbeck was diagnosed with eye cancer; and
(6) James showed Brodbeck a letter, dated September 21,1993, written from Hall to James questioning James’ intentions with Brodbeck. Hall claims this would appear to be an attempt to disturb Brodbeck’s peace of mind. We note the suspicious nature of this act had no bearing on Brodbeck’s feelings for Hall when she executed her new will in 1992, as the changes occurred some two years before Brodbeck ever saw the letter.
Proponents argue that their actions did not rise to the level of undue influence and the trial court correctly entered summary judgment in their favor. They state it is Hall’s impressions, not any factual basis, which support her claims such as: (1) James and Hart attempting to make themselves indispensable, (2) Brodbeck being vain about her appearance and Hart, her hairdresser, being in a position to control her, and (3) during one of Hall’s visits, Brodbeck seeming to be distant, hostile, withdrawn, and being controlled by James. Proponents argue that Hall filed a torrent of papers containing unsupported inferences, innuendos, half-truths, personal attacks, and distortions, but she failed to state any specific factual contentions that would establish a material fact.
Proponents would have us utilize our standard of review for immaterial facts. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judg ment, the facts subject to the dispute must be material to the conclusive issues in the case. Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995). The court in Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 189, 891 P.2d 385 (1995), addressed what facts are material:
“ ‘[A]n issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issues does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact.’ [Citation omitted.]”
Proponents argue that Hall fails to provide proof of any material facts that Brodbeck did not have testamentary capacity or was unduly influenced. They contend the 40 pages of facts in Hall’s motion opposing summaiy judgment are immaterial and do not preclude summary judgment. They cite facts such as Hall’s dispute as to how long Brodbeck’s pastor had served in that capacity and Hall’s attack on Lytle’s integrity. They submit the only influence shown in this case was friendship and kindness, and under cases such as In re Estate of Ziegelmeier, 224 Kan. 617, 622, 585 P.2d 974 (1978), this is not undue influence. The court in In re Estate of Robinson, 231 Kan. 300, 307, 644 P.2d 420 (1982) stated that “lawful influence, such as that arising from legitimate family or social relations, must be allowed to produce its natural results, even in influencing last wills.”
Summed up, Hall’s argument is that James and Hart had the desire for Brodbeck’s property and the ability and opportunity to unduly influence her. Is that sufficient to reverse the finding of the trial court that there was no showing of undue influence? We do not believe it is. “Power, opportunity, and purpose to exercise undue influence, or possibility, conjecture, surmise and suspicion that undue influence has induced a will, alone cannot authorize the inference that such influence has in fact been exercised. [Citation omitted.]” In re Estate of Millar, 167 Kan. 455, 465, 207 P.2d 483 (1949). The court in In re Estate of Hall, 165 Kan. 465, 470, 195 P.2d 612 (1948), recognized the same requirement of some evidence that undue influence had actually been exercised and also explained the nature of this type of influence: “The test of undue influence, sufficient to destroy a will, is that it must amount to such coercion, compulsion and restraint as to destroy the testator’s free agency, and by overcoming his power of resistance, obliges or causes him to adopt the will of another rather than exercise his own.”
It was not sufficient for Hall to merely show circumstances which might be consistent with the exercise of undue influence and that Brodbeck and proponents shared a close personal relationship. Influence gained by kindness, gratitude, or affection will not be regarded as “undue” if no imposition or fraud is practiced. Hall has failed to show any evidence that the alleged undue influence overpowered Brodbeck’s mind and wore down her volition at the time the 1992 will or subsequent codicil was made or at any other time. Here, the facts point to no more than general influence which, if not brought to bear upon the testamentary act, however controlling, is not undue influence that will afford grounds for setting aside the will of a person of sound mind.
While a confidential relationship may well have existed between proponents and Brodbeck, any suggestion that proponents were in any manner active or participated in the preparation or execution of the will or that they received an undue benefit therefrom is absent from the record. There is no showing they had any knowledge of the terms of either the prior will or the one offered for probate before its execution, or that they coerced, intimidated, dominated, or in any way controlled Brodbeck’s mind in the preparation or execution of her will.
The issues of testamentary capacity and the presence of insane delusions have also been raised. Proponents submit Hall did not raise the issue of testamentaiy capacity with the trial court and therefore is prohibited from raising it on appeal. See University of Kansas v. Department of Human Resources, 20 Kan. App. 2d 354, 356, 887 P.2d 1147 (1995). Hall stated in her defenses to the petition for probate that Brodbeck was under an “insane delusion that Shirley Hall no longer loved her.” We find both issues were implicitly discussed at the trial level and are properly before this court.
The law defining “testamentaiy capacity” in Kansas is clear:
“It is the established rule in Kansas, the deceased possesses testamentary capacity if, on the date he executes the instrument which determines the manner in which the property will be disposed after death, he knows and understands the nature and extent of that property, has an intelligent understanding concerning the disposition he desires to make of it, realizes who his relatives are and the natural objects of his bounty, and comprehends the nature of the claims of those whom he desires to include and exclude in and from participation in his worldly effects after he has no further need for them. [Citation omitted.]” In re Estate of Ziegelmeier, 224 Kan. at 621.
See In re Estate of Raney, 247 Kan. 359, 367, 799 P.2d 986 (1990).
Hall argues the presence of Halcion in this case raised a factual issue of Brodbeck’s capacity to understand who her relatives were and the natural objects of her bounty. Furthermore, Hall argues Brodbeck’s use of Halcion created an issue regarding insane delusions, specifically her hostility towards relatives where the hostility had no basis in fact.
The affidavits submitted by proponents in this case clearly contradict Hall’s allegations. The affidavits stated, among other things, that Brodbeck was extremely strong-willed, of sound mind, and capable of understanding the nature and extent of her property. Dr. Richard Mundis, Brodbeck’s oncologist, although meeting her only one time in August 1993, stated that Brodbeck was of sound mind even while taking her prescribed pain medications. Lytle also stated in his affidavit that when Brodbeck signed the 1992 will, she was of sound mind, suffered under no influence from anyone, and made her own independent decision as to the beneficiaries of her property.
The meaning of insane delusion, in its legal sense, is a belief in things impossible, or a belief in things possible but so improbable under the surrounding circumstances that no person of sound mind would give them credence. An insane delusion is a belief which has no basis in fact or reason. In order to be a basis for avoiding a will, a delusion must be an insane delusion and the will must be a product of that delusion. In re Estate of Carothers, 220 Kan. 437, Syl. ¶¶ 1-2, 552 P.2d 1354 (1976). See In re Estate of Millar, 167 Kan. at 459-60. Even if Brodbeck was mistaken in her belief that Hall no longer loved her, such a belief is not an insane delusion. Millar explains that “[i]f there are any facts, however little eviden tial force they may possess, upon which testator may in reason have based his belief, it will not be an insane delusion.” 167 Kan. at 459. Furthermore, the court in Akins v. Akins, 109 Kan. 453, 456, 199 Pac. 922 (1921), recognized that a mistaken belief that one has been wronged by another is a very common frailty of humanity and is not necessarily an insane delusion.
Hall directs the court’s attention to a couple of facts she contends demonstrate the effect of Halcion on Brodbeck. Lindsey submitted an affidavit on behalf of Hall detailing her observation of Brodbeck after January 1992. Lindsey, a registered nurse, stated that Brodbeck had been taking Halcion in January 1992, and since that time and up until her death, Lindsey felt that Brodbeck was very distant and had stopped calling in emergencies. Lindsey also stated she had been Brodbeck’s friend for 45 years and she was surprised when Brodbeck changed her power of attorney and will. However, she apparently did not observe any overbearing of Brodbeck’s will, a lack of testamentary capacity, or insane delusion.
Dr. Klaassen’s affidavit stated his belief that in all probability, based on his observation of the facts in this case and his medical background, Halcion was a factor in Brodbeck’s hostility towards Hall and Lindsey and a factor in her writing the 1992 will. However, this opinion is only speculation and is not based on any contact between the doctor and Brodbeck.
Inasmuch as no genuine issue as to any material fact existed, the proceeding was in proper posture for disposition by summary judgment. We find that although James and Hart were in a situation where they could exert undue influence, that Brodbeck may have been mistaken in her relationship with Hall or Lindsey, and that the effects of Halcion are uncertain, Hall presented no evidence that these factors actually resulted in or contributed to Brodbeck’s execution of the 1992 will.
Finally, Hall argues the district court erred in directing counsel for proponents to prepare the summary judgment journal entry. Proponents contend that Hall waived this argument by failing to object at the trial court level.
Hall argues that Kansas Supreme Court Rule 165 (1995 Kan. Ct. R. Annot. 171) requires that in all contested matters submitted to a judge without a jury, including motions for summary judgment, the judge shall state the controlling facts required by K.S.A. 60-252 and the legal principles controlling the decision. Hall cites a quote from In re Marriage of Case, 18 Kan. App. 2d 457, 464, 856 P.2d 169 (1993): “We note that Supreme Court Rule 165 ... requires & judge, in all contested matters, to state the controlling facts and the legal principles controlling the decision. These requirements are mandatory under both K.S.A. 60-252 and Supreme Court Rule 165.” Therefore, Hall argues the district court erred by allegedly failing to meet its responsibilities.
We are not persuaded by Hall’s arguments. Case is distinguishable because there was a complete absence of a journal entry stating the findings of fact and conclusions of law. This court reversed in Case because we could not discern from the record the basis for the administrative hearing officer’s order reducing the amount of child support, nor was there any writing containing the basis by which the district court denied judicial review. 18 Kan. App. 2d at 464. Here, we have a journal entry that was signed by the district court judge.
Both parties agree that the purpose of requiring the judge, not the parties, to set out the controlling facts and law in the summary judgment journal entry is to permit meaningful appellate review. See Baker University v. K.S.C. of Pittsburg, 222 Kan. 245, 254, 564 P.2d 472 (1977). Hall argues that requiring one of the parties of the lawsuit to prepare the journal entry frustrates this purpose by allowing for a slanted version of the proceedings for the appellate record. Addressing Hall’s argument, proponents point out that Supreme Court Rule 165 does not expressly prohibit the judge from directing a party to draft the controlling facts and principles for the judge to consider and adopt. Therefore, proponents contend, because the district court adopted the summary judgment journal entry they prepared, and it thus clearly sets forth tíre reason for the court’s decision and the standards and law that governed the court in its determination.
We recognize the persuasive authority cited by Hall criticizing a trial court’s decision to have a party to the lawsuit draft the findings of fact and conclusions of law. But, although a better practice would be to either have the district court prepare its own findings of fact and conclusions of law or have all parties jointly draft the journal entry, we do not believe the district court’s actions should result in a remand in this case. We appreciate the judicial economy in having parties draft proposed summary judgment journal entries and then submitting them for the district court’s approval and adoption if they are consistent with the court’s findings. We also recognize that Hall had a remedy in K.S.A. 60-252(b) to file a motion to amend the journal entry and failed to take advantage of it.
We note proponents have raised arguments concerning Hall’s failure to comply with Supreme Court Rule 141 (1995 Kan. Ct. R. Annot. 160). This rule requires the party opposing a summary judgment motion to state in corresponding paragraphs whether each factual contention is controverted and a concise statement of any conflicting testimony or evidence. The district court did not utilize Hall’s failure to comply with Rule 141 to hold that certain facts were uncontroverted, as would be the ordinary remedy in such a situation. Therefore, since the district court took no action under Rule 141, there is no reason to address it on appeal.
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Lewis, J.:
In 1991, Western Resources, Inc., (WRI) began to upgrade and change its computer system. In the process, it obtained a license for application software. The process cost WRI approximately $15 million. WRI contends that its application software is intangible personal property and not taxable. It believes that the Property Valuation Division (PVD) of the Kansas Depart ment of Revenue included the value of its application software in the unit value of WRI.
WRI demanded that the PVD deduct the appraised value of the application software from the total unit value determined. The PVD refused to do so. WRI then appealed to the Board of Tax Appeals (BOTA) seeking relief. BOTA held that application software was taxable as part of the unit value. This appeal followed.
This is a complex and potentially far-reaching case. Our task is not aided by the fact that no one seems to have any idea to what extent, if any, the taxable value of WRI’s property was affected by the inclusion of the application software. Counsel for WRI, on numerous occasions during oral argument before this court, could not advise the court how its total tax bill had been affected by the inclusion of application software in the unit value. The representatives of the PVD were no more helpful. Counsel for the PVD did concede that the unit value of WRI was affected at least to some degree by the application software. However, he insisted that he had absolutely no idea how much. The PVD adamantly insists that it cannot determine what percentage of the total unit value is attributable to the inclusion of the application software into the mix. The net result is that we are unable, on the record before us, to determine what relief, if any, WRI is entitled to, assuming its arguments are valid. This requires, as will later become apparent, that this matter be remanded for further hearings.
The least complex issue presented is determining the nature of the application software. Both parties agree that it is intangible property by virtue of the decision in In re Tax Protest of Strayer, 239 Kan. 136, 716 P.2d 588 (1986). In Strayer, BOTA had determined that computer software was taxable as tangible personal property. The Supreme Court reversed, at least partially, and held: “Application programs, those which are particularized instructions adopted for special programs, are intangible property not subject to the personal property tax for tangible property.” 239 Kan. 136, Syl. ¶ 3. The court went on to hold that operation programs, without which a computer cannot operate, were tangible property and were subject to the personal property tax on tangible personal property. 239 Kan. at 143.
There appears to be no question in this case that we are dealing with application software which, by the definition developed in Strayer, is an intangible. This, unfortunately, appears to be virtually the only issue on which the parties can agree.
WRI argues that Strayer controls. It suggests that the only way its application software could be taxed is as tangible personal property and that this cannot be done under Strayer. This argument is premised on the supposition that intangibles are not taxed by K.S.A. 79-101.
A necessary implication of Strayer is that intangibles are not, in fact, taxable under K.S.A. 79-101. That statute provides: “All property in this state, real and personal, not expressly exempt therefrom, shall be subject to taxation in the manner prescribed by this act.” K.S.A. 79-102 defines “personal property” as used in the act as “every tangible thing which is the subject of ownership.” The Supreme Court in Strayer concluded that the definition of personal property as “every tangible thing” indicates that intangibles are not included in the term personal property and that, as a result, they were not taxable under K.S.A. 79-101. We accept the conclusion of Strayer in this regard and agree that decision precludes the taxing of intangibles under K.S.A. 79-101.
However, as the PVD points out, this does not answer the question raised in this case. The PVD points out that it does not premise its taxation of WRI’s application software under K.S.A. 79-101. It argues that at least indirect taxation of intangibles is authorized by K.S.A. 79-5a04. This statute applies only the valuation of property owned by a “public utility” and provides in pertinent part:
“The director of property valuation shall annually determine the fair market value of public utility property, both real and personal, tangible and intangible, of every public utility as defined in subsection (a) of K.S.A. 79-5a01 and amendments thereto.
“As used in this section, ‘fair market value’ means the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. For the purposes of this definition, it shall be assumed that consummation of a sale occurs as of January 1.
“The division of property valuation in determining the fair market value of public utility property shall, where practicable, determine the unit valuation, allocated to Kansas, and in doing so shall use generally accepted appraisal procedures developed through the appraisal process and may consider, including but not by way of exclusion, the following factors: (Emphasis added.)
The PVD argues that whereas intangibles may not be taxable under K.S.A. 79-101, they are at least includable under the unit system as provided for by K.S.A. 79-5a04.
WRI counters by arguing that all K.S.A. 79-5a04 does is to allow the PVD to determine the fair market value of all of the real, personal, tangible, and intangible property of a public utility. It argues that the statute does not permit the taxation of the property, nor does it impose a tax on the property described. As WRI views the statute, K.S.A. 79-101 imposes a tax on real estate and tangible personal property. It argues that there is no statute which imposes a tax upon its intangible application software and, as a result, that particular property is not taxable in this state. It then posits that if application software is not taxable, it must be removed from the unit value of WRI before any tax can be levied.
There is merit in the approach taken by WRI. K.S.A. 79-5a04 states in its preamble that it deals with the valuation of public utility real and personal property. The statute does not appear to specifically subject anything to taxation. It only requires the director of property valuation to “annually determine the fair market value” of public utility property.
Despite what is said or not said in K.S.A. 79-5a04, we think that a reasonable construction of this statute is that it does, at the very least, authorize the inclusion of certain intangibles within the unit value. We reach this conclusion by reading 79-5a04 in the context of the entirety of chapter 79, article 5a, which deals with the taxation of public utilities:
“ ‘In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ ” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992) (quoting Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 [1975]).
See State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994); Bradley v. Board of Butler County Comm’rs, 20 Kan. App. 2d 602, Syl. ¶ 4, 890 P.2d 1228 (1995).
We think it is veiy obvious that article 5a of chapter 79 is designed not only to value but to effectuate the taxation of property of a public utility. If this were not so, then much of article 5a of chapter 79 is totally superfluous. K.S.A. 79-5a04 requires the Director of the PVD to value the property at its fair market value. K.S.A. 79-5a25 through 5a28 deals with apportioning the assessed value to the various taxing districts. In the final analysis, the various taxing districts are to use the assessed valuation in preparation of their budgets for ad valorem tax purposes.
It is inescapable to us that taken as a whole, article 5a of chapter 79 was intended by the legislature to provide the method for taxing the taxable assets of public utilities. In order to accomplish the intention of the legislature, we must construe 79-5a04 as imposing or authorizing a tax on the unit value of a public utility. We reject the argument of WRI that there is no statute which imposes a tax on its property. We conclude that when construed in the light of the purpose of the entire article, 79-5a04 does authorize the valuation and taxation of the public utility property described therein through the unit value method.
The next question is one which we do not feel constrained to reach on the record before us. WRI argues that the 1985 and 1992 amendments to article 11, § 1 of the Kansas Constitution do not authorize the taxation of its application software. Since we deal here with the years 1992 and before, the 1992 amendment is not applicable. However, there is nothing in that amendment which would change the outcome of the question presented.
Article 11, § 1(b) of the Kansas Constitution, as amended in 1985, reads as follows:
“(1) The provisions of this subsection (b) shall govern the assessment and taxation of property on and after January 1, 1989, and each year thereafter. Except as otherwise hereinafter specifically provided, the legislature shall provide for a uniform and equal basis of valuation and rate of taxation of all property subject to taxation. The provisions of this subsection (b) shall not be applicable to the taxation of motor vehicles, except as otherwise hereinafter specifically provided, mineral products, money, mortgages, notes and other evidence of debt and grain. Property shall be classified into the following classes for the purpose of assessment and assessed at the percentage of value prescribed therefor:
“Class 1 shall consist of real property. Real property shall be further classified into four subclasses. Such property shall be defined by law for the purpose of subclassification and assessed uniformly as to subclass at the following percentages of value:
“Class 2 shall consist of tangible personal property. Such tangible personal property shall be further classified into six subclasses, shall be defined by law for the purpose of subclassification and assessed uniformly as to subclass at the following percentages of value:
(C) Public utility tangible personal property ■ 30%
(F) All other tangible personal property not otherwise specifically classified 30%
“(2) All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, farm machinery and equipment, merchant’s and manufacturer’s inventories and livestock and all household goods and personal effects not used for the production of income, shall be exempted from property taxation.” (Emphasis added.)
WRI argues that by limiting taxable property to real property and tangible personal property, the constitution has, by definition, excluded certain intangibles as taxable property in this state. This is an argument with a considerable amount of merit and logic. It is also a question we see no need to answer at this point.
It is clear that certain properties which we would define as intangibles are excepted from the scope of article 11, § 1(b). It is specifically provided that, among other things, “mineral products, money, mortgages, notes and other evidence of debt and grain” are excepted from the scope of this provision of the Kansas Constitution. It is worthy to note that nowhere in article 11, § 1 is the term “intangible” used. Despite that fact, there is no question that the property listed above is considered intangible and is excepted from the provisions of article 11, § 1 of the Kansas Constitution. In this case, we deal with application software. It is not a mineral product, it is not money, it is not a mortgage, it is not a note, it is not other evidence of debt, and it is not grain. Neither, according to the Kansas Supreme Court in Strayer, is it tangible personal property. The real question is whether an intangible such as application software is subject to taxation in light of the provisions of article 11, § 1 of the Kansas Constitution.
To answer the question posed would require us to consider the constitutionality of not only K.S.A. 79-5a04 but also K.S.A. 79-101 and all other statutes which might be construed as imposing a property tax on any intangibles not specifically excepted from the provisions of article 11, § 1.
We do not believe the record in the case before us requires us to consider the constitutional issues raised. We are unable to tell from the record to what extent the application software in this case affected WRI’s tax bill in the years in question. Indeed, we are unable to say with absolute certainty that the value of the application software is even included in the total unit value of WRI as computed. We decline to deal with constitutional issues in a vacuum. If we were to conclude that WRI is correct in its constitutional argument, we would be unable to determine whether our decision would entitle it to significant, de minimis, or any relief whatsoever. For that reason, we are remanding this case for further proceedings.
The problem lies, at least partially, in the nature of the unit system. The other complication is the “smoke and mirrors” approach of the PVD. We refuse to believe it is unable to determine the extent to which the inclusion of application software in the unit affected the total valuation. If it truly does not know and cannot determine this fact, then it is possible that the unit system is nothing more than an elaborate fiction designed to conceal the true nature of how the assessed valuation of a public utility is determined.
In its purest sense, the unit system taxes only the total value of a business as a going concern. It does not tax, nor does it necessarily include, the fair market value of all of the component parts. See, e.g., Adams Express Company v. Ohio, 166 U.S. 185, 41 L. Ed. 965, 17 S. Ct. 604 (1897); Mich., Wis. Pipe Line v. Iowa State Bd. of Rev., 368 N.W. 2d 187 (Iowa 1985). Indeed, the unit value of a going business might be more or less than the fair market value of the tangible, real, and intangible properly which make up the assets of the business. Robert M. Badenoch, the expert who testified for the PVD, was asked to tell BOTA what PVD exhibit 5 purported to show. In answering that question, he explained the unit system as follows:
“A. Well, it proports [sic] to depict a lot, at least in my opinion. Start out with— in contrast to the methodology valuations that we saw in the commercial, industrial, and residential we are talking in utility terms about a value called the unit value.
“Which means you value the total property in its operation as a going concern. You’re not looking for the individual building asset value, you’re looking for a value of the operation business value of the entity, so the end result is different. Although they are both market value, you’re not looking for the value of any asset, any particular asset when one does a unit value. The unit conditions as it would encompass of anything real personal and intangible values incorporated that make the business run.
“Typically we value all property that is owned, used, or operated to make the public, to make the utilities function. In the real it’s land and buildings. In the personal that represents functionally; poles, wires, tract, airplanes, desk, chairs, pencils, computers, system software to ran them. Which I don’t believe there is any dispute about that.
“It also includes all intangibles be they booked or be they unbooked. Intangibles cover a wide variety of things; franchise fees, license, patents, goodwill, brand recognition, going concern, functional plant layout, how it’s constructed, area demographics, what are the claims, how many of them, how dense are they. Could even include such things as; favorable department, or favorable leasing, the customer base assembly to work force of their own staff, how much education do they have, how good are they at their jobs, this kind of thing. Inventory of advertisement materials — it sounds strange, but the slogo and jingles and trademarks are all intangibles, which go to aide the company in generating a dollar. It also includes the primary focus of this hearing which is the custom software or in-house developed software.
“As I understand this, it was in part purchased over the shelf and in part adapted for specific needs of the gas company. But in looking for that unit value it also, the interaction of all of these pieces the real, the personal, and the intangible that keep rotating around and make a mix and kick out a dollar. And that dollar functionally is the value of the company and that is what we’re seeing.
“And this dollar which has then no representation of any particular asset within the company, it is used as the market value of the company, and generally speaking placed because of the statutes requiring our distribution. Let me just state that those other two properties that we talked about or all of those systems in real estate and commercial industrial have a unique status they have one taxing unit usually. A property of this nature has many taxing units.
“For instance the gas company in this case has a thousand sixty-two units, taxing units, in which they have property. So we must take this dollar and distribute it somehow against all of that property in a hundred sixty-two taxing units.
“The methodology by which that is done has been given to us by the legislature and they’ve told us to do it by via original cost. So this dollar amount is rationed against the original cost for everyone, original cost dollar, then gets a proportionate share of the market value.
“And those original cost dollars are known for each taxing unit, which of the each hundred sixty-two or thousand sixty-two taxing units has an original cost dollar, that’s allocated by the company, either on a unit basis or on a particular status basis depending a lot on how they keep their books.
“Q. Mr. Badenoch, do you — referring to what has been marked for identification as PVD Exhibit 5, inside the circle there, do you value any one of those items—
“A. No.
“Q. —and include the valuing of any one of those items in the unit value?
“A. We include the value of all of these items in the correlated unit value. We do not know the value of any particular item within the unit value. It loses its identity through this mix. We don’t — intangibles have no value, without real and personal property they’re worthless. You get a license you can’t do anything with it unless you add personal or real.
“If you have personal and real property you can’t do anything with it in a public utilities sense unless you get the license — the franchise. So they are inseparateable [sic], you can’t use one without the other, they become scrap value in either case. And scrapped to have the property without the franchise and if you get the franchise and don’t have the property you still got nothing.”
WRI produced no testimony which seriously disputes the testimony of Badenoch.
Unit value has been characterized, not as the valuation of real property or personal properly or even a combination of both, but rather as a valuation of property as a going concern. ITT World Communications, Inc. v. City and County of San Francisco, 37 Cal. 3d 859, 864, 210 Cal. Rptr. 226, 693 P.2d 811 (1985). Under this theory, the value of tangible property is enhanced not by the taxation of intangibles but by including intangibles in the valuation as a whole. See Norfolk & W. R. Co. v. Tax Commn, 390 U.S. 317, 324, 19 L. Ed. 2d 1201, 88 S. Ct. 995 (1968); Amdur, Property Taxation of Regulated Industries, 40 Tax Lawyer 339, 346 (1986).
The PVD asserts that it has utilized the “enhanced value” theory and that under that theory only tangible value results. This argument has merit if accurate.
By utilizing the unit value, states have been allowed to consider properties as part of the unit value which they could not tax directly. For instance, in Pullman Co. v. Richardson, 261 U.S. 330, 338, 67 L. Ed. 2d 682, 43 S. Ct. 366 (1923), the State of California had included in its unit value Pullman cars which were not located in that state. The argument was made that the State could neither tax the act of engaging in interstate commerce nor lay a tax on the gross receipts therefrom. The United States Supreme Court held that under the unit theory concept, California could include property which “enhanced” the value of the unit which it could not tax directly:
“A State within whose limits such property is permanently located or commonly used may tax it. [Citations omitted.] And, if the property be part of a system and have an augmented value by reason of a connected operation of the whole, it may he taxed according to its value as part of the system, although the other parts be outside the State; — in other words, the tax may be made to cover the enhanced value which comes to the property in the State through its organic relation to the system. [Citations omitted.]” (Emphasis added.) 261 U.S. at 338.
See Norfolk & W. R. Co. v. Tax Comm’n, 390 U.S. 317; Branson v. Bush, 251 U.S. 182, 64 L. Ed. 215, 40 S. Ct. 113 (1919); Cleveland &c. Railway Co. v. Backus, 154 U.S. 439, 38 L. Ed. 1041, 14 S. Ct. 1122 (1894); Los Angeles SMSA Ltd. Partnership v. State Bd. of Equalization, 11 Cal. App. 4th 768, 776, 14 Cal. Rptr. 2d 522 (1992); ITT World Communications, Inc. v. County of Santa Clara, 101 Cal. App. 3d 246, 254, 162 Cal. Rptr. 186 (1980); Roehm v. County of Orange, 32 Cal. 2d 280, 285, 196 P.2d 550 (1948).
A review of the various authorities cited above leaves no doubt as to the validity of the unit value method in valuing and taxing the property of a public utility. We conclude that under that method, intangible property, exempt or nontaxable, may be used to the extent that it creates an “enhanced” value of tangible property. In that manner, it is not the intangible that is being taxed but the enhanced value of the tangible property.
As employed in that context, it may be irrelevant as to whether the application software in this case was taxable in and of itself.
If, on the other hand, it develops that the entire value of the application software was included in reaching the unit value, then a question exists as to whether it is constitutional to tax the application software. We deal in this instance with the difference between the theory of “enhanced valuation” and the outright taxation of the intangible itself. It is possible that under -our constitution the outright taxation of the intangible itself is not permitted. The record in this case is insufficient to enable us to determine which scenario we deal with.
The question we need to have resolved was illustrated by the case of GTE Sprint Communications Corp. v. County of Alameda, 26 Cal. App. 4th 992, 32 Cal. Rptr. 2d 882 (1994). In that case, the tax authorities apparently included the entire value on the intangible assets in calculating the unit value of Sprint’s California property. There apparently was no effort made to explain whether the “enhanced valuation” concept was employed. The California court described the tax board’s action as “myopic” and indicated it felt the Board was only paying “lip service” to the concept of unit method valuation. The tax board in California, as does the PVD in this case, apparently refused to explain how it had dealt with exempt tangibles in reaching the unit value. The California court concluded:
“While we recognize that intangible assets may contribute enhancement value to the tangible property of the going concern, we cannot conclude, as the Board does, that the entire value of the intangible assets identified by Sprint may be subsumed, as a matter of law, in the unit value of Sprint’s California property.
“Accordingly, it is necessary to return this matter to the Board for a reassessment hearing as to both tax years,’ at which time the Board’s appraisers shall have an opportunity to present evidence rebutting Sprint’s identification and/or valuation of intangible assets. At that hearing, both parties may present evidence as to thé portion of the intangible values, if any, that can be deemed to enhance the value of the tangible property.” 26 Cal. App. 4th at 1008.
On this appeal, we remand for similar reasons. If, on remand, it can be determined that the application software in this case is part of the unit value only to the extent that it “enhances” the-value of other tangible property, then no constitutional issue would be presented and we would affirm the inclusion of the application software to that extent. If, on the other hand, the PVD has simply added the full value of the application software to the value of other taxable assets of WRI, then the intangible itself is being taxed, and whether it can be taxed under article 11, § 1 of the Kansas Constitution is an issue which must then be resolved.
The resolution of the questions remanded may be complex; it does not make the task impossible. We think that WRI, as any other taxpayer, is entitled to an explanation of the extent to which its taxes are based on the value of the application software in question. It is not acceptable for the PVD to simply state it cannot answer that question. The PVD compiles the unit value of the public utility, and for that division to say it does not know how it reached the total valuation for tax purposes indicates to us that it is either stonewalling or frighteningly incompetent. It is the job of the PVD to know what it is doing, and it has a duty to advise the taxpayer of the manner in which it taxes their property.
We are prepared to hold that the failure of the PVD to identify how it dealt with WRI’s application software would be an admission that it employs the unit method only as a fiction and that the entire value of WRI’s application software has been included and taxed in the total value of the unit.
We reverse the decision of BOTA and remand for a determination of the issues indicated in this opinion. Once those issues are resolved, we will be in a position to determine whether the constitutional issues raised are relevant and, if so, to resolve those issues.
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Marquardt, J.:
Richard Lee Gardner appeals from the district court’s order reviving dormant child support judgments dating back to July 1, 1981.
On January 2, 1979, the district court filed a journal entiy of divorce which ordered Richard to pay $150 per month in child support. The child support payments were ordered to begin on January 1, 1979, and to continue “until said children reach the age of majority or until further order of the court.”
All judgments from July 1, 1981, through September 30, 1994, were unsatisfied. On April 14,1994, Anita Kaye Gardner’s assignee, SRS, filed a motion for revivor. On October 25, 1994, SRS filed a second motion for revivor of all judgments from July 1, 1981, through September 30, 1994.
The district court granted the motion for revivor for all judgments from July 1, 1981, through September 30, 1994, applying K.S.A. 60-2403 and K.S.A. 60-2404.
DORMANCY AND REVIVOR STATUTES.
Richard appeals, arguing that the district court misinterpreted the dormancy and revivor statutes.
This issue requires the court to construe Kansas statutes governing the reviving of dormant judgments. See K.S.A. 60-2403; K.S.A. 60-2404. Because construction of a statute is a question of law, this court’s review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). The function of this court is to interpret a statute to give it the effect intended by the legislature. See Cyr v. Cyr, 249 Kan. 94, 98, 815 P.2d 97 (1991).
Child support payments become final judgments on the dates they become due and unpaid. Michels v. Weingartner, 254 Kan. 44, Syl. ¶ 1, 864 P.2d 1189 (1993). “Such judgments may be enforced like other judgments and are subject to the dormancy statute.” Dallas v. Dallas, 236 Kan. 92, 93, 689 P.2d 1184 (1984).
Generally, unless certain action is taken, a judgment becomes dormant after 5 years. See K.S.A. 60-2403. A dormant judgment cannot be revived if it remains dormant for a specified period of time. The general rule is that a judgment that remains dormant for 2 years is extinguished. K.S.A. 60-2403(a)(l); K.S.A. 60-2404. Thus, “a plaintiff may neglect his judgment for seven years, lacking a day, and then revive and put it in force for five years more.” Riney v. Riney, 205 Kan. 671, 680, 473 P.2d 77 (1970).
In 1988, the legislature amended K.S.A. 60-2403 and removed child support judgments from the general rule. Since 1988, child support judgments do not become extinguished unless they have “remained dormant for the period prior to the child’s emancipation plus two years.” K.S.A. 60-2403(b)(l); L. 1988, ch. 218, § 2; In re Marriage of Williams, 21 Kan. App. 2d 453, 454, 900 P.2d 860 (1995).
The district court applied the post-1988 rule and revived all of the judgments dating back to July 1, 1981.
Richard argues that the general rule of the pre-1988 statute applies to the judgments that accrued prior to July 1, 1988.
K.S.A. 60-2403(b)(2) provides that the child support extinguishment rule “shall apply only to those judgments which have not become void as of July 1, 1988.” Thus, the question is: Which judgments were “void” on July 1, 1988?
“[A] void judgment or order is a nullity and may be collaterally attacked at any time.” Friesen v. Friesen, 196 Kan. 319, 321, 410 P.2d 429 (1966); see Sramek v. Sramek, 17 Kan. App. 2d 573, 577, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993).
A judgment that is dormant is not void; it may be revived and have the same force and effect as if it had not become dormant. K.S.A. 60-2404. Not until a judgment has remained dormant for the specified period of time, 2 years under the general rule, does it become “absolutely extinguished and unenforceable.” Cyr, 249 Kan. at 97. Only those judgments older than 7 years as of July 1, 1988, would have been void. See Riney, 205 Kan. at 680.
Under K.S.A. 60-2403(b)(2), the new child support extinguishment rule would apply to any judgment that could have been revived on July 1, 1988. Using the 7-year rule, the district court did not err in reviving the judgments back to July 1, 1981.
DUE PROCESS
Richard also argues that the district court violated due process in applying the child support extinguishment rule to the judgments that became due before July 1, 1988. The issue is whether K.S.A. 60-2403(b) constitutes a taking without due process because it retroactively affects a substantive right.
When considering the constitutionality of a statute, this court resolves all doubts in favor of validity. See Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 661, 831 P.2d 958 (1992).
Anita argues that if the 1988 amendment to K.S.A. 60-2403 were procedural, then retroactive application would not affect vested rights; however, if the amendment were substantive, it could not be applied retroactively.
“Vested rights” is a term that is used to describe rights that cannot be taken away by retroactive legislation. Resolution Trust Corp. v. Fleischer, 257 Kan. 360, 365, 892 P.2d 497 (1995). Retroactive legislation affecting vested rights would constitute the taking of property without due process. Harding, 250 Kan. at 668. In determining whether rights are vested, Kansas courts distinguish between substance and procedure:
“ ‘There is no vested right in any particular remedy or method of procedure.’ Jones v. Garrett, 192 Kan. 109, Syl. ¶ 6, 386 P.2d 194 (1963). ‘A different rule applies, however, to substantive laws. They affect vested rights and are not subject to retroactive legislation.’ Harding, 250 Kan. at 668; Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 190, 883 P.2d 1177 (1994). Procedure has been described as the ‘machinery for carrying on the suit, including pleading, process, evidence, and practice,’ and ‘the mode or proceeding by which a legal right is enforced, that which regulates the formal steps in an action.’ Jones, 192 Kan. 109, Syl. ¶¶ 2, 4. Substance, on the other hand, has been described as ‘the law which gives or defines the right,’ the ‘law which gives the right or denounces the wrong,’ and ‘the law creating any liability against the defendant for his tort committed.’ Jones, 192 Kan. at 114-15.” Fleischer, 257 Kan. at 366.
The amendment of the dormancy and revivor statutes affected the mode or proceeding by which a legal right is enforced. Fleischer, 257 Kan. at 366. The substantive right or liability had already been created by the journal entry, which provided for the child support payments. Thus, we conclude that the laws governing dormancy and revivor are procedural and may be applied retro-
Bofh parties point to Harding, where the court held that statutes of limitations are procedural while statutes of repose are substantive. 250 Kan. at 668. Richard argues that a revivor statute is similar to a statute of repose. Conversely, Anita argues that a revivor stat ute is similar to a statute of limitations. In the instant action, this distinction is neither helpful nor dispositive.
Prior to Harding, Kansas law did not distinguish between statutes of repose and statutes of limitations when evaluating retroactive legislation, The rule applicable to both was “ ‘that the limitation may be extended, where it has not already expired. A [cause of action] which is already barred by existing laws can not be revived by a new one.’ ” Harding, 250 Kan. at 663 (quoting Morton v. Sharkey, 1 Kan. *535 [1860]); see Waller v. Pittsburgh Corning Corp., 742 F. Supp. 581, 584 (D. Kan. 1990), aff’d 946 F.2d 1514 (10th Cir. 1991); Jackson v. American Best Freight System, Inc., 238 Kan. 322, 324-25, 709 P.2d 983 (1985).
Discussing the power of the legislature to constitutionally revive causes of action, the Harding court stated:
“The legislature has the power to revive actions barred by a statute of limitations if it specifically expresses its intent to do so through retroactive application of a new law. The legislature cannot revive a cause of action barred by a statute of repose, as such action would constitute the taking of property without due process.
“This rule does not apply to causes of action affecting the title to real estate or personal property because such actions involve substantive or vested rights and, thus, cannot be revived regardless of any distinction between statutes of limitations and statutes of repose.” 250 Kan. at 669.
Treating the extinguishment of a judgment as analogous to the barring of a cause of action under a statute of limitations or statute of repose, the distinctions made in Harding are not dispositive here. Even applying the pre-Harding rule, at the time the legislature amended the statute to change the time period of extinguishment, the 7-year time limitation for reviving the judgments had not expired on the judgments dating back to July 1, 1981.
Stated otherwise, at the time the child support extinguishment rule was enacted, the judgments dating back to July 1,1981, could have been revived under the prior general rule. Thus, the new statute did not deprive Richard of a vested interest. See Harding, 250 Kan. at 663.
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' The opinion of the court was delivered by
Johnston, C. J.:
This action involves the right to the possession and ownership of three negotiable debenture bonds, each of the denomination of $1,000. The trial court adjudged that plaintiff owned and was entitled to the possession of them, and of this decision the defendant complains.
It appears that the Southwestern Mortgage Company, the Farmers State Bank, and the Home Savings & Loan Association, were all engaged in business in Emporia, and all maintained headquarters and conducted their business in the same building. Aside from the proximity of their headquarters, there was a close relationship in the interchange and management of the business conducted by them. E. J. Conklin was the president and manager of all three members of this family of corporations. The bonds in controversy, with certain others, were issued by the mortgage company, and on March 13, 1919, a sale was made of them by Conklin to the loan association, which deposited them in a compartment in the safe of the Farmers State Bank. About two and one-half months after the sale of the bonds to the loan association, Conklin unlawfully took the bonds from the safe of the bank and sold and delivered them to the plaintiff, who paid full consideration for them and took them without notice of the fraud of Conklin. About five months after the purchase by the plaintiff she became concerned about the safety of the bonds, which were being kept in her home, and took them to the mortgage company where they were deposited for safe-keeping. Conklin, who was in charge of the business, accepted the bonds for that purpose and issued the following receipt :
“Emporia, Kansas^ July 8, 1919.
“Received of Mrs. J. H. Brown, three $1000.00 mortagage bonds for safekeeping. (Signed) The Southwestern Mortgage Company,
By E. J. Conklin, President.’’
Soon afterwards these bonds so deposited were found back in the compartment of the safe in the Farmers State Bank from which they had been wrongfully taken by Conklin, and apparently had been returned and replaced in the compartment by him. In the early part of January, 1920, it was discovered that Conklin had become a defaulter, had wrecked the institutions with which he had been connected, and had become a fugitive from justice. In a search for the bonds which plaintiff had placed with the mortgage company for safe-keeping she learned that after Conklin had absconded the bank examiner found them among the assets of the loan association in the compartment where they had been placed by the loan association before they had been unlawfully extracted by Conklin and sold to the plaintiff. The loan association refused to deliver the bonds to plaintiff upon her demand, and following this the present action was brought.
To whom dó the bonds belong, is the question to be determined. It is conceded that the bonds were negotiable instruments, that plaintiff paid an adequate consideration for them, that she purchased them without knowledge of the wrongful abstraction of them by Conklin or of any circumstances that would put her on inquiry as to the validity of the transfer. It appears to be conceded, to'o, that plaintiff, having obtained them for a fair consideration and without notice of defects, she then acquired a good title to the bonds notwithstanding they had been stolen from defendant. It is contended, however, that in the replacement of the bonds in the safe from which they Avere extracted, the defendant not only gained possession of them by the surreptitious transfer but that the plaintiff was thereby divested of her acknowledged title and the ownership was shifted back to the defendant. The bonds having passed out of the ownership of defendant and the plaintiff having acquired a good title to them, did the regaining of possession by defendant in the manner stated revest the title in it? To accomplish this and make the defendant a holder in due course, it was essential that there should be a new consideration and that the defendant acquired the bonds without knowledge of infirmity or defects in the title or knowledge of such facts as would make the retaking of the bonds an act of bad faith. (Neg. Inst. Act, §§ 59, 61-64, Gen. Stat. 1915, §§ 6579, 6581-6584.) As to knowledge or notice of defects in the title, it is true that the secretary of the defendant, who first placed the bonds in the bank safe, and who appears to have been more directly in charge of such securities than other officers of the association, had no knowledge of the wrongful taking and sale of the bonds, nor yet of their replacement, but the president of the association, who had managing authority did know all the facts as to the ownership of plaintiff, and as such officer of the association did know that he had no authority to transfer the bonds of plaintiff that had been left with the mortgage company for no other purpose than safe-keeping. Conklin was the presiding officer and authorized agent of the three corporations, including the defendant, and it must therefore be held chargeable with knowledge of the wrongful transfer of plaintiff’s bonds that its president had. It cannot avail itself of the results of his fraud and escape responsibility for it. Again, it appears that no new consideration was paid by the defendant. There were no negotiations between the defendant and anyone relating to the bonds, nor any attempt by it to purchase or pay for them. Indeed nó officer of the defendant except the president even knew that the bonds had been taken from the bank or of their replacement in it. The plaintiff, who then owned the bonds, gave no consent.to the transfer of them and no value was paid to plaintiff by defendant when they were put back in the bank’s safe. The defendant cites and greatly relies on London & County Banking Co. v. London and River Plate Bank, 21 Q. B. Div. 535, as an authority that the restoration of the bonds by Conklin released him from liability for an action of conversion which amounted to a fair consideration. In that case the manager of a bank which held negotiable securities, stole and sold them to another for value, who was without notice of any fraud. Later the thief by fraud managed to gain possession of the securities from the transferee and put them back into the possession of the party from whom they had been stolen. It was held that the transfer of the stolen securities to another without notice of the fraud and for a good consideration gave the purchaser a good title to them. It was also held that a consideration was necessary to the passing of'the securities upon the restoration of them to the former owner, but it was further held that in stealing and selling the securities, the manager not only committed a criminal offense but was rendered liable for their conversion, and when he restored them without the knowledge of the former owner he was presumed to have accepted the securities, that by the acceptance the bank lost the right to begin an -action of conversion, and this afforded a consideration which made the bank a holder in due course. The court remarked that the rule applied is artificial, and we incline to the opinion that it is not sound. We think the extinction of the right to sue the thief who stole the securities and afterwards fraudulently obtained and restored them did not amount to a valid consideration. He had the possession of the securities but held no interest in them and had nothing to transfer. If the officers of the bank had learned of the theft and had been present when the securities were restored, they would also have learned that they belonged to another. They could not have compounded the crime of larceny, and the loss of the right to sue the thief seems to us to be an unsubstantial and fictitious basis for a valid consideration. However, if the ruling were treated as sound it would not be controlling here in view of the difference in the facts. Here we have the added fact that the one who embezzled and sold the bonds was an officer and managing agent of the defendant to whose possession the bonds were restored, and therefore the defendant must be deemed to be a purchaser with notice that the bonds were owned by plaintiff and of the fact that its agent, Conklin, had no right to revest title in the defendant.
There appears to be little direct authorityjjn the question presented. Voss v. Chamberlain, 139 Iowa, 569, had some features like those involved in the case under consideration. Some notes belonging to Chamberlain and Weatherbee were placed in a wallet in the bank of which Green was the owner. Green had no interest in the notes or right to the custody of them. He abstracted them from the wallet in which Chamberlain kept his private papers and pledged them to the Denison bank as security for his own indebtedness. Subsequently he obtained possession of the notes for the claimed purpose of selling or collecting interest on them as the agent of the Denison bank. Instead of doing that he returned and placed them in the Chamberlain wallet from which they had been taken. Neither Chamberlain nor Weatherbee had any knowledge that the notes had been abstracted and transferred to the Denison bank. The cashier of that bank, who accepted the notes from Green as collateral, did not know that the notes belonged to others, but took them in the belief that they were his property. It was held that the Bank of Denison became a holder for value of the notes, and in referring to the secret replacement of them by Green in the wallet of the former owner it was remarked:
“If Green having possession of the notes indorsed in blank, had transferred them to an innocent holder for value, such transferee would no doubt have acquired rights prior to those of the Bank of Denison; but his surreptitious return of the notes to the wallet containing the papers of defendant Chamberlain did not invest the defendants with any other rights than those which they had prior to the abstraction of the notes from the wallet by Green and their delivery to the Bank of Denison. The return of the notes to Chamberlain's possession without his knowledge, and without his having parted with any new consideration or voluntarily incurring any detriment, did not make the defendants new holders for value in due course.” (p. 572.)
The defendant paid no new consideration for the bonds of plaintiff delivered to it, and must be held to have acquired them with notice of the fraudulent transfer and of the ownership of plaintiff, and hence is not holder for value in due course.
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The opinion of the court was delivered by
JohNSton, C. J.:
Fred Imm and Will P. Imm appeal from a conviction of burglary and larceny in the nighttime.
They assign as error a ruling admitting testimony as to the general reputation of the defendants for truth and veracity. Of course such testimony would not have been admissible if the defendants had not put their characters in issue or assumed the character of witnesses and given testimony in the case. Each of the defendants took the stand and gave testimony in his own behalf, and when they did so assumed the position of other witnesses and placed their general character for truth and veracity in issue. As witnesses they were subject to the same tests and to be discredited, contradicted and impeached as any other witnesses. . The court subsequently withdrew the impeaching testimony from the jury, but its admission . in the first instance was not error. (The State v. Pfefferle, 36 Kan. 90, 12 Pac. 405.)
Complaint is made of an instruction as to the possession of recently stolen property. It follows:
“You are instructed that the possession of recently stolen property without any reasonable explanation as to how the defendant came into the possession of such property is evidence tending to prove the guilt of the defendant of the larceny of such property and may be sufficient to warrant the jury in finding the defendant guilty, if in the opinion of the jury such unexplained possession satisfies the jury beyond a reasonable doubt that the defendant is guilty of such larceny; yet before it can be deemed sufficient standing by itself to warrant a conviction, the possession must be so recent after the time of the larceny as to render it morally certain that the possession could not have changed hands since the larceny.”
It is said that the first part of the instruction to the effect that the unexplained possession of recently stolen property by the defendant is evidence of guilt is unobjectionable. But it is contended that the latter part of the instruction charging that before it can ' be deemed to be sufficient of itself the possession must be so recent or so close to the time of the larceny as to make it morally certain that there had been no change of possession after the larceny was committed is erroneous. The defendants have no reason to complain of the last part of the instruction, as it was manifestly given for their protection. It placed a restriction on the general rule previously stated by the statement that a conviction on that evidence would not be justified unless the possession was so recent as to render it certain that it had not been changed since the larceny. The court did not treat the recent possession as a conclusive presumption of guilt nor convey the idea that as a matter of law such possession warranted a conviction. It was treated as a presumption of fact, the force and conclusiveness of which was left to the jury. The instruction is in line with the rule which has received sanction in a number of cases. (The State v. Cassidy, 12 Kan. 550; The State v. White, 76 Kan. 654, 92 Pac. 829; The State v. Shaefer, 111 Kan. 153, 204 Pac. 765.)
It is argued further in no event was the rule applicable -to Will P. Imm, for the reason that the property was in the possession of his father and could not be regarded as in his personal possession. The defendants were together operating a farm, the title of which was in the wife of Fred Imm, who was the mother of Will. On the farm there were two sets of improvements; the father lived in the home in one group and the son Will in the other. The testimony is that the defendants were in the store from which the tires and other property stolen were kept the evening before the offense was committed, and made some inquiry and examination as to them. The defendant, Will Imm, was shown to have been at the rear of the store on the night that it was .entered and the property stolen. Two days later officers made a search of the buildings on the farm and found part of the missing property in an attic of the washhouse in the group of buildings occupied by the father. It was shown that the wife of Will helped put the tires in the attic. When they were discovered by the officers Fred Imm was asked where he got the tires, and he said, “I don’t know, Will buys the tires.” Later, when Will was arrested and was giving directions to an employee as to the work on the farm, before leaving he said to the employee, “You keep your mouth shut.” His explanation as to the tires was that he and his father drove to Emporia the day following the larceny and on their way back they met men, whom they did not know, who were offering tires to sell, and after some negotiations with them a purchase of the tires was made, and when they came home the tires were thrown in the yard. In view of the testimony relating to the possession, no error was committed in applying the rule of recent possession to both of the defendants.
Another assignment of error is the failure of the court to instruct the jury on a lower degree of burglary than the second, which is a breaking in the nighttime. It may be said that no instruction upon other degrees was requested by the defendants. It is proper to instruct the jury upon a lower degree of an offense if there is substantial evidence tending to prove the inferior degree. The evidence all pointed to a breaking into the building and larceny in the nighttime. The building in which the .property was stored was closed at night and found broken the next morning when the attendants came to open the store for business. As already stated, Will P. Imm was shown to have been at the back of the building about ten o’clock on the night of the burglary. There was no testimony tending to show a breaking or larceny in the daytime. The court instructed the jury that the defendants could not be convicted of any offense unless it was shown that they had entered the building in the nighttime with the intention to steal the property therein, and if the state had failed to prove these elements beyond a reasonable doubt, the defendants should be acquitted. There was no evidence offered by defendants nor any claim made by them that the offense was of a lower degree, and as the case was submitted to the jury they were relieved from defending agáinst any degree except the one charged and were entitled to an acquittal unless the state proved beyond a reasonable doubt that the offense was committed in the nighttime. If the defendants desired an instruction on that phase of the case the trial judge should have been requested to give it, but under the evidence and the charge it is doubtful if it would have been proper even if a seasonable request for such an instruction had been made.
The evidence is deemed to be abundant to support the verdict, and no reason is seen for setting it aside.
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The opinion of the court was delivered by
MáRshall, J.:
The plaintiff sued the defendant to recover damages for slander and for the wrongful taking of cattle. Judgment was rendered in favor of the plaintiff on both causes of action, and the .defendant appeals.
1. Concerning the wrongful taking of the property, the petition alleged that—
“On the-day of February, 1919, defendant suffered his cattle to run at large upon the southeast quarter of said section thirty-one (31) last above described, and while so running at large, said cattle ate up and destroyed straw to the damage of the plaintiff to the amount and value of five ($5.00) dollars, and the plaintiff thereupon took into his possession four head of said cattle to hold the same for damages, said cattle being so taken by the plaintiff while they were engaged in committing said trespass. Thereupon the defendant came to the home of plaintiff and cursed plaintiff and plaintiff’s family, called the plaintiff and the plaintiff’s family vile names and threatened to kill the plaintiff with an iron bar and forcibly took said animals from the possession of the plaintiff; said acts were wantonly and maliciously done and the plaintiff was thereby caused to be put in fear and suffered great pain and anguish to his damage in the sum of one hundred ($100.00) dollars. Said acts were done maliciously and for the purpose of injuring and harassing the plaintiff.”
The defendant contends that the last part of this paragraph did not state a cause of action. The allegations of this paragraph should not be separated from each other; only one cause of action is stated. It is for damages caused by the defendant’s forcibly taking the cattle from the plaintiff. He had a claim against the cattle for damage done by them, and when they were taken away from him, he was damaged to the amount of that claim. The defendant is liable for all the damage that he did to the plaintiff in taking the cattle. Part of that damage was done by threatening to kill the plaintiff with the iron bar and by putting him in fear, although he was not touched and did not sustain any direct physical injury.
2. The defendant requested the following instructions:
“If you find that the calves taken up by the defendant in February, 1919, were not running at large, as that phrase is defined in instruction No. 5; or if at the time plaintiff took up said calves they were not doing damage to plaintiff’s crops; or if plaintiff’s agent informed defendant that plaintiff was not holding said calves for damages and requested plaintiff to come and take said calves; or if damages theretofore done by plaintiff’s stock, while running at large, to the defendant’s crops (and not settled for) equalled or exceeded the damages done under the same circumstances by the defendant’s stock to plaintiff’s crops, then and in any such case the defendant had a right to take possession of said stock provided he could do so without the use of force and violence in so doing.”
“You are instructed that the plaintiff had no right to take and hold possession of the defendant’s calves for the damages done by any other animals of the defendant to the crops of the plaintiff.”
These instructions were refused; complaint is made because they were not given. In The State v. Allen, 107 Kan. 407, 414, 191 Pac. 476, this court ha4 occasion to quote from 3 Blackstone’s Commentaries, page 4, as follows:
“Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens, when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one’s wife, child, or servant: In which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, wherever he happens to find them; so it be not in a riotous manner, or attended with a breach of the peace. The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice; his goods may be afterwards conveyed away or destroyed; and his wife, children, or servants, concealed or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again, without force or terror, the law favors and will justify his proceeding. But, as the public peace is a superior consideration to any one man’s private property; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided, that this natural right of recaption shall never be exerted, where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen; but must have recourse to an action at law.”
This is old law. It was violated by the defendant when he took the cattle away from the plaintiff. The instructions requested were properly refused. They went too far. They stated that the defendant could take his cattle if he could do so “without the use of force and violence in so doing.” That is not the law. He could have taken the cattle without force or violence if he did not do so in a riotous manner nor commit a breach of the peace in taking them.
3. The defendant complains of the admission of testimony given by the plaintiff’s wife. The evidence tended to show that at the time the cattle were taken from the plaintiff, the defendant was advancing toward the plaintiff with an iron bar and was threatening to kill him; that the plaintiff’s wife was present; that she told the defendant to go off the place, to let the plaintiff alone, and not to kill him; and that then the defendant said, “You s-of a b-, you have nothing to say.” The wife’s testimony was properly admitted because it concerned a part of the transaction in which the defendant forcibly took the cattle from the plaintiff.
4. It is contended that the evidence did not show that an assault was made on the plaintiff at the time the cattle were taken. Whether or not there was an assault was a question of fact for the jury to determine. There was ample evidence to show that an assault was made.
5. Concerning slander, the petition alleged:
“The said defendant on the 1st day of February, 1919, at the Farmers Union Elevator in the town of Voda, Trego County, Kansas, and in the presence of and within the hearing of plaintiff and one William Hall, and divers other persons whose names the plaintiff is unable to give at this time, spoke of and concerning the plaintiff the following false, malicious, and scandalous words, viz: ‘Y.ou (meaning the plaintiff) are a s-of a b-and you stuck a knife in my colt and you will never do it again. I’ll kill you.’ Plaintiff says that all of said words were false and were maliciously said by the defendant for the purpose of humiliating and injuring the plaintiff and that the words so spoken by the defendant greatly humiliated the plaintiff and injured him in his feelings and caused him great mental distress and greatly injured and damaged him in his reputation in the community in which- he lived all to his damage in the sum of five hundred (S500.00) dollars.”
On these allegations, the court submitted the action for slander. It is contended that a cause of action was not stated. It is argued that no facts were “pleaded from which it would appear that the defendant intended nor that the hearers would understand the defend ant to charge plaintiff with the commission of a criminal offense; and no allegation that any hearer did so understand the language.” The language was such that it did not need any explanation. The epithet applied, the threat, and the charge made showed the meaning intended to be conveyed by the defendant. The language was slanderous in itself. This contention is not good.
6. A demurrer of the defendant to the evidence of the plaintiff in support of the allegations of the petition set out in the fifth subdivision of this opinion was overruled. The defendant urges that as error. There was evidence which tended to prove each of the allegations of the petition on this cause of action; the demurrer was properly overruled.
7. The defendant requested the court to instruct the jury that no recovery could be had for the language used unless the hearers understood it in a slanderous sense. That instruction was refused. The court instructed the jury that if the language was used, it was slanderous per se, and that the plaintiff could recover upon proof of the utterance of the alleged slanderous words. The language alleged and proved to have been used was slanderous per se. The instruction requested by the defendant was properly refused, and the one given by the court correctly stated the law.
8. The defendant complains of the refusal of the court to instruct the jury that, if the alleged slanderous words were spoken in the heat of passion in a quarrel to which the plaintiff was a party, the jury might take into consideration such fact in mitigation of damages. The defendant cites Miles v. Harrington, 8 Kan. 425 and 25 Cyc. 421 to show that where slanderous words, actionable per se, are spoken in anger caused by the conduct of the plaintiff, the circumstances under which the words were spoken, although not a complete defense to the action, should be considered by the jury in mitigation of damages. The trouble with the argument of the defendant and the authorities cited by him is that the evidence abstracted does not show that the altercation during which the language was spoken was brought about by the conduct of the plaintiff. In Miller v. Johnson, 79 Ill. 58, the court said:
“Whatever may be the rule elsewhere, it has been definitely settled in this state that, in an action for slander, the anger or passion of defendant at the time of the publication of the slanderous words is no justification, or even mitigation of damages, unless it is shown the passion was provoked by plaintiff, and even then it can only be proven- in mitigation of damages.” (p. 60.)
It is insisted that the court committed error in overruling the motion of the defendant for a new trial and the motion for judgment in his favor on the special findings of the jury. The defendant bases his argument concerning these propositions on matters that have been discussed.
Other matters are complained of, but they are disposed of by what has been said or are not of sufficient importance to justify further discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
PoeteR, J.:
The appellant, August Dorchy, vice president of district No. 14, United Mine Workers of America, a labor union, embracing in its membership persons engaged in coal mining in Crawford and Cherokee counties, Kansas, was charged (jointly with the president of the same labor union, Alexander Howat) with the violation of the industrial court act (Laws 1920, ch. 29) in calling a strike at mine H of the George K. Mackie Fuel Company. He was sentenced to serve six months in the county j ail of Cherokee county and to pay a fine of $500 and the costs of the prosecution.
He contends that his arrest, trial, conviction and sentence were in violation of the rights guaranteed him under the laws and constitution of the United States.
The case is controlled by the opinions in The State, ex rel., v. Howat, 109 Kan. 376, 198 Pac. 939; Court of Industrial Relations v. Packing Co., 109 Kan. 629, 201 Pac. 418. See, also, The State, ex rel., v. Howat, 109 Kan. 779, 202 Pac. 72.
On the authority of these cases the judgment is affirmed. | [
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The opinion of the court was delivered by
MARSHALL, J.:
The defendant appeals from a judgment against him on a promissory note.
H. W. Skinner was the president of the plaintiff bank and acted for it in taking the note sued on. The defendant pleaded that the note had been given in a settlement of business matters between him and H. W. Skinner, arising out of the defendant’s pasturing a large number of cattle for Skinner, and pleaded that the note had been procured by Skinner by fraud in the following particulars:
First. “That at the time of the said settlement, Skinner represented and stated to the defendant that he had knowledge with reference to the missing cattle, for which the note sued on was given, and that the defendant was liable therefor, when said Skinner knew at that time, that his son D. W. Skinner had taken a part of the cattle for which the note was given, and that the rest of them had (lied through no fault of the defendant, and that the defendant was in no wise liable therefor.”
Second. “That Skinner further represented that he would take the note payable to him personally, and not the bank, and that he fraudulently took it in the name of the bank, instead of his own name, in order that the bank might maintain an action thereon, on the theory that it was not a party to the agreement between Skinner and the defendant.”
Third. “That he would hold the note, and keep it in his possession until he had gone up to Hamilton County, and make an investigation with reference to the missing cattle, and that at that time, he never intended to go to Hamilton County, and make any investigation, and never did go.”
Fourth. “That he obtained the defendant’s signature on the note by holding his hand over the same, when the defendant signed it, so that the defendant could not see to whom the note was made payable.”
These quotations are not taken from the answer; they are taken from the defendant’s brief.
There was no evidence to support any of the facts alleged as detailed in the first quotation. There was evidence to support the facts set out in the second, third, and fourth quotations. The evidence of the plaintiff tended to show that the note was given by the defendant directly to the bank for the purpose of taking up a note that had been previously given by the defendant to the bank, and that the business relations between the defendant and H. W. Skinner had nothing whatever to do with the note. The jury returned a verdict in favor of the plaintiff for the full amount of the note and interest, and returned answers to special questions as follows:
“1. Did the defendant E. H. Hogard, during the latter part of 1919, have a deposit and checking account with the plaintiff’s bank? A. No. 1. Yes.
“2. If you answer question No. 1, in the affirmative, then state whether or not at about the close of the year, the defendant was overdrawn on said account or was the plaintiff holding certain of his checks as cash items on account of lack of funds in said account. A. No. 2. Yes.
“3. If you answer the last two questions in the' affirmative, then state if the defendant gave the plaintiff his note for 12,000.00, to cover balance of his overdraft. A. No. 3. Yes.
“4. If you answer the last three questions in the affirmative, then state if the note involved in this suit is given to take up a portion of such $2,000.00 note. A. No. 4. Yes.
“5. State whether or not the plaintiff is now and has been since the making of the note in suit the owner thereof. A. No. 5. Yes.
“6. Did the defendant execute and deliver such note to the plaintiff? A. No. 6. Yes.
“7. Has such note or any part thereof ever been paid? A. No. 7. No.”
1. The defendant requested instructions of the court, submitting to the jury the question presented by the evidence to establish the allegations of the answer. The court failed to give them. Of that failure the defendant complains. If those instructions had been given and the jury had answered the special .questions as they were answered and a verdict in favor of the defendant had been rendered, that verdict could not stand, because the answers to the special questions showed that the facts alleged in the answfer and sought to be proved by the defendant were not true. Those answers established facts that would have compelled judgment for the plaintiff notwithstanding a verdict for the defendant, even if the instructions requested had been given.
2. The defendant complains of the following instruction given by the court:
“You are further instructed that if the note was taken by the bank in payment or part payment of the indebtedness due it, if any, then the plaintiff would not be bound by any agreement which the said H. W. Skinner might have made with the defendant to allow credit for cattle subsequently accounted for, and such agreement and accounting would be no defense to this action. You are further instructed that if the note was given in payment of indebtedness due the bank in the manner above mentioned, any agreement which may have been made between the defendant and the said H. W. Skinner that the said Skinner should pay the defendant’s indebtedness to the bank would not be binding upon the plaintiff bank, and your verdict should be for the plaintiff for the amount of the note with interest, even though you should further find that the said Skinner agreed with the defendant to pay off defendant’s former note at the bank, but failed to do so, and had the present note made to the bank instead.”
Any agreement between the defendant and H. W. Skinner concerning the business transactions between them that Skinner would take care of the note at its maturity cannot be used as a defense against the bank in this action. The defendant knew that the business relations between him and Skinner were no concern of the bank. Under the law Skinner had no authority to bind the bank by any adjustment of the business relations between himself and the defendant. The instruction correctly stated the law.
The judgment is affirmed. | [
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The opinion of the court was delivered by
MasoN, J.;
On July 24, 1919, two cars of hogs (containing in all 141 head) were shipped, one in the name of C. J. Grosse and the other in the name of Louie Grosse, his son, from Aulne, Kan., to a commission company at Wichita, for sale. They were sold for $7,146.01 and the company sent $6,978.13.of this to the Aulne State Bank, with directions to credit it to C. J. Grosse. The bank cashier entered the check to the credit of “Grosse Brothers.” On May 14, 1920, the bank commissioner took charge of the bank and later a receiver was appointed. On December 14, 1920’, this action was brought by C. J. Grosse against the receiver to recover the amount of such deposit. The receiver defended on the ground that the hogs and their proceeds belonged to Grosse Brothers (Louie and Walter Grosse, sons of the plaintiff), and that the deposit was made to their credit and checked out by them with the knowledge and consent of the plaintiff. Judgment was rendered for the receiver, and the plaintiff appeals.
1. The plaintiff contends that the evidence did not support the judgment or any of the foregoing claims made by the receiver. There was evidence tending to show these facts:
C. J. Grosse lived on a farm owned by his wife, he having a life lease. His two unmarried sons, Louie and Walter, lived with him. The county clerk’s records showed no personal-property statement from him for the year 1919. A grain company at Aulne sold about 1,000 bushels of corn in May, 1919, to Louie and Walter Grosse, whom the witness who made the sale called “Grosse Brothers,” which was paid for by their checks and which they hauled to the Grosse farm, where there was a big bunch of hogs. The plaintiff on cross- examination was asked if this com went into the hogs that were shipped to Wichita, and failed to answer. When asked if he ever signed a check for the payment of feed that went into these hogs he first said — “I fed those hogs,” and on being pressed gave a negative answer. This colloquy followed:
“Q. And you know, too, that they had borrowed money from this bank for the purpose of buying feed for these identical hogs, didn’t you?
“Q. You did know, it, didn’t you? A. I paid the boys for every bushel of corn.
“The Court: Mr. Grosse, notice the question.
“A. I don’t know of any of their borrowing money to feed hogs.
“Q. Did you know where they got money to buy this feed? A. I haven’t answered to that kind of question.
“Q. You say you paid them for the feed they bought for these hogs? A. Sure.
“Q. Where did you get that money? A. That is immaterial to you where I got that money.”
Previous to the sale of the hogs no deposit had been carried in the bank in the name of the plaintiff, nor was there one at any time in the name of Louie Grosse. An account had for several years been carried in the name of “Grosse Brothers,” checks against it being signed “Louie Grosse.” The bank paid out the proceeds of the hogs on checks signed by Louie or Walter Grosse, the balance being reduced to $4.28 by May 4, 1920. The account was balanced occasionally. The checks were returned by the bank and a part, but only a part, of them were produced at the trial by Louie Grosse, bearing his signature. Walter Grosse produced a pass book issued by the bank in his name with a part of the checks the payment of which it showed signed by him. He testified that he did not remember what a check he had signed for $684 was given for, and that he did not remember hauling any corn to the farm in 1919. The plaintiff drew no check against the deposit of $6,978.13, and prior to the closing of the bank did not ask that it be paid to him or credited to him, and after that said nothing to the officials in charge, but put his claim in the hands of an attorney for collection in November, 1920. The plaintiff testified that he knew his sons were drawing on the bank but didn’t know what for — that it was none of his business. In his personal-property tax statement sworn to by him on March 9, 1920, as containing all his property (specified as six dozen poultry, $60; stand of bees, $10; household furniture, $100; and interest in telephone company, $10), he did not include this deposit. He did insert it, however, in his statement the next year, after this action had been begun. With a third son he signed a note to get $75 from the bank in March, 1920. A deposit slip running to Louie Grosse was produced by him, but the credit was shown to have been entered on the Grosse Brothers account. Louie Grosse denied knowing anything of such a firm as Grosse Brothers but admitted signing a tax statement in that way in 1920, which showed among other property 125 head of hogs, and other live stock, farm implements, etc. He said he sold his father several hundred bushels of corn for which he was paid in cash, taking some of it out in board, that he borrowed money from the bank to buy the corn and paid it shortly after the hogs were sold in Wichita, and that with regard to rent for keeping his own hogs on the place he fixed it up with his mother. When asked if he didn’t know that the checks signed by him were charged upon the bank’s books to Grosse Brothers he answered, 'T don’t care how they were charged.”
We think from this evidence the jury were warranted in finding that the hogs and the money derived from their sale belonged to Louie and Walter Grosse and that the plaintiff had knowledge of the deposit being made in such manner as to be subject to their checks, and that they were checking on it, and that he consented thereto. The fact that the plaintiff did not include the deposit in his tax statement on March 1, 1920, tends strongly to show that it was not his. • The fact that his sons did not do so either has no contrary tendency, for by that time the money had been largely spent. The few articles returned by the father in comparison with the sons suggests that the business done at the farm was largely theirs, rather , than his. And incredulity was permissible in considering the story that this sum of $6,978.13 lay in the bank untouched, with no in- . quiry made concerning it, for some sixteen months, during the last six of which the bank commissioner and receiver were in control. Nor is it easy to believe that with the three Grosses living together, their business being so interwoven as the facts show, the sons could have checked out this considerable sum without the father being aware of what was'going on.
2. Complaint is made of the admission of evidence that the plaintiff made no personal-property tax statement in 1918 and 1919. He testified that the hogs sold at Wichita were 10 or 11 months old and that he raised them .himself. The fact that he did not make a tax return upon them in March, 1919, had some tendency to show that he did not own them then. The circumstance that he returned no property in 1918 had some bearing upon the amount of business he was then doing, and therefore upon the plausibility of his version of the transaction under investigation. Complaint is also made of the admission of evidence of a chattel mortgage for $1,000 given by Louie Grosse, July 7, 1919, on 60 head of hogs. If it was not relevant as showing something of the character and extent of business done by Louie Grosse, or the likelihood of his having an interest in the hogs shipped to Wichita, it at any rate was not important enough for its admission to constitute reversible error.
3. The principal argument made against the judgment' is based on the fact that the jury were instructed that if the hogs sold in-Wichita “were the property of Grosse Brothers, or either of them, then and in that event the proceeds of such sale belonged to Grosse Brothers, and the plaintiff cannot recover, although such funds were sent to such bank with instructions to credit them to the plaintiff; provided, however, you find that they were by said bank actually credited to the persons to whom they belonged.” It will be observed that this instruction standing alone authorized a verdict for the defendant even if the money had not been paid out to anyone but was intact in the hands of the receiver. The paying out of the money, although formally put in issue by virtue of the reply including a general denial, is hardly to be regarded as really in controversy, no attack having been made upon the bank records in this respect. Treating that question of fact, however, as a controverted one, and the instruction as applying even if the money was in the hands of the receiver, the case is not upon all fours with any of those supporting the rule expressed by saying that “a bank cannot defeat the suit of its depositor by showing adverse title m another” (1 Morse on Banks and Banking, § 342), or “the law presumes that a deposit belongs to the person in whose name it is entered, and the bank cannot question his right thereto.” (7 C. J. 639; see, also, p. 666; 3 R. C. L. 529.) That rule is based largely upon the principle (sometimes spoken of as estoppel) that a bank should not be permitted to dispute its liability to one whom-it’has recognized as a depositor, and the decisions supporting it were made in cases where the deposit was entered as directed. Here, while the bank violated the directions given by the company which sent it the money, it never did recognize the plaintiff as its depositor or as the owner of the money; it credited it to Grosse Brothers, and if they were the real owners, the question .of its right to dispute the plaintiff’s title is not the same as that passed upon in the cases referred to. Moreover, the rule in question is a general one applying “where there are no special circumstances leading to a contrary conclusion” (Note, 31 L. R. A., n. s., 764; see, also, 3 R. C. L. 530, note 4), and it is possible that a practice enforced as a matter of public policy against a bank while it is a going concern might not be necessary in dealing with a receiver who is a mere trustee for depositors, creditors and stockholders.
We need not determine the correctness of the instruction quoted, because the jury found specifically that by his silence the plaintiff consented that the money might be placed to the credit of Grosse Brothers, and that he consented that Grosse Brothers might check it out. These findings could not have been affected by the doubtful instruction, and they require a verdict for the defendant. -In the situation which they indicate the circumstance that at the time of the trial the Grosse brothers were making no adverse claim to the ownership of the deposit does not militate against the defendant. The money having already been used by them, their present willingness to assist their father in obtaining a judgment for it is quite consistent with the family community of interest which the jury found to exist. The plaintiff having acquiesced in the checking out of the money by his sons cannot be heard now to demand it from the receiver. A bank may doubtless require a written order for the payment of deposits, but this does not prevent a depositor from precluding himself by his conduct from complaining of payments having been made on the check of some one else.
The findings referred to and the effect we give them render it • unnecessary to discuss a number of errors assigned with regard to instructions given and refused, touching the same or related questions of law.
4. The jury were told that if the defendant had shown by a preponderance of the evidence any one of several sets of facts he was entitled to recover; and that otherwise the verdict should be for the plaintiff. This is complained of as an unfair method of statement— as overemphasizing the defendant’s side of the case. We do not think it open to that objection.
The plaintiff requested an instruction that the relation of a bank and a depositor is that of debtor and creditor. We do not think that abstract statement would have aided the jury in their deliberations. Another requested instruction contained the statement that a bank cannot pay out money deposited to the credit of one person to .another without express authority. This is too strong a statement, as authority might be implied in various ways. Another requested instruction was to the effect that it is the duty of a bank to follow directions in crediting money received for deposit, and that its failure to do so will not relieve it from liability to the person for whose credit it was directed to be deposited. The statement is obviously correct, but we see no occasion for giving it to the jury, for no inference to the contrary could be drawn from the charge as given.
5. The jury in answer to special questions found that Grosse Brothers did not in that name draw any checks against the money in controversy, and that the plaintiff did not know that it was placed to the credit of Grosse Brothers. The plaintiff contends that these findings are inconsistent with those already referred to and with the general verdict. The fact that the checks on which the money was drawn out were not signed “Grosse Brothers,” in view of the evidence that Louie Grosse who signed many of them had no account in his own name, is without serious significance. The finding that the plaintiff did not know that the proceeds of the hogs were placed to the credit of Grosse Brothers, in connection with the finding that by silence he consented to its being so placed, obviously meant that he did not know of the entry at the time it was made, although he afterwards learned of it and by acquiescence gave his consent.
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The opinion of the court was delivered by
West, J.;
The amended petition alleged that the plaintiffs were doing business as the Farney-Massman Construction Company; that the Missouri river is a navigable stream; that on February 25, 1889, and on July 25, 1890, the defendant, a bridge company, was granted the privilege of constructing a railroad-and-wagon bridge across the river at Leavenworth upon the express condition that provisions should be made for maintenance of a waterway—
“And navigable channel so related so (to) said bridge that traffic and navigation upon said stream would not be interfered with more than was necessarily incident to opening the so-called draw-span, and that said bridge should contain a draw-span not less than four hundred feet in length, which should be maintained over the main channel of said river and defendant obligated itself to maintain the channel of said river within the draw-span of said bridge, ...”
That in the fall of 1912 the plaintiffs were engaged in constructing certain river protections at Fort Leavenworth requiring them to transport rock and other material along the river, past where the bridge is located, and that at the time of the beginning of such work and for two or three years prior thereto it was well known to the defendant that the navigable channel of the river did not flow under the draw span of said bridge but flowed under a span six or seven hundred feet east of the draw span—
“That said change of the navigable channel was caused and permitted by the negligence and carelessness of the defendant in permitting obstructions to be placed in the Missouri River and in not building wing dams, booms and other works necessary to prevent said change of said channel and necessary to, maintain the navigable channel within the draw-span, of said bridge.”
It was further alleged that the defendant in disregard of its duty took no steps to keep the channel open under the draw span, whereby the plaintiffs had to transport their material by rail instead of by water at an increased cost, and causing a loss of $11,500 for which they asked judgment. Attached to the amended petition as an exhibit was an act of congress, approved February 25, 1889, authorizing the construction of the bridge, one section of which provided that it should be constructed' as a pontoon draw-span bridge—
“And shall contain a ponton draw-span of not less than four hundred feet in length, which draw-span shall be maintained over the main channel of the river at an accessible and navigable point, and the piers of said bridge shall be parallel with, and the bridge itself at right angles to, the current of the river/ . . \ No bridge shall be erected or maintained under the authority of this act which shall at any time substantially or materially obstruct the free navigation of said river, and if any bridge erected under such authority shall, in the opinion of the Secretary of War, obstruct such navigation, he is hereby authorized to cause such change or alteration of said bridge to be made as will effectually obviate such obstruction.”
Section 6:
“That the right to alter, amend, or repeal this act is hereby expressly reserved, and the right to require any changes in said structure or its entire removal, at the expense of the owners thereof whenever the Secretary of War shall decide that the public interest requires it, is also expressly reserved.”
Another exhibit was also attached, being an act of congress, approved February 25, 1890, authorizing the Leavenworth and Platte County Bridge Company to substitute a pivot instead of a pontoon bridge, and providing that in case of the substitution of such pivot drawbridge it must be done with the approval of the Secretary of War—
“And any change in the construction, or any alteration of said bridge that may be directed at any time by Congress or the Secretary of War shall be made at the cost and expense of the owners thereof: Provided, That said Leavenworth and Platte County Bridge Company shall at its own expense, build and maintain under direction and supervision of 'the Secretary of War, such wing dams and booms or other works necessary to maintain the channel within the draw span or spans of said bridge.”
An answer and reply and certain supplemental pleadings were filed, and in considering a demurrer to the reply the court carried it back to the amended petition and overruled it as to that pleading, and from this order the defendant appeals.
The defendant argues that the amended petition states no cause of action for the reason that the bridge was built under the authority of the Secretary of War and was therefore 'a lawful structure, and hence, not a nuisance. As to the charge that the change of the channel was caused by the negligence of the defendant in not building wing dams and booms, it is urged that there is no allegation that the bridge, when built, did not comply with the conditions and limitations of the acts of congress or that the defendant permitted the structure to decay or become an obstruction to navigation, and the river and harbor act of 1890, statute at large, is referred to. This act authorized the -Secretary of War, whenever he shall have good reason to believe any bridge over any navigable water is a reasonable obstruction to free navigation, and made it his duty, after giving reasonable opportunity to be heard, to notify the parties controlling such bridge so to alter the same as to render navigation thereunder free, and in giving such notice he shall specify the changes recommended by the chief engineer and prescribe reasonable time in which to make them. Hence, it is argued that even the Secretary of War has no authority or control to order changes in any bridge and that, as congress has full power over navigable waters, until congress and the Secretary of War take some affirmative action, the defendant has neither duty nor authority to act.. Counsel cite Union Bridge Co. v. United States, 204 U. S. 364, that when congress has once legalized a structure over a navigable stream, it cannot- be deprived of its lawful character.
Counsel for the plaintiffs contend that when such 'bridge is either not built or not maintained in the manner prescribed by the acts of congress it ceases to be a lawful structure and becomes an unlawful obstruction to navigation, and that the defendant did not have to await the order of the Secretary of War to build the necessary wing dams and booms, but was at all times bound to attend to this matter of its own motion, the only requirement being that the plans of such work should be approved by him. They also argue that obstruction of navigable streams may constitute both a public and private nuisance and that when one has sustained damage by reason of such' an obstruction, he may recover therefor.
There is no doubt that congress under ordinary conditions (not ’ involving matters of life, health and property calling for the exercise of state police power) has full authority over navigable waters and any bridges which may be built thereover. (Drainage Dis trict v. Railway Co., 87 Kan. 272, 123 Pac. 991, and Drainage District v. Railway Co., 99 Kan. 188, 161 Pac. 937.) Also, when a bridge is built in compliance with the requirements of the Secretary of War it cannot constitute a nuisance of which private parties may complain. Also, when once constructed np material changes can be made except in compliance with the orders of the Secretary of War.
The defendant refers to Kansas Southern Ry. v. Kaw Valley Dist., 233 U. S. 75, holding that the state had no jurisdiction over the interstate bridge there involved and could not order a change in its construction without the authority of the Secretary of War. That opinion expressly recognized our direct holding as to the power of the Secretary of War, but the venerable justice who wrote it seemed entirely unaware of the devastation and havoc wrought by the terrible flood of 1903 — one of the worst calamities that ever visited the Mississippi Valley — and treated the case as one involving merely “helping the drainage of a district.” The fact that the railroad company, in spite of its paper victory, went ahead and did precisely what we had ordered done was very succinctly and delicately pointed out by Mr. Justice Dawson in Drainage District v. Railway Co., 99 Kan. 188, 161 Pac. 937, who there well said:
“Interstate commerce was made for man, and not man for interstate commerce.”' (p. 207.)
But here the real question presented is the effect of the defendant’s alleged failure to build proper wing dams and booms and other structures to keep the channel flowing under the draw span. The statute quoted from leaves it entirely clear that when the defendant undertook the construction of the bridge it obligated itself to build these necessary structures in order that the channel might continue to run beneath the draw span, and as against the demurrer the allegation of the plaintiff was sufficient to show that the change, in the channel was brought about partially, if not wholly, by failure to build these structures. No authorization was required before proceeding with such construction; the only prerequisite was that they be built in the way approved by the Secretary of War; and the allegation that no attempt had been made to comply with this requirement of the act of congress leaves the defendant in the attitude of having failed to fulfill one of the obligations of its contract with the government when it undertook to erect the bridge.
Neither can it be said that the plaintiffs, under the allegations of their amended petition, suffered no more injury than the general public by reason of the defendant’s alleged failure to build the proper structures. The fact that the plaintiffs had a contract to construct certain river protection which required moving up. the stream a large amount of material, together with the fact that the defendant’s default caused it to move such material by land at a largely increased expense, would as a matter of common sense seem to place the plaintiffs in a different situation from that of the general public and entitle them to damages for the injury thus caused, and the authorities to the same effect seem clear, if not unanimous. (Vernard v. Cross, 8 Kan. 248; Tobie v. Comm’rs of Brown Co., 20 Kan. 14, 16; Winbigler v. Clift, 102 Kan. 858, 172 Pac. 537, and cases cited; Dudley v. Kennedy, 63 Maine, 465; Page v. Mille Lacs Lumber Co., 53 Minn. 492; Little Rock R. R. Co. v. Brooks, 39 Ark. 403; Note 11 L. R. A., n. s., 1060.)
The order overruling the demurrer as to the amended petition is affirmed, and the cause remanded for further proceedings.
Motion for rehearing denied January 6, 1923. | [
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The opinion of the court was delivered by
Dawson, J.;
This was an action for an agent’s commission on the sale of a farm. Plaintiffs were defeated and appeal.
The plaintiffs alleged that on September 15, 1919, they were employed by the defendant to find a purchaser for 320 acres of land, at a price of $10,000 to defendant, of which sum the plaintiffs were to receive $400 for their services. They further alleged that on May 14, 1920, they found a purchaser, Joseph Reaser, who was then able, willing and ready to buy, and that they brought Reaser to defendant, and that Reaser and defendant closed a contract for the farm at $9,600, and that the plaintiffs’ commission was then due, but payment was refused.
Defendant’s answer denied the employment of plaintiffs, denied that they found a buyer for him, and denied liability.
The testimony for the plaintiffs tended to show the matters alleged in their petition. The testimony for the defendant was to the contrary. He testified that he had a conversation with Ludwig, one of the plaintiffs, in September, 1919, in which Ludwig asked him his price on the farm, and that he replied that he would take $30 per acre ($9,600). Ludwig asked: “Would you pay a commission?” Defendant said he would not. He testified:
“He didn’t say lie would take it for sale. We parted then. . . .
“Q. 34. Did you at any time authorize him (meaning plaintiffs) to sell the land for you? A. No, sir.
“Q. 35. Did you at any time authorize him to find you a buyer? A. No, sir.”
A witness, William Tuttle, who had no conversation with plaintiffs, testified that he had told Reaser that defendant’s land was for sale.
Reaser, the man alleged by plaintiffs to have been produced by them as a buyer and with whom it was alleged that defendant made a contract of sale, testified:
“Q. 119. What if anything did he say (meaning Ludwig) about the contract they had to sell it before you went to Macy’s? A. He says, our contract’s run out, but we will go down and see him, he might still stay with the same price, but our contract’s run out, he says. . . .
“Q. 148. You may state whether or not you was able, ready and willing to complete the contract? A. No, I wasn’t able to fulfill it.”
The defendant also testified that he made the contract with Reaser the latter part of May, 1920, and received $200 from him on the bargain, but that the deal fell through.
“Q. What have you done in the way of transferring the land to Mr. Reaser? A. Nothing. He paid me $200.00 and we let it go at that. He didn’t take the land.”
The jury returned a verdict for defendant, and answered special questions:
“1. Was J. D. Reaser able, and willing to buy the land on the terms as stated in the plaintiff’s petition on September 10, 1920? Answer. No.
“2. State whether or not the said J. D. Reaser ever complied with the terms of the contract on or about September 10, 1920? Answer. No.
“3. Were plaintiffs the procuring cause of contract of sale entered into between defendant Charles E. Macy and Joseph Reaser? Answer. No.”
This was simply a fact case, and the facts were fesolved by the jury against the plaintiffs. They complain of the trial court’s overruling their motion for judgment on the pleadings. That motion was filed after the cause was tried and after verdict and findings were rendered against them. Since the pleadings had raised an issue of fact, their motion was properly denied.
They also complain of the instructions as to defendant’s liability if they were employed by him and procured a customer ready, willing and able to buy. Thesq instructions were correct; but even if not,'it would be immaterial here, since there was no employment of plaintiffs, and defendant owed them nothing on any theory of law.
They also find fault because the trial court submitted the special questions to the jury. It may be that these were not of controlling significance, but the general verdict does control; and we can see no point in plaintiffs’ present assertion that “plaintiffs were the first to inform Reaser that the land of defendant was for sale.” Reaser and Tuttle both testified to the contrary; but even if their testimony were disregarded and finding No. 2 eliminated, the jury’s general verdict is a determination that they had not been employed by defendant, and consequently he owed them nothing.
Affirmed. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
This was an action to enjoin the erection of a filling station in the city of Wellington, designed to supply customers with gasoline and oil for use in automobiles. A temporary injunction issued was dissolved by the court, and plaintiff appeals.
He alleged that he owns and occupies lots adjoining the proposed filling station as a home and also for the maintenance of a restaurant. He stated that the purpose of defendant is to install a plant for the sale 'and delivery of gasoline and other inflammable oils which endanger plaintiff’s residence and render it unfit for a home. He further alleged that the city of Wellington had passed an ordinance in 1919 which provides, that it shall be unlawful to erect a filling station within 100 feet of any residence in the city without the consent of the city commissioners, and that anyone erecting or attempting to erect one in violation of the ordinance should be guilty of a misdemeanor and fined in a sum not exceeding $100.
It is conceded that the defendants had not complied with the conditions of the ordinance, and further, that there had been no enforcement of it by the city. Plaintiff’s property extends to within 60 feet of the railroad tracks and within 150 feet of the main line of the railroad. It is within a block of the railroad station, and across the street from the property there is a filling station. In the immediate vicinity there is a mill and elevator, an ice plant, carpenter shop, merchants delivery barn, furniture repair shop, etc.
The questions discussed are whether the ordinance is valid, that is, whether the city may pass a zoning ordinance without legislative authority, and second, whether it is so arbitrary and unreasonable in its terms as to be invalid. So far as its being a nuisance which might be enjoined, there is testimony to the effect, from the in spection bureau, that the operation of a filling station will not increase the fire insurance rate on adjoining buildings more than would a grocery store, a garage or a dry-cleaning plant. The state fire marshal testified that he was acquainted with the situation and plans of the proposed station, by which tanks were to be buried under the ground, that he approved the methods and regarded such an installation to be safe and would not increase the fire risk or the life -risk on adjoining property more than a building used for ordinary mercantile pursuits. One witness, who resided for two years within 60 feet of a filling station which does a large business, stated that it caused her no more annoyance than any ordinary business conducted within that distance from her home.
The ordinance prohibiting the use of private property for the erection of filling stations without the consent of the city commissioners clothes those officers with arbitrary and unlimited power. It is conceded that the authority to create zones and restricted residence districts in cities has not been expressly granted by the legislature. Power to prevent the use of private property for mercantile or other legitimate business purposes should be plainly conferred. The sale of gasoline and lubricating oils for motor vehicles has become a public convenience and necessity. Stations and stores for this purpose have become almost as numerous and common as grocery stores, where gasoline was formerly kept and sold. The testimony produced tended to show that there was no greater fire hazard in such an establishment than there is where many other kinds of mercantile business is commonly carried on. Under the welfare provision of the statute, a city may exercise broad police power in protecting the public health, safety and comfort, but to prohibit an owner of property from using it for ordinary business purposes, or for any use not in itself a nuisance, where there is no express legislative authority, is not within municipal power. Regulations to prevent such stations from becoming unclean or from interfering with public travel and comfort may doubtless be provided, but to prohibit the use of property for that purpose was an unwarranted exercise of municipal .power. (Crawford v. City of Topeka, 51 Kan. 756, 33 Pac. 476.) Besides, the lack of express legislative authority the ordinance is invalid because of the arbitrary power conferred on the city commissioners. In Smith v. Hosford, 106 Kan. 363, 187 Pac. 685, it was held that an ordinance which placed power in the officers of the city to grant or refuse permission to build a garage in a certain district at the mere will of the officers was void. In the opinion it was said:
“Of course, a garage is not a nuisance of itself, but is becoming more and more necessary and profitable, and is a legitimate and lucrative means of making a living and adding to one’s capital. While, no doubt, a city may regulate and look after the operation of this, as well as other things, which, by an unlawful use may become injurious, it cannot, without tyranny, refuse a citizen the right to use his property in this way when properly managed, And, by the sarpe token, it must be held that a city cannot authorize one or more of its officers to prohibit such use.” (p. 366.)
In Standard Oil Co., v. City of Kearney, 106 Neb. 558., a city ordinance was enacted which prohibited the erection of a filling station in a certain defined district. The only authority for the enactment was the welfare provision to be found in city charter acts. It was held that the ordinance was an unreasonable and arbitrary exercise of municipal authority and was therefore void. In the instant case the granting or withholding of consent- by the city commissioners was left within their unguided and unlimited discretion or will. Without regard to the precautions proposed to be taken for the safety and protection of those on neighboring grounds, and whether or not the filling station would be more annoying or injurious to plaintiff than the location of other business establishments on the same site, the application might be refused by the city officers. Within the authorities cited the ordinance must be held to be void. As already indicated, the filling station properly and as ordinarily conducted Cannot be regarded as a nuisance per se. The district in which it is proposed to be built and used is practically a business district. The kinds of business conducted in the immediate neighborhood necessarily brings much traffic and many people, which naturally causes considerable bustle and 'noise. According to most of the evidence, the business of the station properly carried on will not result in either greater fire hazard nor any more annoyance or disorder than comes with many lines of business about which no question is ever made.
Judgment of the district court is- affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The defendant, William F. Patterson, was convicted of the charge of having sexual intercourse with Helen McVey, a girl under eighteen years of age. He appeals.
The evidence took a wide range and the trial occupied a week. A summary of what was shown by the evidence, including a large portion of the sordid details related by the witnesses, follows:
The defendant, a civil-war pensioner, is past seventy-six years of age and owns a home in which he lives in North Topeka. About twelve years ago he became acquainted with Mary McVey and her family, who at that time lived in the same part of the city, but at some distance from him.' He was a widower with married children who resided elsewhere. Mary McVey’s husband had died two years before and had left three small children, Dollie, Helen, and a son, Willie. She had difficulty in earning a living -for her. family. At that time Patterson sold vegetables and produce from a truck, and he often made gifts of provisions to Mrs. McVey, and became a frequent visitor at the house. It is admitted by both that their acquaintance soon developed into an illicit relationship, which she claims was upon a promise of marriage. This continued for several years. During her severe illness, resulting from an abortion or miscarriage, the defendant spent most of his nights at the McVey home assisting in the care of Mrs. McVey. At that time Dollie was about sixteen years old and Helen about thirteen; they slept in the same bed. Patterson frequently occupied the bed with them, and about that time began to have sexual intercourse with Helen, which prac tice continued at frequent intervals until shortly before this prosecution was instituted. He had also established the same relations with Dollie McVey.
Five or six years ago the defendant persuaded Mrs. McVey to purchase a home next door to him on Van Burén street in North Topeka, and he furnished her financial assistance in securing the property, taking the title in his name. She made payments to him from time to time as she could. The defendant adipits that from the time the family became next-door neighbors he became almost a member of the family and usually passed his evenings there. He 'exercised or attempted to exercise control over the children, and especially over the conduct of Helen McVey. Her testimony is that she continued to submit to his illicit relations from fear of his threats of exposing her and sending her to the girls’ school at Beloit. Mrs. McVey suspected the relations between the defendant and Helén and spoke to Helen about it; and Helen asked the question, “What about yourself?” She made no denial to the daughter of her own relations with him but told Helen to keep away from defendant’s house, and she protested about the matter to the defendant. She says he told her that it was none of her business, dared her to “open her head” about it, and made a number of threats. He was angered because of her interference and served notice upon her to leave the home where she lived; but the quarrel was patched up for a time. Mrs. McVey testified that she dreaded an exposure of the conditions that had existed, and for that reason tried to keep the matter quiet.
Whether the defendant became a mental pervert possessed with a mania for continually talking with these girls and others about sexual matters, or, as suggested by counsel for the state, he was attempting to destroy the reputation of Helen McVey in preparation for a defense of his own criminal acts; at all events, he kept accus- , ing her of having illicit relations with boys and young men, some of them schoolmates of hers, and others, older men with whom he had seen her talking. He charged her 'with being criminally intimate with the janitor of the school where she attended; and in the presence of the rest of the family, accused her and her brother, William, with having sexual intercourse. The defendant testified that she admitted all of these charges to him at different times. She said that he was constantly insisting that she was guilty of such conduct with other persons as well as with her brother, and that she would deny it, but lie would keep accusing her and that she would say “yes” in order to keep him still. “He would ask about one, and get tired talking about him and start talking about someone else.” A physician who made an examination testified that Helen had had sexual intercourse with some pérson.
The evidence of the state shows that defendant was the author of anonymous letters received by the principal of the school where Helen attended, charging that Anderson, the janitor, was guilty of misconduct with Helen and with other girls attending school. The principal testified that he was called to the ’phone by someone and the same charge made, but the person refused to state his name. The proprietor of a store from which the message was sent testified he heard the defendant telephone the charges to the principal.
After this prosecution was begun and written statements had been taken in the county attorney’s office from Dollie McVey, Helen McVey and their brother, the defendant took Dollie McVey to Lawrence, where they were married. In the application for the license Patterson gave his name as William F. Peterson and stated that he was a resident of Belpre, Kan., that he was fifty years of age and that the name of the girl was May D. McVey; that she was a resident of Belpre, Kan., and was twenty years of age. The marriage did not become known to the family until a week after it occurred, when Dollie took her personal belongings and moved to defendant’s house. After her marriage she turned against her own family. She was called as a witness for,.the state, but upon defendant’s objection she was not permitted to testify.
The first complaint of error relates to the admission of evidence of the marriage of defendant and Dollie McVey. He was asked why he didn’t get married under the proper names of himself and Dollie McVey. He answered that it wasn’t his mistake “when they made the name wrong.” He first denied that he had made any misstatement in the application for the license, but when confronted with the original license from the probate court of Douglas county he admitted that he had made three false statements under oath with respect to his name, age and residence. Over defendant’s objections the state was permitted to introduce in evidence the original application. It is insisted this was error; that evidence to show that a defendant committed one offense is not competent to prove another and distinct offense; and further, that the state was bound by his first answer to the question and could not offer evidence in rebuttal thereof. There are many exceptions to the rule relied upon forbidding evidence in a criminal case to show that the accused has committed another distinct offense. (The State v. Allen, 98 Kan. 778, 160 Pac. 795; The State v. Bowers, 108 Kan. 161, 194 Pac. 650.) In the opinion in the latter case it was said:
"It has been held that when a defendant takes the stand and assumes the character of a witness he is subject to the same tests as other witnesses, and for the purpose of impairing his credibility he may be cross-examined as to his past life and conduct and as to any specific facts tending to disgrace or degrade him, although they are irrelevant to the commission of the offense charged." (p. 165.)
To the same effect see The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; The State v. Probasco, 46 Kan. 310, 26 Pac. 749; The State v. Ross, 77 Kan. 341, 94 Pac. 270. After the defendant had admitted swearing to false statements in his application for a license he could hardly have been prejudiced by the introduction of the original application. We think there was no abuse of the court’s discretion in the admission of the evidence.
At the close of defendant’s evidence, the state called six of the twenty-five persons mentioned in the course of the trial as having had improper relations with Helen McVey, and over objections, they were asked with respect to the truth of the charges. Each denied that anything improper had ever occurred between himself and Helen McVey. The ground of the objection was that defendant never had said that the persons who testified had had intercourse with Helen McVey; that “she said it herself.” It was insisted that there was no evidence offered that any of these witnesses had ever been intimate with her, save and except her own admissions. In passing upon the objection the court made the statement that Helen McVey while on the witness stand denied the charges and had never admitted that the charges were true, to which counsel replied: “But she admitted she told Mr. Patterson. The Court: She claimed it was under some pressure.”
It is argued that the evidence was not competent for any purpose; that if the defendant had testified that Helen McVey had been criminally intimate with these persons, their evidence might have been competent in rebuttal to show that defendant was mistaken or had testified falsely. But it is insisted that the only matter in issue was whether Helen McVey had made a statement to the defendant admitting the facts and not whether her admission was true. Conceding the correctness of the rule for which defendant contends, two things must be established before we would be justified in reversing the judgment and ordering a new trial. The defendant must bring himself within the rule; and if successful in that, it must appear that the admission of the rebuttal testimony was prejudicial.
The state contends that the defendant made the testimony competent by imputations against the character of Helen McVey throughout the whole trial and by direct charges that she had been guilty of criminal relations with these persons. Attention is called to the fact that in his cross-examination, defendant was asked: “Q. At least twenty-five boys you claimed she was having these relations with? A. Something like that,” and also to the fact that in his opening statement to the jury defendant’s counsel made this statement :
“Things went all right with these people until about three years ago. At that time Mr. Patterson learned that Helen, the youngest daughter, was carrying on in a way that a child should not do. He learned, and he learned it to be an absolute fact, that this girl, Helen, was being debauched by her own brother, Willie, who sits beside her at this moment. ... At the same time he was investigating this matter he'learned that she was having sexual relations with several other young men and some who were older . . . the evidence will show that these relations continued between Willie and Helen since this little girl was twelve or thirteen years old.”
The state proved by a number of witnesses and by defendant himself that he had been systematically making these charges to other people, including the principal of the school where the girl attended. Helen testified that he was constantly accusing her of such conduct with the persons who testified in rebuttal as well as with many others. As suggested in the brief of the state, the defendant came into court prepared to testify to the names of twenty-five men and boys with whom he claimed this girl had held illicit relations.
We think that the defendant has not succeeded in bringing himself within the protection of the rule he now invokes to sustain his claim that error was committed in permitting the admission of the rebuttal testimony. Moreover, upon the bare question of whether or not Helen had made the statements to which the defendant testified there was no dispute; she admitted that she made the statements. She explained them. Her explanation was that he was constantly nagging her with these charges; that in order to quiet him she made the admissions. It is suggested that if the defendant was not claiming that Helen was guilty of these offenses, what possible harm could there be in the state calling witnesses to testify in rebuttal to the fact of her innocence of any wrongful conduct with the parties testifying?
It would seem that the defendant was willing to get the benefit-of the imputations he cast against the character and reputation of the little girl whom he had debauched, but wanted to deprive her and the state from offering evidence to rebut the imputations, upon the technical ground that he had not testified to positive knowledge that the charges were true.
In our opinion, the trial court exercised proper discretion in admitting the rebuttal evidence.
The defendant introduced in support of a motion for a new trial the affidavits of six of the jurors to the effect that this rebuttal testimony influenced them in arriving at their verdict. The affidavits, of ’Course, cannot be considered for any purpose, as it is not competent for a juror to impeach his verdict in that manner.
We think the question respecting the relations of Helen McYey with other persons became an. issue in the case, and that it was proper for the court in the instructions to refer to it and to tell the jury that even if they believed that she had been guilty of misconduct with other persons, that fact would not make the defendant the less guilty, if he actually committed the offense charged against him.
A witness called by defendant to testify as to his reputation stated that he had known defendant nine or ten years and was well acquainted with him, and had never heard his reputation questioned nor heard anything against him until this case came up. The court sustained a motion to strike out the answer. It is true, that the absence of unfavorable comment of a person is regarded as sufficient basis for predicating the general opinion of him as favorable. (2 Wigmore on Evidence, § 1614.) And the fact that a person is not talked about at all is often the best evidence of his character. (Id.) But the record does not disclose whether any part of the testimony of this witness was permitted to stand; nor whether, after he qualified himself as a witness, he was asked to state what the defendant's reputation was. Other witnesses testified that his reputation in these respects was good. In the case cited by defendant (The State v. McClellan, 79 Kan. 11, 98 Pac. 209), the witness testified in chief that lie was acquainted with the defendant’s general reputation for honesty, etc., and that such reputation was good, and stated further, that he did not know that he had ever heard it questioned. The court struck out the entire testimony of the witness, on the ground that it did not tend to establish a general reputation, and this was held to be error. The abstract here is silent as to what the witness had testified respecting -the reputation and character of the defendant except as to the negative fact that he had never heard it questioned. Other witnesses appear to have been called, who testified to the good reputation and character of the defendant. We think the usual course of procedure is to have the witness, after qualifying, state what the defendant’s reputation is, good or bad; and that if he says it is good, then it would be proper for him to state that he never heard the defendant’s reputation questioned or discussed. The record fails to show that error was committed, or if committed, that it was prejudicial.
In the instructions the court referred to the fact that the defendant had introduced evidence of his good reputation and character as a peaceable and law-abiding citizen; that this evidence was to be considered in connection with other evidence in determining his guilt; and if from the whole evidence, including that relating to reputation, the jury retained a reasonable doubt, he was to be acquitted.
In another the court charged that evidence of previous good character goes to meet every charge against the defendant and should be used in considering their verdict. This was sufficient; and it was not error for the court to refuse to give an instruction that such evidence should be admitted and considered not only as a defense, but that where the defendant has testified in his own behalf, it stands as a recommendation that he will speak the truth.
Failing to discover any errors in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by M. G. Ray and Isadore Ray against the defendants to forfeit an oil and gas léase executed to W. R. Brush on December 17, 1915, upon four hundred acres of their lands, which was later assigned to the A-l Oil & Gas Company. Two other leases to the same land were executed by plaintiffs to Thomas A. Simpson, one on one hundred and sixty acres, executed July 10, 1917, and the other upon the remainder of the tract on August 21,1917. Simpson assigned a two-thirds interest in his lease to Isaac Shuler and E. B. George. The plaintiffs asked for the cancellation of all the leases which they had executed and the quieting of their title against all of the defendants. At the close of plaintiffs’ testimony judgment against the plaintiffs was given, and from that they appeal.
The Brush lease, which was assigned to the A-l Oil & Gas Company two days after it was executed, provided that the lessee should commence operations either on the leased land or on a block of land in the immediate neighborhood within six months and that plaintiffs should have a certain proportion of the oil or gas obtained from plaintiffs’ land, the privilege of operating to continue as long as oil or gas might be produced in paying quantities, and that, when abandoned for that purpose, the grant should cease and no longer be binding on either party. After this lease was executed an additional provision was added on The margin to the effect that a dollar an acre per year of rent should be paid to the lessors after production is found in the neighborhood in paying quantities until development is started on the lessors’ land. There had been a conflict between the defendants as to their rights in the land under the several leases, but their claims were compromised and adjusted among themselves, and on March 22, 1918, the A-l Oil & Gas Company contracted with Simpson, Shuler and George for a division of all the acreage in certain proportions, and all have joined in defending against the action of forfeiture. The validity of the original or Brush lease is the principal subject of controversy in the case.
It may be noted that two months after the execution of the lease drilling was commenced on neighboring land in accordance with the terms of the lease, and thus the express condition in it, that operations should be begun within six months, was performed. It is contended, however, that the lease is void for indefiniteness in that it was not dated and therefore no time was fixed for the commencement of operations. The lease took effect upon its execution and delivery. Plaintiffs state in their petition that it was made and delivered on December 17, 1915. That fixed the starting point of the six-months period, and with this concession the provision is rendered as certain as if the date had been written in the lease. It follows that the lease is not void because of the omission of the date.
There is a further contention that it is invalid because no time was fixed for the commencement of exploration and development on plaintiffs’ land. As the lease provided, development was begun in a part of the oil field in the vicinity of plaintiffs’ land, and producing wells were drilled there. It is said that oil being produced on the neighboring land, operations might be postponed indefinitely bn that of the plaintiffs, and there could be no end to the lease until operations had been'abandoned on the neighboring land. It is true that no time is fixed to begin drilling on plaintiffs’ land in case oil is found in paying quantities in other parts of the field. The six-months limit applied to the field and was evidently stipulated as an assurance of good faith in the early development of the field of which the plaintiffs’ land was a part. It did provide for exploration and development, for the payment of royalties, the methods of operation, and for damages on the surface of the land which might result from operation, but no time was specified when drilling on that particular tract should begin. It was further provided for the terminátion of the lease; that is, when oil and gas were no longer produced in paying quantities. Evidently it was the intention of the parties that the land should be explored and developed and, no time being stipulated in the lease for the commencement of operations upon plaintiffs’ land, there is an implied covenant that operations should begin within a reasonable time. It must be inferred that the lease was executed and taken for the benefit of both lessor and lessee, 'and as the development of the land was the subject of agreement and, no time being stated for such development to begin, there is an implied covenant that it was to begin within a reasonable time to be determined with due regard to the situation and rights of each party. (Alford v. Dennis, 102 Kan. 403, 170 Pac. 1005, and cases cited.) It was not contemplated that drilling should begin on this land within six months after the execution of the lease, for the plaintiffs stipulated that the lessee should have the option to begin either on this land or on the neighboring land within that period. A day or two before the expiration of the six-months period, and after the drilling had begun on the neighboring land, plaintiffs served a notice of forfeiture upon the lessee, and later they refused to accept a payment of rental, and they also instituted proceedings to prevent the lessee from drilling or operating on their land under the lease. They are therefore not in a position to complain of the nonobservance of the implied covenant or that drilling was not commenced within a reasonable time. Besides, there is a well-established rule in equity that a forfeiture will not be declared for breach of an implied covenant. (Alford v. Dennis, supra.)
It is further contended that the lease is void because of the marginal stipulation written upon it after it had been signed by the plaintiffs, and it appears to have been placed there when Mrs. Ray was not present and without her knowledge and consent. It appears that a part of the leased land was the homestead of the plaintiffs, and it is said that the marginal entry upon the lease is such an invasion of her homestead rights - as to destroy the validity of the lease. The parties came to an agreement as to the terms of the lease, and when it was prepared it was signed by all of the parties, including Mrs. Ray. After it had been signed and Mr. Ray had learned that other leases in the field contained a provision that if oil was found in one tract of the field, a rental should be paid to the owners of other tracts in it until development on the owner’s tract was begun, Mr. Ray asked that he be given a like rental. The lessee agreed to the request, and the provision was entered on the margin of the lease previously executed. An oil and gas lease upon a homestead which interferes with the substantial occupancy and enjoyment of it, is deemed to be an alienation, and the joint consent of husband and wife to the lease is held to be essential to its validity. (Land Co. v. Gas Co., 43 Kan. 518, 23 Pac. 630; Gas Co. v. Land Co., 54 Kan. 533, 38 Pac. 790; Gas Co. v. Ralston, 81 Kan. 86, 105 Pac. 430.) Here the original lease, which was duly signed, provided for the occupation of the land for the purpose of development, and in this Mrs. Ray joined with her husband in giving joint consent. The subsequent agreement and entry upon the margin of the lease when she was not present did not enlarge or change the rights of the lessee nor diminish the rights and occupancy of the lessor as given in the original lease. In fact it did not relate to occupancy at all nor confer rights in the lessee to interfere with the substantial enjoyment of her homestead rights. This later agreement between the lessee and her husband was made wholly for the benefit of the plaintiffs, by which they were to receive a rental from the lessee for the period between the production of oil on neighboring land and the development on plaintiffs’ land. The marginal agreement not having increased or diminished the leasehold estate, nor authorized any interference with the occupancy of the homestead beyond that included in the previous agreement to which joint consent w,as given, the fact that the marginal entry was not assented to. by the wife does not impair the validity of the lease. In a somewhat analogous case it was held:
“An agreement changing the terms and manner of paying rentals of a gas and oil lease on a homestead from cash to a royalty of one-tenth of the product does not enlarge or diminish the leasehold estate and need not be in writing or consented to by the wife of the lessor.” (Wilson v. Gas Co., 75 Kan. 499, syl. ¶ 1, 89 Pac. 897.)
There the lease on the homestead provided that the lessee should pay the lessors as royalty $5 a month on each producing well drilled upon the land. By a subsequent agreement, to which the wife did not consent, it was stipulated that in lieu of the consideration first recited a royalty of one-tenth of the oil produced should be paid by the lessee. In responding to the contention that the change made without the consent of the wife rendered the lease void, it was said:
“The lease was regularly executed by the wife. This modification, or change in payment of the rentals from cash to a royalty did not interfere with the wife’s occupancy and enjoyment of the land as a homestead. It was neither a sale nor a conveyance' of the homestead or of any interest therein.
“Changes may be made in the terms and conditions of such a lease which do not either create' a new estate or extend or limit an existing interest in the estate created by the lease. As an example, the lease in question provides that the grantee shall begin operations within one month from the delivery of the lease. This time might be extended by an oral agreement of the parties without extending or limiting the leasehold estate. So with the condition that the lessors should have free gas for their own use. The same is true of the condition that the lessors should have a rental of five dollars per month for each oil and gas well from which products were taken of a commercial value. Neither the verbal agreements changing the manner of paying the rental for the oil and gas wells nor the division order created any interest or estate in the land.” (p. 503.)
As to the Simpson leases, it is contended that he obtained them on the promise to clear away and procure the cancellation of the Brush lease. Whatever preliminary negotiations may have been made prior to the execution of the leases, no such agreements were included in the lease, and there is no competent evidence to show the leases were procured by fraud. Besides, all of the parties are claiming under the Brush lease and, it being held valid, there is little materiality in the contentions as to the other leases. There is no contention among the lessees with respect to their rights under the several leases. The fact that the defendants did rely on all of the leases affords no grounds for the application of the rule of accession or as to the confusion of property.
Finding no error in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In an action by the holder of a promissory -note against several makers the defendants appeal from the overruling of a demurrer to the amended petition. The sole question presented is whether the making of a payment in November, 1915, was sufficiently pleaded within five years from that date to show a new starting point for the statute of limitation.
The note was dated October 10, 1910, and due in five years. It is contended by the defendants that by virtue of an acceleration clause it became due and the statute of limitation began to run at the end of the first year, because the annual interest was not promptly paid at that time. It is not necessary to consider that question. If a payment in November, 1915, was sufficiently pleaded, expressly or by fair implication, in the original petition, which was filed July 12, 1920, the demurrer was properly overruled, whether the cause of action accrued in October, 1911, or October, 1915. And if the amended petition was good against a demurrer only by virtue of a formal allegation of such payment which was added July 20, 1921, the amendment came too late, even disregarding the acceleration clause. (Liphart v. Myers, 97 Kan. 686, 156 Pac. 693.)
The original petition made no explicit allegation of payments, but stated that there was due the plaintiff $3,000 with interest from November 13, 1915, and contained a copy of the note with all the indorsements thereon, among which appeared the following:
“Paid on Prin. Nov. 1, 1915. $6810.00
Balance due on Prin. Nov. 1, 1915. 3190.00
Pd. on Prin . 190.00
“ on Int to Nov. 13-15.• 1200.00
Balance due . $3000.00”
On July 20, 1921, pending the hearing of the demurrer to an amended petition, these words were added to it: “That the defendant L. F. Davidson, for himself and the other defendants makers of said note on Nov. 13, 1915, paid to this plaintiff on said note the sum of $1200.” As already stated, if this allegation was necessary to save the petition it came too late, inasmuch as the period of limitation had then expired. It may' for that reason be disregarded.
Therefore the question presented is— Does a petition upon a promissory note against several makers, stating the amount due and setting out a copy with all indorsements, one of which recites a payment made on a certain day within five years after its maturity, sufficiently plead a payment made by the defendants at that time as against a demurrer based upon the statute of limitation? We think an affirmative answer must be given. The code provides that the allegations of a pleading shall be liberally construed with a view to substantial justice between the parties (§ 117), and that in an action on a promissory note it shall be sufficient to give a copy of it with all credits and indorsements, stating the amount due (§ 121). A petition is entitled to an especially liberal construction when attacked by demurrer .upon the ground that it shows the claim sued upon to have been barred by the statute. “It is not incumbent upon the plaintiff in the first instance to show by his petition that his claim is not barred. It is sufficient that he does not show that it is barred.” (Reed v. Humphrey, 69 Kan. 155, 157, 76 Pac. 390.) In the opinion from which this quotation is made cases are cited holding that allegations of facts showing that the statute may■ not have run are sufficient to prevent the petition from being demurrable by reason of the statute of limitation. The allegation that the amount due on the note was $3,000 with interest from November 13, 1915, when read in connection with the indorsements, fairly implies that payments had been made caring for the interest to that date and reducing the principal to that amount. And it cannot be said that the petition affirmatively shows that the last payment was made before November, 1915.
Under the code provision authorizing a short form of pleading, the pleader, in setting out an indorsement on a note, must be regarded as alleging not only that the particular words set out are written on the back of the instrument, but also that they were placed there under such circumstances as to give them the actual force they appear to have. Otherwise therp would be little purpose or effect in such a statute. For illustration, if the copy of the note which is incorporated in a petition shows the name of the payee to be written across the back it must be understood without express averments that it was placed there by him or by his authority. In Hendricks v. Wolff, 1 N. Y. Supp. 607, 608, it was said: “The language of the complaint is: ‘Indorsed: “Charles G. Wolff & l,Co.,” ’ It does no violence to language to hold that such a statement is equivalent to an allegation that ‘it’ (the note) was indorsed by Charles G. Wolff & Co., the makers and payees.” (See, also, National Bank v. Elliott, 46 Kan. 32, 26 Pac. 487.) “By the enactment of this statute the legislature obviously intended that the statements therein prescribed, when adopted by the pleader, should be the equivalent of, and should imply and import all that it would otherwise be necessary to specifically allege in the statement of a sufficient cause of action.” (Dykeman v. Johnson, 83 Ohio St. 126, 133.) The practice of keeping a record of payments 'on the back of a promissory note is so general and so well understood that the allegations of indorsements apparently of that character must be taken to mean not merely that the words shown were as a physical fact indorsed upon the note, but as well that they were placed there by the holder or by his authority as memoranda of credits at the time payments were made. No injustice can result from this view. If upon the trial the defendants are shown to have made the payments indicated by the indorsements they are legally liable, so far as the statute of limitation is concerned, and the presentation of that issue cannot take them by surprise and find them unprepared to meet it, for they could not read The petition without being fairly advised of the contention of the plaintiff in that regard.
In Liphart v. Myers, 97 Kan. 686, 156 Pac. 693, already referred to, where pleading an indorsement on a note was held not to be equivalent to an allegation of a part payment made at the date indicated, the decision was explicitly based upon the fact that the statute of limitation had run before that time, ahd the stress placed upon this feature of the case affords a fair inference that except for this a different conclusion would have been reached. In Pears v. Wilson, 23 Kan. 343, the pleading of indorsements of payment, there being no denial thereof under oath, was held to establish the suspension of the statute of limitation. There the petition contained specific allegations that the payments were made by the defendants at the times indicated and that the indorsements were made at their request, and it was admitted that the handwriting was that of the payee. That these considerations do not destroy the bearing of the decision on the present case is shown by this extract from the opinion:
“Now, no allegation of the petition concerning said indorsements on said promissory note was put in issue by any denial verified by affidavit, and hence all said allegations, and said indorsements ‘must be taken as trae.’ And everything that these indorsements will reasonably prove must also be taken as - true, unless the contrary is shown to be true. Thus, it must be taken as true that on June 1, 1872, a payment of one hundred dollars was made on plaintiff’s said note and mortgage, and that on April 2, 1874, another payment of fifty dollars was made on the note. See 1 Greenl. Ev. §§ 121, 122. And, as men seldom pay debts unless they are liable to pay them, it must also be presumed that these payments were made by said John D. Wilson, who was liable on the note, or by himself and wife, who were jointly liable on the mortgage. Indeed, it will generally be presumed, where a payment is shown to have been made, but where it is not shown who made it, that the party who is under legal obligation to make the same made it. (Scholey v. Walshy, Peake’s N. P. Cases, 24.) It would be so much outside of the ordinary course of things — so unnatural — that any other person should make the payments, that no presumption or supposition of that kind could be indulged in for a moment; and, presuming that Wilson, or Wilson and wife, made said payments, as the same are indorsed on said note, then neither said note nor mortgage was ever barred by any statute of limitations.” (p. 346.)
If a writing on the back of a note purporting to be a memorandum of a partial payment made within five years after maturity is itself some evidence (upon the issue whether the claim was outlawed) of a payment made at that time by the makers of the note, then the allegation of its existence is a sufficient averment, as against a demurrer, of a new starting point of the limitation period, for the defect resulting from pleading evidence instead of issuable facts cannot be reached by demurrer. (Pomeroy on Remedies and Remedial Rights, § 549.) There is some difference of opinion as to the evidential force of the mere fact of an indorsement appearing on a note purporting to show a payment before the running of the statute. (25 Cyc. 1374; 8 C. J. 1015; 3 R. C. L. 1285; Note, Ann. Cas. 1913A, 1223.) While the usual view may be to the contrary, such an in-dorsement is sometimes treated as 'prima facie evidence of its recitals. (1 Greenleaf on Evidence, §§ 121-123; Smith and others v. Battens, 1 Moody & Robinson’s Reports, 341, 342; Carter v. Carter, 44 Mo. 195; Bates’ Ex’ors v. Best’s Ex’or s, 52 Ky. 215, 218.) It is not necessary at this time to determine the inherent probative value of an indorsement. If it is incumbent upon the plaintiff to prove (in case such an issue is raised) by whom and when the indorsements pleaded.were made — in effect that tb,ey are genuine — that does not impair their force as a matter of pleading.
Language was used in Elder v. Dyer, 26 Kan. 604, to some extent in apparent conflict with the conclusion we have reached. It was there said that because the petition did not allege that the indorse-ments of payments were placed on the note sued upon at the times of their dates or at any time within the period of limitation, or that they were made by the direction or with the consent of the makers, their effect was merely to give the defendant the benefit of the credits and not to suspend the operation of the statute. This statement was not only unnecessary to the decision but was outside the controversy presented. As indicated by the record and confirmed by the briefs in this court, the plaintiff did not rely upon the indorse-ments as tolling the statute of limitation, and no other issue was presented than whether a letter written by the defendant constituted an acknowledgment of the debt. The portion of the opinion regarding the effect of setting out the indorsements was obviously written without weighing the considerations bearing on that matter which we have suggested and does not constitute an authoritative declaration on the subject.
The judgment is affirmed. | [
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The opinion of the Court was delivered by
Marshall, J.:
Plaintiff seeks to recover under the workmen’s compensation act. Judgment was rendered in favor of the defendant on a demurrer to the petition. The plaintiff appeals.
The petition alleges facts to bring the defendant within the terms of the workmen’s compensation act. The defendant was. engaged in building a hard-surface road near Peck, situated in Sedgwick county. The plaintiff was engaged in hauling brick by team and wagon from the railroad at Peck to the place of construction of the highway. The petition alleges—
“That this plaintiff was engaged in transporting brick as aforesaid, and in performing said service was using two teams. That he had partially loaded one wagon from a car of brick and was moving said wagon to another car to complete the load. That the foreman on the job was George Hill, commonly called ‘straw boss’ or foreman. That the said Hill was objecting to this plaintiff hauling more than two loads per team per day. That the time keeper of the said defendant," John Sprinkle, and superior in authority to said Hill, had theretofore and about one week prior, directed this plaintiff to haul as many loads as he could each day. That while this plaintiff was engaged in said occupation, and while he was in the act of fastening the lines used in driving said team, to the standard of said wagon, preparatory to completing said load, the foreman, George Hill, in order to prevent this plaintiff from proceeding with his said work, struck him from behind, a violent blow over the head, just above the right ear, crushing the skull, knocking this plaintiff insensible, so that this plaintiff was wholly incapacitated from doing any kind or character of labor for a period of four months, resulting in a total incapacity for labor for said length of time.”
In Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657, this court said:
“The defendant operates two open-pit coal mines, known as the east mine and the west mine, which are about a quarter of a mile apart. They are separated by an interurban railway, which passes within about thirty yards of the west mine. A workman in the east mine was ordered by his foreman to go on a necessary errand to the west mine. When crossing the railway track the workman was struck by a car, and sustained injuries which proved fatal. In an action for compensation under the workmen's compensation act, the petition, which was otherwise sufficient, presented the foregoing facts. Held, a demurrer to the petition was rightfully sustained, because the accident did not occur on or in or about a mine, within the meaning of section 6 of the act.”
In Hicks v. Swift & Co., 101 Kan. 760, 168 Pac. 905, this language was used:
“The workmen’s compensation act, being by its terms limited to injuries occurring ‘on, in or about’ a factory or other designated establishment, does not authorize a recovery against the owner of a packing house on account of injuries received by a truck driver while engaged in delivering meat to customers.”
In Stuart v. Kansas City, 102 Kan. 307, 171 Pac. 913, the following language was quoted from Workmen’s Compensation Acts, a Corpus Juris treatise, by Donald J. Kiser:
“An employee is not entitled to compensation for an injury which was the result of sportive acts of employees, or horseplay or skylarking, whether it is instigated by the employee, or whether the employee takes no part in it. If an employee is assaulted by a fellow"workman, whether in anger or in play, an injury so sustained does not arise ‘out of the employment,’ and the employee is not entitled to compensation therefor, unless in a case where the employer knows that the habits of the guilty servant are such that it is unsafe for him to work with other employees.”
In White v. Stockyards Co., 104 Kan. 90, 177 Pac. 522, the syllabus reads:
“An employer is liable under the workmen’s compensation act for injuries sustained by an employee from an electric shock caused by a mischievous prank of his fellow workmen, when it is shown that the perpetration of such pranks had become a custom on the employer’s premises, and consequently had become an incident to the employment.
“The person designated by the master to direct the work of employees is a foreman, however limited in other respects his authority may be, and the knowledge of such foreman that dangerous practical jokes were being perpetrated by some of his employees at the expense of other employees was notice to the master.”
Again, in Romerez v. Swift & Co., 106 Kan. 844, 189 Pac. 923, this court said:
“The deceased, with another Mexican, was engaged in trucking livers in the defendant’s packing house. An altercation occurred between him and a colored ox-tail trucker resulting in a fight which was reported to the foreman. Shortly after this the colored man and another workman were engaged in trucking ox-tails, when the deceased and his partner coming along within ten or twelve feet of them were abused and called names by the colored workmen. The two Mexicans left their truck and approached the colored men and engaged in an altercation with them, during which one of the colored men stabbed and killed the deceased. Held, That the injury did not arise out of employment, and, therefore, the defendant is not liable.”
In McIlvain v. Oil & Gas. Co., 110 Kan. 266, 203 Pac. 701, it was held that—
“One who contracts to haul oil-and-gas easing between the place where it is used and the place where it is repaired, and who employes but one workman to assist in performing the labor, does not come within the provisions of the workmen’s compensation act, although the one for whom the casing is hauled may come within that act.”
From these cases, the rule may be deduced that an employee intentionally injured by another employee cannot recover under the workmen’s compensation act unless the wrongful conduct has become habitual and the habit is known to the employer. Here there is nothing to show that the conduct of the foreman was habitual or that the employer had any knowledge of it.
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The opinion of the court was delivered by
Schroedee, J.:
This is an appeal from an order of the trial court dismissing the first two counts in plaintiffs’ three-count petition, based upon fraudulent representations made by the defendants inducing the plaintiffs to sell certain real estate. The first count seeks rescission, compensatory and punitive damages; the second count seeks, in the alternative, injunctive relief, compensatory and punitive damages; and the third count, likewise in the alternative, seeks compensatory and punitive damages.
The issue on appeal is whether the first two counts state a claim upon which relief can he granted, in view of the facts and circumstances disclosed at the hearing on the motion for summary judgment.
The petition alleges that in the spring of 1967 defendant Paul S. Jones, a licensed realtor in Pittsburg, Kansas, approached the plaintiffs with a proposition whereby he would act as a real estate agent to sell certain lots owned by the plaintiffs in Pittsburg, to an oil company to he used as a service station. At that time Jones knew the plaintiffs had acquired the lots to erect a restaurant, but later acquired another site in the immediate area upon which the plaintiffs had erected two restaurants, which were open for business at all times material to the action. It related that the representations were made for the purpose of inducing plaintiffs to sell their lots, and that at the time Jones knew the plaintiffs would not sell their lots to anyone for the purpose of being used in competition with plaintiffs’ restaurant business. The petition alleged that, induced by Jones’ misrepresentation concerning the identity of the ultimate purchaser and the use to which the property was to be put, plaintiffs agreed to employ Jones as their real estate agent, entered into a written agreement with Jones, a copy of which was marked Exhibit “A” and attached to the petition; that in this agreement, Exhibit “A,” Jones was named as purchaser, rather than the oil company represented to be the ultimate purchaser, at the request of Jones and upon his representation that such procedure would facilitate the transaction. Pursuant to the agreement the plaintiffs executed a warranty deed to the defendants on May 10,1967, a copy of which was attached to the petition as Exhibit “B.” After the sale and deed had been completed and within two weeks preceding the filing of this action, the plaintiffs learned for the first time that the properties were not in fact to be used by the oil company for a service station, but on the contrary, defendants were going to erect a dñve-in restaurant on the premises.
The plaintiffs further alleged that the erection of such a restaurant by the defendants at this location would be in competition with their own restaurant business located in and near the same area, and would substantially damage the plaintiffs’ operations. It alleged the defendant Paul S. Jones charged to and collected from the plaintiffs a real estate commission of $1,800.
The petition alleged the representations made by Jones, concerning the identity of his alleged client and the use to which the premises were to be put were material representations, were made for the purpose of inducing the sale; that they did in fact induce the sale and execution of the deed; that the representations were false; that Jones knew they were false; and that the plaintiffs would not have executed the agreement and deed except for such false and fraudulent representations.
It alleged the two lots at the time of sale were occupied by two residences, which the defendants had since razed, and that each of these residences was worth the sum of $10,000.
The petition stated that in the future the plaintiffs’ restaurant would suffer irreparable, continuing and substantial damages if the defendants were permitted to complete the erection of the proposed restaurant and operate it in competition with the business of the plaintiffs, and the plaintiffs have no adequate remedy at law. Count I of the petition prayed for rescission of the contract, for return of the commission wrongfully collected in the sum of $1,800, for $20,000 damages by reason of the destruction of the residences formerly located on the properties, and for punitive damages in the sum of $50,000.
Count II incorporated the foregoing allegations, and in the alternative prayed for a decree perpetually enjoining the defendants from constructing or operating the proposed restaurant, for compensatory damages in the sum of $10,000, and for punitive damages in the sum of $50,000.
Count III incorporated the allegations of Count I, and in the alternative prayed for $50,000 compensatory damages and $50,000 punitive damages.
Under the terms of the agreement between the plaintiffs and defendant Paul S. Jones, the purchase price of the lots was $31,800, of which $23,068.43 was represented by a mortgage to First Federal Savings and Loan of Parsons, which was assumed by the defendants.
The defendants filed a motion to dismiss Counts I and II of the petition for failure to state a claim upon which relief can be granted. This motion alleged that after the completion of the sale between the parties, the defendants mortgaged the property to the National Bank of Pittsburg for $75,000 and executed a lease of the premises to Burger Chef Systems, Inc., both of whom are said to have had no knowledge of the facts alleged in the plaintiffs’ petition and that they were innocent purchasers of interests in the property and entitled to protection under the law. The motion also alleged the defendants have made substantial alterations in the property, including removal of improvements, grading of the land, and construction of driveways and sidewalks; and that it would be impossible for the parties to be restored to the position they each were in at the time of the execution of the deed.
The defendants state the relief prayed for affirms and disaffirms the contract and deed, and since the plaintiffs at sometime during this proceeding will be required to elect between these remedies, they should be required to do so at this time in view of the rules of law preventing the remedies sought in the first and second counts of the petition. Defendants further claim the plaintiffs have an adequate remedy at law for damages and such remedy is more suitable and more likely to result in justice to the parties.
A copy of the mortgage to the National Bank of Pittsburg in the sum of $75,000, dated August 30, 1967, and a copy of the land and building lease to Burger Chef Systems, Inc., dated August 22, 1967, were attached to the motion. This was a lease for fifteen years to commence when the improvements shall be fully completed, and the improvements were to be completed on or before February 1, 1968. The lease also contained an option for an additional five-year term. The agreed rental was $11,000 annually.
Another exhibit attached to the motion reflected that Cobb Brothers Construction Company had entered into a proposal to erect the restaurant for the defendants for the sum of $50,000, to be completed by February 1, 1968. The contractor would have no responsibility for any delay for causes beyond his control.
Defendant Paul S. Jones also attached an affidavit to the motion relating that he bought the property from the plaintiffs and paid off the mortgage to First Federal Savings and Loan; that he bought the property for a drive-in restaurant and also had to purchase an adjoining property for $25,000; that he had executed the mortgage to the National Bank of Pittsburg for $75,000 on the three lots, and had paid out of the proceeds of that mortgage the sum of $22,494.57 to First Federal; that he had made three payments on the mortgage before it was liquidated aggregating $741; that he had entered into the lease with Burger Chef Systems, Inc.; that he had entered into the contract with Cobb Brothers Construction Company of Pitts-burg; that after the suit was filed the National Bank of Pittsburg stopped its financing until the issues in Counts I and II were resolved; that construction had been thereupon halted by the defendants; and that defendants had expended to date the sum of $56,-013.83, which did not include defendants’ obligation to Cobb Brothers Construction Company, itemized in Exhibit No. 4, attached.
In the original petition filed by the plaintiffs, there was no offer of restitution or of restoration of status quo. On the 13th day of October, 1967, at the hearing on the motion after the defendants’ evidence was presented, the plaintiffs upon leave of the court filed an amendment to the petition as follows:
“Plaintiffs amend Count I of the petition by offering to refund to the defendants the amount paid by them to the plaintiffs. Plaintiffs, however, reassert their right to collect from defendants the sum of $1,800.00 wrongfully collected as commission, the sum of $20,000.00 for destruction of the residences formerly located on the said properties, and to punitive damages in the sum of $50,000.00.”
At the hearing it was stipulated by plantiffs’ counsel “that The National Bank of Pittsburg, Kansas, at the time of the hearing held a valid and subsisting mortgage of record on the real estate in question in the sum of $75,000.00, and that the lease between the defendants and Burger Chef Systems, Inc. was a valid and subsisting lease at the time of the hearing.”
At the hearing the defendants introduced the mortgage, the lease, the construction contract, and Exhibit No. 4 itemizing the expenditures made by the defendants to the date of hearing, all of which were admitted in evidence. Also admitted in evidence at the hearing were the affidavit of Paul S. Jones and the oral testimony of Rex W. Crowley, president of the National Bank of Pittsburg, Bucky Walters, area representative for Burger Chef Systems, Inc., and Wesley Cobb of Cobb Brothers Construction Company. The plaintiffs presented no evidence and filed no counter affidavit, but agreed and presented the law applicable in support of their contention that the court should deny the defendants’ motion.
Based upon the pleadings, the motion and the foregoing evidence, the trial court after hearing the matter sustained the motion to dismiss Counts I and II.
Appeal has been duly perfected from that judgment.
The appellants (plaintiffs below) complain that the appellees’ motion to dismiss was sustained by the district court without having heard any testimony whatever in support of the appellants’ contentions, by discovery or otherwise. They rely upon the proposition that a summary judgment proceeding is not a trial by affidavits, and the parties must always be afforded a trial when there is a good faith dispute over the facts, citing K. S. A. 60-256 (c); Herl v. State Bank of Parsons, 195 Kan. 35, 37, 403 P. 2d 110; Brick v. City of Wichita, 195 Kan. 206, 210, 403 P. 2d 964; and Secrist v. Turley, 196 Kan. 572, 575, 576, 412 P. 2d 976.
The appellants concede, however, they are in no position to make any strenuous complaint concerning the introduction of oral testimony at the hearing on the appellees’ motion to dismiss because they “made no objection to the introduction of such testimony, and, in fact, were interested to know what the witnesses would have to say on the subject.”
The appellants concede “In effect what the court did was to treat the motion to dismiss as a motion for summary judgment, as it had the power to do under K. S. A. 60-212 (&).”
Under these circumstances where the appellants introduced no evidence at the hearing on the defendants’ motion, and do not object to the motion being heard at the time it is set, they cannot later object because they had no time for discovery, having failed to request such right of discovery at the time the matter was before the trial court.
The facts alleged in the appellants’ petition are conceded for the purpose of the appellees’ motion. There is no dispute over the facts alleged in the pleadings. Likewise, as the record stands, there is no dispute over the facts admitted on the appellees’ motion.
In other words, the appellees concede the plaintiffs have stated a cause of action in all three counts of their petition on the issue of fraud, but this is not the question submitted to the court by the appellees’ motion — that issue is whether or not Counts I and II of the petition state a claim upon which relief can be granted in favor of the appellees under the facts and circumstances disclosed at the hearing on the motion.
Rriefly stated, the appellees disclosed by their evidence at the hearing on the motion that innocent parties, namely the National Bank of Pittsburg and Burger Chef Systems, Inc., had acquired interests in the property, without knowledge of the facts alleged in the appellants’ petition, as innocent purchasers.
The appellees’ evidence also disclosed they had made such substantial and material changes in the property that it would be impossible for the parties to be restored to the position that each was in at the time of the execution of the deed.
Briefly stated, the appellants’ position is that they have stated a cause of action in three counts alleging fraud by reason of misrepresentation made by the appellee Paul S. Jones, as a real estate agent employed by the appellants and for which he collected a real •estate commission for the sale to himself in the sum of $1,800; that he misrepresented to the appellants the ultimate purchaser was an •oil company who would use the premises for a service station, whereas in fact the appellees were purchasing the lots for themselves for the purpose of constructing a restaurant in the same area as the •appellants’ restaurants to compete with the appellants in the restaurant business. (Citing 2 A. L. R. 2d 1119; and Merchant v. Foreman, 182 Kan. 550, 322 P. 2d 740.)
The appellants also rely upon K. S. A. 60-218 for the proposition that they may join in their petition as independent or as alternative ■claims as many claims, either legal, equitable or both, as they may have against an opposing party. (Citing, Chappell & Co. v. Palermo Cafe Co., 249 F. 2d 77 [1st Cir. 1957]; and Blazer v. Black, 196 F. 2d 139 [10th Cir. 1952].)
While the appellants concede that after the sale and before the .suit was brought, the appellees had mortgaged the property, executed the lease, had razed the two residential properties, and had through a contractor started erection of their restaurant, they nevertheless contend “all of these changes in position were by the wrongdoer and not by what, for the purpose of the motion to dismiss, must be considered as the innocent victim.”
They contend the evidence will disclose that the wrongdoer can repay the mortgagee, can pay whatever the contractor has coming to him, and that the lessee would be in no worse position than it was before, because its lease would not commence until completion ■of the building, so that the lessee would owe nothing, just as it was situated at the time of the lawsuit.
The appellants rely upon Laun v. Kipp, 155 Wis. 347, 145 N. W. 183, 5 A. L. R. 655, for the proposition that equity is not powerless, quoting from the opinion as follows:
“There is no written law placing a limit upon the power of equity to remedy and redress wrongs, neither is there any want of power in that regard in the written law. It is the crowning merit of our system that, so far as power is concerned, it is as limitless as the capacity of man to wrong a fellow man. Courts may well proceed with great care in exercising then- supreme authority outside of the field of ordinary judicial activity, but should never doubt or suggest want of power to deal with any situation where otherwise one person would be seriously injured by another in his person or property. The judicial arm of the people stands for its whole sovereign authority in that field, and so, in the very nature of things, must, in the final analysis, be limited only by the boundaries of justice and be taken as infallible as regards what is just under all the circumstances of any particular situation. . . .” (p. 367.)
Kansas cases to like effect cited are Stady v. The Texas Company, 150 Kan. 420, 94 P. 2d 322; and Strait v. Fuller, 184 Kan. 120, 334 P. 2d 385.
The primary concern of the appellants appears to be that they will have difficulty proving damages in the event the action taken by the trial court dismissing their first two counts is sustained. They argue: “At the time the suit was filed plaintiffs’ restaurant was no more than two vacant lots and a part of a sidewalk. The evidence will also be that the plaintiffs’ own restaurant businesses had not been long in operation. It will, therefore, be most difficult to establish precisely how much in dollars and cents plaintiffs will be damaged by loss of business and profit as a result of plaintiffs’ [defendants’] drive-in which had not been constructed. In other words, there is no experience by which to measure with any precision the loss of profit which will be suffered by the plaintiffs. We only know that it will be substantial.”
We fail to see merit in the appellants’ position.
The facts are undisputed that the appellees executed a mortgage to the National Bank of Pittsburg in the sum of $75,000 covering the property which is the subject matter of this action and other property acquired by the appellees adjacent thereto. The bank, at the time of the execution of the mortgage, had no knowledge of the facts alleged by the appellants. By reason thereof it enjoys the status of an innocent purchaser. The lien of this mortgage cannot, therefore, be defeated by any judgment of this court in the instant case. The bank is entitled to protection as an innocent purchaser,, regardless of the outcome of this lawsuit.
Burger Chef Systems, Inc. acquired a lease on this property for a term of fifteen years with an option for an additional five years at an agreed rental. This lease was acquired without any knowledge of the facts alleged by the appellants, and Burger Chef enjoys the status of an innocent purchaser. It is entitled to the interest acquired in this property by its lease. Burger Chef is an innocent purchaser for value and regardless of the outcome of this lawsuit, it; should be protected in its right to use this property for the term of its lease.
The foregoing conclusions as to the interests of the bank and Burger Chef are the result of a rule in equity overriding the rule asserted by the appellants. It provides that where one of two innocent persons must suffer by the fraud of another, he who trusted the third person and placed the means in his hands to commit the wrong must bear the loss. At this point in the proceedings in the instant case, the bank and Burger Chef are innocent persons. The appellants are the persons who trusted the wrongdoer (Jones) and placed the means in his (Jones’) hands to commit the wrong. Therefore, the appellants must bear the loss.
The rule is well stated in Jordan v. McNeil, 25 Kan. 459. There the court reviewed Somes v. Brewer, 2 Pick. 184, wherein a grantee obtained a deed of land by fraud and imposition upon the grantor and without consideration. Later the grantee conveyed the land to a bona fide purchaser for a valuable consideration without notice ■of the fraud, and it was held the purchaser had a valid title as against the first grantor, saying:
“. . . In this case, Parker, C. J., after a careful and exhaustive review ■of the authorities, thus epitomizes the law: That a deed made under such ■circumstances (that is, in fraud of the grantor’s rights) ‘is not a nullity, but that it is effectual to pass the estate, and that it remains valid until defeated by the grantor or those who have the right under him; so that a conveyance from a fraudulent grantee to a third person without notice, for a valuable consideration, will vest an indefeasible title in such second purchaser. This Fas been the received doctrine from the earliest times, not alone in this country ■and England, but also in those countries which act upon the civil law as an authoritative code/ (2 Pick. 196.)
“This doctrine, that a deed obtained through fraud and deceit is only voidable, and that a bona fide purchaser, for value, without notice, will hold the property, is supported by a large number of authorities, among them Cook v. Moore, 39 Tex. 255; Deputy v. Stapleford, 19 Cal. 302; 3 Washburn on Real Property, p. 299. It is a general principle of law, that wherever one of two innocent persons must suffer loss on account of the wrongful acts of a third, he who has enabled the third person to occasion the loss must be the person who shall suffer.” (pp. 464, 465.)
The rule was restated and applied to a mortgage situation in Lawrence v. Investment Co., 51 Kan. 222, 32 Pac. 816, in the following language:
“. . . By their conveyance, the grantee was held out to the world as the owner of the land, and innocent persons were thereby invited to deal with her as such owner. The rule in equity which controls is, that where one of two innocent persons must suffer by the fraud of a third person, he who trusted the third person and placed the means in his hands to commit the wrong must bear the loss. (Jordan v. McNeil, 25 Kas. 459.) In that case it was held that a conveyance obtained through fraud and deceit is not a nullity, but that a conveyance from the fraudulent grantee to a third person who purchased the property in good faith and for a consideration will be held valid as against the first grantor. In McNeil v. Jordan, 28 Kas. 7, this same doctrine was reaffirmed, and it was held that the grantor of the fraudulent deed must suffer loss rather than an innocent purchaser or some one who in good faith had obtained a mortgage from the fraudulent grantee. . . .” (p. 231.)
The foregoing rule is in effect reiterated but stated differently in West v. Lumber Co., 56 Kan. 287, 43 Pac. 239. There the plaintiff was induced by fraud to convey title to a tract of real estate to the defendant, and the plaintiff brought an action to set aside the conveyance and discharge the property from all liens of third parties, who had relied upon the apparent title of the fraudulent purchaser and had furnished materials and labor in the construction of buildings on the property. The court said: “The plaintiff saw fit to invest Parker with the legal title to the lots. ... By his own act he had given Parker the full title to the property, and the persons constructing the buildings contemplated by the bargain itself made between him and Parker had a right to rely on Parker’s apparent title to the property.” (pp. 289, 290.)
The foregoing rule controls the disposition of this case and applies to foreclose the appellants’ attempt to rescind the contract and conveyance, or in the alternative, to foreclose the appellants’ attempt to obtain injunctive relief. Both the National Bank of Pittsburg and Burger Chef Systems, Inc. are entitled to the benefits of their respective bargains, and the remedies sought by the appellants in Counts I and II of their petition are not available, because the facts alleged in each of such counts fail to state a claim upon which relief can be granted.
By reason thereof consideration of other infirmities asserted by the appellees regarding the appellants’ attempt to rescind the conveyance to obtain restitution is immaterial. Likewise, consideration of other infirmities asserted by the appellees regarding the appellants’ attempt to obtain injunctive relief is immaterial.
Accordingly, the judgment of the district court dismissing Counts I and II of the appellants’ petition is correct.
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The opinion of the court was delivered by
Kaul, J.:
Plaintiff-appellant appeals from an order of the trial court which sustained motions for defendant and third party de fendant for dismissal of plaintiff’s action. The motions were made at pretrial conference and were based on the ground that plaintiff’s action was barred by applicable statutes of limitation.
For convenience the appellant will be referred to as Freeto or plaintiff and appellees as American Hoist and Wamer-Swazey or ■collectively as defendants.
There is no dispute in the facts which are collected from the pleadings, interrogatories and statements of counsel at a pretrial conference.
The action was instituted by Freeto to recover damages sustained by it for repairs and loss of use resulting from the breakdown of a ■self-propelled truck crane sold to Freeto by American Hoist. The crane carrier was manufactured by Wamer-Swazey and delivered to American Hoist, who manufactured the hoist, assembled it on the carrier and sold and delivered the completed crane, through its distributor, to Freeto.
The sole issue presented concerns the application of appropriate statutes of limitation. This necessitates a recitation of events in chronological order.
On March 25, 1958, Warner-Swazey having manufactured the carrier, delivered it to American Hoist.
On May 7, 1959, American Hoist having manufactured the hoist, attached it to the carrier, sold and delivered the assembled truck crane, through its distributor, to Freeto.
On September 25, 1964, when being used in Freeto’s business the crane failed while carrying a load which was allegedly within the load limits stated in literature of American Hoist concerning the particular model truck crane. Specifically, two large bolts attaching the outrigger frame of the hoist to the frame of the carrier gave way, causing the load to shift and fall, extensively damaging the crane and the load which consisted of a section of an asphalt plant.
On September 24, 1966, one day short of two years from the date of the crane failure, Freeto filed its petition in abbreviated notice form against American Hoist. Freeto alleged American Hoist was negligent in the construction of the crane and that “this negligence amounted to a breach of express warranty of implied fitness for a particular purpose.”
Summons and a copy of the petition were served on American Hoist on September 28, 1966.
On November 9, 1966, American Hoist filed its answer to Freeto’s petition and a third party petition against Warner-Swazey. Summons was served on Warner-Swazey on November 23, 1966, making it a third party defendant.
Interrogatories were submitted and answered by which the chronology of events was developed.
On February 6,1967, American Hoist filed a supplemental answer alleging that Freeto’s action was barred by the statute of limitations.
After further interrogatories were submitted and answered, a pretrial conference was convened on September 22, 1967. The dates of events, heretofore recited, were stipulated to by the parties, issues were defined and at the conclusion of the conference the court carefully dictated a pretrial order in the presence of counsel. The court concluded the order with the following directions:
“The reporter -will transcribe this pretrial order and mail copies to counsel at least seven days before it is filed with the Clerk. During that time counsel will please advise the court of any errors or omissions in the pretrial order or any corrections or additions that should be made thereto.”
The trial court served the pretrial order upon counsel on October 12, 1967, and filed it October 23, 1967. No objections were made to the order as drawn.
The pretrial order contained the following statement of the court:
“. . . The action is one on contract for breach of express and implied written and oral warranties of fitness for a particular purpose. . . .”
Following the pretrial conference, Warner-Swazey filed a motion for summary judgment alleging that as against it the petition and third party petition were barred by the Kansas Statutes of Limitation.
Briefs of all parties dealing with the application of statutes of limitation were submitted and, on February 7, 1968, the trial court filed a memorandum decision. The trial court held that both the action of Freeto and the third party action of American Hoist were founded in contract and barred by the applicable statute of limitations.
Freeto filed a notice of appeal, directed to both American Hoist and Warner-Swazey.
Warner-Swazey contends the appeal as to it should be dismissed since Freeto sought no judgment against it and American Hoist has not appealed from the order dismissing its third party action. Because of our disposition of this appeal, it is not necessary to deal with Warner-Swazey s position in this regard.
In its memorandum decision the trial court recited the chronology of events, as we have related, set out the contentions of the parties and legal principles applicable, and decided the issues as follows:
“5. The court finds that the action is one for breach of contract. The suit was not filed alternatively in contract and tort, but was filed as a breach of contract action. That is established by the petition and by the court’s pretrial order of September 22nd, 1967. An action for breach of contract, for breach of an implied or express warranty, accrues at the time of the breach (Price, Admr. v. Holmes, 198 Kan. 100, 422 P. 2d 976), and this would be on the date the truck crane was delivered to the plaintiff, May 7, 1959. Accordingly, both the five and three year limitations provided by K. S. A. 60-511 and 512 expired prior to the filing of the petition herein and the action is barred.
“6. The court has not overlooked plaintiff’s contention that the warranty was prospective rather than present; however, under the facts, it is apparent that the warranty was not as to the condition of the crane on some future date or what it would do on some future period, but the warranty was as to the condition and capabilities of the crane at the time of delivery, and the court finds that die warranty was a present warranty at that time. It is interesting to note that K. S. A. 84-2-725 (2), a portion of the Uniform Commercial Code enacted by the 1965 Legislature (which provision was not effective at the times herein involved) provides specifically that a breach of warranty occurs at the time of delivery except where a warranty explicitly extends to future performance. Perhaps that was the law of Kansas prior to the enactment of that section of the U. C. C. However, in the instant case there was no warranty explicitly extending to future performance so far as the court is informed, and if the section were applicable it would not aid plaintiff.
"7. Many prior cases of the Kansas Supreme Court have stated the rule that an action for breach of contract accrues when the breach occurs rather than on the date the actual damage results from the breach. It appears to this court that any change in this rule must come from the Legislature; and that neither the Code of Civil Procedure nor the Uniform Commercial Code alters the law in this regard.
“8. The court concludes that both the action of plaintiff and the third-party petition (which also is founded in contract) are barred by the applicable statutes of limitation and this case should be dismissed at plaintiff’s costs. Counsel for defendant American Hoist will please prepare an appropriate journal entry.”
It should be noted the trial court did not specifically find whether the action was for breach of an express warranty, written or oral, or of an implied warranty. This question was probably not susceptible to determination by the trial court at that stage of the litigation. Apparently, the court considered Freeto’s petition and statements by counsel broad enough in this respect to allow proceeding on either premise in the alternative. Be that as it may, the trial court proceeded to dispose of the action on either theory by applying a five-year limitation to an action on a written contract under Laws of 1965, Chapter 354, Section 12, effective January 1, 1966, now K. S. A. 1968 Supp. 60-511 and a three-year limitation to an action on an oral or implied contract under K. S. A. 60-512.
Freeto first takes issue with the trial court’s ruling that the action is one founded in contract.
In its brief, Freeto concedes the petition to be admittedly ambiguous but argues that it sufficiently apprises defendant (American Hoist) of the nature of the action so that it could be submitted as a tort action on the theory of ordinary negligence in the design and manufacture of the crane, or on the theory of a breach of warranty for a particular purpose, even though either theory was not strictly framed by the pleadings or pretrial order.
As a tort action, Freeto says its petition was timely filed within the limitation of K. S. A. 60-513(2), now K. S. A. 1968 Supp. 60-513(2), applicable to actions for injury to personal property, since the action was filed one day within the two-year period following the breakdown of the crane. Applying a further proviso of 60-513 Freeto claims its cause of action in tort did not accrue until the breakdown on September 25, 1964, when injury was first caused which was well within the ten-year limitation applicable to an action for injury to personal property under such circumstances. It should be noted the proviso referred to is not found in 60'511, supra, pertaining to actions on written contracts or in 60-512, supra, pertaining to actions on oral or implied contracts.
American Hoist and Wamer-Swazey answer Freeto’s argument by pointing out that the trial court recorded the statement of Freeto’s counsel, that the action was based on contract, and that no objection was made by Freeto when the pretrial order was dictated by the court or later when the order was submitted to counsel. Defendant’s claim that since Freeto made no attempt to amend its theory or to modify the pretrial order, the subsequent course of the action is controlled thereby.
We are compelled to agree with the position adopted by defendants.
The purpose and effect of a pretrial order is clearly defined by the statutory and case law of this state. K. S. A. 60-216 provides for procedure and matters to be considered at pretrial conference. With respect to a pretrial order the statute directs:
“. . . ; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. . . .”
The force of a pretrial order under the provisions of 60-216, supra, was noted in Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912, where we stated:
“. . . Orders entered at pretrial conference have the full force of other orders of court and they control the subsequent course of the action, unless modified at the trial to prevent manifest injustice (K. S. A. 60-216). . . (p. 519.)
As we have already noted, Freeto made no attempt before the trial court to amend the theory of its action or to modify the pretrial order. It follows the pretrial order must control the subsequent course of the action. (Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 437 P. 2d 219; Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P. 2d 380; Brown v. Hardin, supra; Owen v. Schwartz, 177 F. 2d 641, 14 A. L. R. 2d 1337.)
Having determined the action was one for breach of contract, the trial court correctly ruled that whether it be for breach of an express or of an implied warranty the action accrues at the time of breach. In this case the breach occurred when the crane was sold and delivered, having been allegedly designed and assembled in a manner inadequate to sustain the warranted load capacity.
In Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P. 2d 986, the action was against the estate of a deceased plumbing contractor to recover damages sustained by the owner of a new house, resulting from the installation of plumbing fixtures in a negligent and unworkmanlike manner. The controlling question was whether the action survived the death of the deceased plumbing contractor which in turn depended upon when the cause of action accrued. This court resolved the question by holding that an implied warranty stemmed from the contractual relationship between the parties and that the implied warranty was breached when the plumbing was installed and the job completed. In the opinion we find the applicable rule succinctly stated and supported by ample authority:
“. . . Where there is a contractual relationship between the parties, the plaintiff's cause of action accrues when the contract or agreement is breached. (Regier v. Amerada Petroleum Corp., 139 Kan. 177, 181, 182, 30 P. 2d 136; Dougherty v. Norlin, supra; Rex v. Warner, 183 Kan. 763, 769, 770, 332 P. 2d 572.) See, also, Rucker v. Hagar, et al., 117 Kan. 76, 230 Pac. 70.
“In 1 Am. Jur., Actions, § 62, p. 453, the rule is stated as follows:
“ ‘A cause of action in contract accrues at the time of the breach or failure to do the thing agreed to, irrespective of any knowledge on the part of the plaintiff or of any actual injury it has occasioned him. . . .’
“Since it is the breach of a contractual duty — here, an implied warranty— which gives rise to the cause of action, claimant could have proceeded immediately following that breach whether or not actual damage had resulted, and would have been entitled to recover nominal damages, if nothing more (12 Am. Jur., Contracts, § 388, p. 965; 25 C. J. S., Damages, § 9, p. 466, 467). . . .’’ (pp. 507, 508.)
Although the question in Crdbb did not involve the statute of limitations, we believe the factual background there, and ihe legal issue framed relative to the accrual of an action for breach of warranty, to be so analogous as to be controlling here. It is to be noted the Kansas cases cited in the above quotation from the Crdbb opinion deal with the application of the accrual of action rule as applied to either breach of contract or breach of warranty with respect to the application of the appropriate statute of limitations. The observations of the trial court in paragraph No. 7 of its memorandum decision is quite similar to language found in several of the cases mentioned.
The decision in Crdbb was discussed and the principles announced therein were applied in the more recent case of Price, Administrator v. Holmes, 198 Kan. 100, 422 P. 2d 976, wherein the court was again-confronted with a survival of action problem.
Finally, Freeto makes the alternative contention that even though its action is for breach of contract, nevertheless the trial court erred in finding the warranty sued upon to be a present warranty rather than prospective and continuing.
On this point we are again in agreement with the trial court’s, finding that there are no facts in the record suggesting a warranty as to the condition or capability of the crane on a date more than five years after its sale and delivery. We think it safe to assume-that if there were any written or oral warranty as to condition or capability for any specified time, after delivery or any premise upon-which such a warranty might be implied, the facts giving rise-to a basis therefor would certainly have appeared in the record at the instance of plaintiff.
Freeto cites Naaf v. Griffitts, 201 Kan. 64, 439 P. 2d 83. The case-involved the proof of a seller’s express warranty that heifers would, calve during a certain period and timeliness of notice of the alleged: breach of warranty. We find nothing in ihe opinion which would' tend to support Freeto’s claim of prospective warranty in the instant case.
As noted by the trial court, the Uniform Commercial Code, enacted in 1965, does not effect this action. However, we believe the provisions of K. S. A. 84-2-725 to be substantially in accordance with decisions of this court, in particular with the principles set out in Price, Administrator v. Holmes, supra; Crabb v. Swindler, Administratrix, supra; Challis v. Hartloff, 136 Kan. 823, 18 P. 2d 199.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from an order of the Osage district court denying appellant’s motion initiated pursuant to K. S. A. 60-1507, to vacate the judgment and sentence imposed by that court.
The district court granted the appellant an evidentiary hearing at which the appellant and the state offered evidence. The district court made comprehensive and detailed findings of fact, and the story of this proceeding is best told by quoting in full those findings:
“1. On July 10, 1965, a warrant issued on a Complaint filed that date, charging the defendant with bank robbery, was returned and on the same day, preliminary examination was waived and the defendant was bound over to the District Court of Osage County, Kansas, for trial.
“On July 15, 1965, in the District Court, the defendant was found indigent and Charles Heizer was appointed as attorney for the defendant.
“2. On October 4, 1965, on motion of the state, an insanity commission was appointed to determine if the defendant was sane and able to comprehend his position and make his defense. The Court appointed Dr. Alfred Paul Bay, Superintendent of the State Hospital at Topeka, Kansas, and Dr. Howard Williams, a member of the staff of such institution, as the commission for such purpose. The commission made report on October 11, 1965, that the defendant was sane and able to comprehend his position and to make his defense.
“3. On October 21, 1965, Motion to Quash was argued, raising among other objections the question of constitutionality of K. S. A. 21-531. The motion was sustained as to ground 2 alleging indefiniteness and insufficiency as to the description of the property alleged to be stolen and was overruled on all other grounds. The state was granted leave to amend generally.
“4. On November 2, 1965, the defendant was duly arraigned and pled not guilty by reason of insanity. On motion for that purpose, allowance of funds was authorized for defendant to obtain expert witness for psychiatric examination and testimony. The case was assigned for trial on December 6, 1965, at 9:00 a. m.
“5. On November 24, 1965, on motion of the defendant, the case was continued to December 22,1965, at 9:00 a. m.
“6. On Friday, December 10, 1965, at 5 o’clock, p. m., on finding attorney for defendant had been hospitalized for planned surgery, his withdrawal as appointed attorney was approved and Clyde M. Burns was appointed attorney for defendant and directed to proceed with the discharge of his duties as such. On December 13, 1965, defendant was brought into court, was informed of withdrawal of Charles Heizer as attorney and of appointment of Clyde M. Burns as his attorney. On application and leave granted, defendant withdrew his plea of not guilty by reason of insanity and entered a plea of not guilty.
“On December 22, 1965, trial of the action was commenced and was concluded on December 23, 1965, with verdict of guilty as charged.
“On announcement of intention to file a motion for new trial, time for filing was fixed as on or before December 28, 1965, and the same was assigned for hearing on December 29, 1965.
“7. On December 27, 1965, Motion for a New Trial was filed on the grounds:
“1. For newly discovered evidence.
“2. For the reason that the verdict was contrary to the evidence.
“3. The jury received evidence not authorized by the Court.
“On December 28, 1965, the parties stipulated that the hearing of the motion for a new trial could be held on such date. The motion for a new trial was argued and overruled. Judgment was entered and defendant was sentenced for the crime of bank robbery as defined by K. S. A. 21-531 as charged in the Information to be confined in the Kansas State Penitentiary at Lansing, Kansas, at hard labor for not less than ten nor more than fifty years and there was deducted from his sentence 90 days dating from September 30, 1965, for time spent in jail pending the disposition of the case. Defendant was informed that he had a right to appeal to the Kansas Supreme Court from any adverse decision of the Court and that he might have counsel appointed to assist in the appeal. Defendant’s Motion to Suspend the Execution of the Sentence and For Probation was overruled.
“8. An April 28, 1966, on affidavit filed, and finding of good faith, Clyde M. Burns was appointed as attorney for the defendant to take an appeal and transcript was ordered at the expense of the county. The Clerk was directed to forthwith notify counsel of his appointment and the official reporter of the order for the transcript. Transcript of the trial was prepared and delivered to defendant’s counsel on July 12, 1966.
"9. On May 5, 1966, defendant filed notice of appeal to the Supreme Court with endorsement thereon of service acknowledged and form of proof thereof waived by the County Attorney. The Clerk of the District Court failed and neglected to transmit the notice of appeal to the Clerk of the Supreme Court.
“10. On August 4, 1966, the Court signed written Journal Entry endorsed, submitted by attorney for the defendant and approved by County Attorney and signed by them respectively, granting 30 days to file Designation of Contents of Record on Appeal, and on September 6, 1966, signed a similarly submitted and signed order granting 60 days in which to file the same.
“11. On November 23, 1966, the defendant filed what was labeled as ‘Motion to Dismiss Appeal’ with prayer ‘that the motion be sustained’ and had attached thereto marked ‘Exhibit A,’ made a part thereof, written statement, signed by the defendant as follows:
“ 1, Dale Ralph Johnson, do hereby authorize my attorney, Clyde M. Burns, to dismiss my appeal to the Supreme Court of the State of Kansas from my conviction in the District Court of Osage County, Kansas. I have been advised by my said attorney concerning this abandonment of my appeal and am doing this of my own free will and accord.
“ ‘Dated at Lansing, Kansas, this 3rd day of November, 1966.
“ ‘Dale Ralph Johnson’
“(signed).”
“On presentation the Court entered order in its minutes, ‘On motion of defendant, appeal is dismissed.’ At the same time, the Court authorized the release to the bank of the exhibit of coins and currency, found in defendant’s possession and introduced in evidence.
“12. Pursuant to the provisions of K. S. A. 21-2613, the pistol used by the defendant was, on January 17, 1967, ordered sold by the Court and the same was sold as provided by law.
“13. On December 11, 1967, defendant filed a motion under the procedure provided by K. S. A. 60-1507 and on the same day, the Clerk was directed to issue notice of filing of the same to the County Attorney. The Court appointed Leonard W. McAnarney as attorney for the defendant.
“14. On December 19, 1967, the motion was assigned for trial on February 5,1968, at 9:00 a. m.
“15. On February 5, 1968, the movant, Dale Ralph Johnson, appeared in person and by Leonard W. McAnarney, his attorney, and full hearing was held on the motion with evidence being introduced by both sides.
“16. Under date of January 9, 1966, the defendant, by letter to his attorney, requested him to let the appeal go for now and try and get an appointment with the Governor for a pardon or to commute sentence. The defendant’s mother also made some inquiry about clemency, had consulted an attorney about such matter and had informed the defendant and defendant’s attorney of what she had been doing.
“The defendant had taken inconsistent positions and on some occasions, the defendant informed his attorney that he wanted an appeal and on other occasions, he said not to. The defendant wanted out of the penitentiary the quickest way possible and would change his mind from time to time as the best way to do it. His attorney informed the defendant that he felt there were-no grounds for appeal.
“At the request of defendant’s mother, his attorney went to see the defendant at the penitentiary on November 23, 1967. (Note: This date should be November 3, 1966, as recited in Finding 11). He then informed the defendant that defendant’s mother had consulted an attorney about asking for clemency and was told by defendant that he knew about this. Defendant’s attorney informed the defendant that he had been advised by the pardon-attorney that the Governor would not entertain an application for clemency because an appeal was pending. The defendant informed his attorney that he-wanted to abandon his appeal and try for clemency. At that time at the request of his attorney, defendant signed the instrument identified as Exhibit A. This, was the free and voluntary act of the defendant and the statement was knowingly and understandably made.
“17. A condensed summary of the state’s case disclosed the following: the sheriff and undersheriff were in Overbrook the day the robbery occurred,, became suspicious of a fast moving car dodging in and out of vehicles in a parade then in progress. As they started to follow in investigation, Larry Coursen, who had been in the bank and observed the robbery, drove his car near the sheriff and called out to him that the bank had been robbed. The-sheriff followed the vehicle in hot pursuit at speeds up to 115 miles per hour. The pursued car occupied by the defendant as driver and sole occupant stopped as the sheriff pointed his gun out of the window of the car in which he was riding. A paper sack containing coins and currency and a .22 caliber pistol was on the front seat of defendant’s automobile. Officers from Franklin. County arrived at about the time defendant stopped his car.
“The defendant had been seen in Overbrook that morning by others. He-was identified as having been in the bank and received the money by a witness,. Larry Coursen, who had come into the bank, and also by an officer of the bank. A woman employee who had been the immediate victim of the holdup in which the defendant used the gun identified the defendant and the distinctive-paper sack as having been the one she observed. The amount of money taken from the bank was identical in amount as that found in defendant’s automobile.
“The defendant was thirty-three years of age. His defense was primarily based on claim of insanity. Witnesses called on his behalf were his mother, his wife and to prove no previous record, the sheriff. The defendant also took tire stand in his own behalf and there was no substantial dispute in his testimony with the state’s witnesses as to what occurred.
“Doctor Joseph Satten, a well-known psychiatrist with the Menninger Foundation at Topeka, Kansas, was the psychiatric expert obtained for the defendant as an expert witness. The ultimate fact in his testimony was that the-defendant was driven to commit the crime and wanted to be captured in order that an earlier crime should be paid for; but on cross examination, he testified that defendant knew it was wrong.
“The earlier crime reference concerned an incident in which defendant-apparently shot and killed his father when he was five or six years of age.. Doctor Satten’s testimony as to this event was based on information from the defendant’s mother and wife. This was in addition to the defendant, whose memory of the event was what he had been told.
“At the time of trial, defendant’s attorney had had seven years experience in the practice of law. This included jury trial experience both civil and criminal and both prosecution and defense in criminal cases.
“He tried the case in a good, professional-like manner.
“19. The defendant testified that he had no evidence or knowledge that his Court-appointed attorney committed conspiracy to deny him his right to perfect an appeal and did not offer any other evidence on such claim.
“20. The Court indicated it would permit defendant to withdraw his motion and abandonment of appeal of November 23, 1966, and would direct the notice of appeal to be certified to the Supreme Court for filing. The defendant declined and refused to do so.”
The appellant contends he was denied effective assistance of counsel both during and after his trial in violation of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. He first argues counsel was not prepared to present his case the day of the trial, and the district court erred in overruling his request for a continuance.
With respect to the denial of appellant’s requested continuance, there is nothing in the record to indicate its denial resulted in any prejudice to his substantial rights. The granting or denial of a continuance in a criminal prosecution is largely within the sound discretion of the district court and its ruling will not be disturbed in the absence of a showing that there has been an abuse of discretion which has prejudiced the defendant’s substantial rights. (State v. Patterson, 200 Kan. 176, 434 P. 2d 808; State v. Adamson, 197 Kan. 486, 419 P. 2d 860; State v. Brown, 193 Kan. 654, 396 P. 2d 401; State v. Hickock & Smith, 188 Kan. 473, 363 P. 2d 541, appeal dismissed 373 U. S. 544, 10 L. Ed. 2d 688, 83 S. Ct. 1545.)
The contention that appellant’s attorney was not prepared for trial is not supported by the record. On the contrary, it clearly shows that counsel diligently prepared the appellant’s case and adequately represented him at all times in the district court. Mr. Burns was appointed to represent the appellant nine days before the trial and conferred with him many times. He also conferred with Mr. Heizer, the appellant’s first appointed counsel, while Heizer was confined in the hospital in Topeka. Mr. Burns interviewed all the witnesses involved in the case, and investigated matters pertaining to the charge prior to the trial.
The rule of adequate representation of counsel is stated in Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. den. 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581, as follows:
“[W]hile the law requires legal and faithful representation on the part of counsel for an accused, either employed or court appointed, it does not guarantee the assistance of the most brilliant and experienced counsel . . (1. c. 692.)
“The adequacy of services performed by an attorney on behalf of a client must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells. . . .” (1. c. 693.)
See, also, Ray v. State, 202 Kan. 144, 446 P. 2d 762.
The record clearly indicates that Mr. Burns diligently represented the interests of the appellant. This is confirmed by the testimony of Mr. Burns and Mr. Heizer who testified at the 1507 hearing, and no showing has been made by the appellant why the district court’s determination on the point is erroneous. Effective assistance of counsel cannot be equated with successful assistance of counsel. We conclude the appellant was not denied his right to counsel under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States.
The appellant next contends his counsel conspired to deny him his right to appeal following his conviction in the district court. The findings of the district court are that on November 3, 1966, Mr. Burns visited the appellant at the state penitentiary to discuss the advisability of abandoning his appeal to the supreme court. Mr. Burns advised appellant that if he wanted to abandon his appeal, to-sign the statement set forth in the district court’s findings No. 11. The appellant stated he wanted to abandon the appeal and try for clemency because he was advised by the pardon attorney that the governor would not entertain an application for clemency while an appeal was pending.
There is absolutely no evidence the appellant was coerced into' signing the statement and the district court found he freely and voluntarily signed the same, and that it was knowingly and understandably executed. Furthermore, the appellant testified at the 1507 hearing that he had no evidence or knowledge that Mr. Burns conspired to deny him his right to perfect his appeal. Hence, his contention cannot be sustained.
The record is undisputed that the clerk of the district court was derelict in his duty in failing to transmit the appellant’s timely executed notice of appeal to the clerk of this court. K. S. A. 62-1724 (a) requires that a certified copy of the notice of appeal with proof of service and a certified copy of the journal entry of conviction be sent by the clerk of the district court to the clerk of the supreme court within ten days after the notice of appeal is filed. There was nothing more required to be done by the appellant with respect to perfecting his appeal, and no failure of officers to do their duty can deprive him of that statutory right. (Cochran v. Amrine, 155 Kan. 777, 130 P. 2d 605.) However, regardless of what may have occurred in the appeal procedure, the failure to timely certify the appellant’s notice of appeal to the clerk of this court, under the facts and circumstances here presented, does not affect the validity of his conviction. As indicated, and on November 3, 1966, the appellant freely and voluntarily executed his motion to dismiss his appeal. In addition, and at the close of the evidentiary hearing on his 1507 motion, the district court stated it would permit the appellant to withdraw his 1507 motion, and his motion of abandonment of his appeal of November 3, 1966, and would direct that the notice of appeal from his conviction be certified to the supreme court for filing. However, and in open court, the appellant declined the district court’s offer and refused to appeal.
We have fully reviewed the record and the appellant has failed to affirmatively make it appear the district court committed any error in its findings of fact and conclusions of law, and we conclude the appellant is not entitled to have his sentence vacated.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This controversy stems from a dispute over a rezoning ordinance.
The dispute involves a tract of land in the city of Leavenworth consisting of 600 feet running east and west and 400 feet running north and south. The tract is bounded on the north by Metropolitan Avenue, on the east by 16th Street and on the south by Pawnee Avenue. There are no streets running through the tract. Previous to the ordinance now in question the tract was divided into three separate strips for zoning purposes. The north strip consisting of 150 feet was zoned “E” general business. Roth the north strip and the middle strip in controversy were owned by the same party, Dr. Hoins. The south strip consisting of 100 feet was zoned “A” single family dwelling. It is subdivided into lots and occupied by some of the plaintiffs.
The middle strip consisting of 150 feet was rezoned on July 17, 1967, from class “A” single family dwelling to class “C” apartments. Plaintiffs sought relief from the ordinance rezoning this middle strip in the district court under the provisions of K. S. A. 12-712.
The plaintiffs challenged the ordinance as arbitrary and unreasonable and not being enacted in conformity with the requirements of K. S. A. 1967 Supp. 12-708.
At the close of plaintiffs’ evidence the defendant moved that the case be dismissed because of the failure of the plaintiffs to establish a prima facie case under the law.
The trial court made findings of fact which will not be set forth here, and concluded as a matter of law:
“1. The defendants are entitled to a judgment dismissing this action for the reason that upon the facts and the law the plaintiffs have shown no right to relief.
“2. The evidence presented by the plaintiffs fails to show that Ordinance No. 5751 is unreasonable or void.
“3. Ordinance No. 5751 was enacted by the defendants in conformity with the requirements of K. S. A. 12-708.
“4. Ordinance No. 5751 was not enacted in an arbitrary or unreasonable manner.”
The plaintiffs have appealed to this court from the judgment of dismissal.
We should first give attention to appellants’ procedural suggestion which reads:
“In ruling on the defendant’s motion to dismiss plaintiffs’ case for failure to present a prima facie case, the trial court failed to apply the proper standard. The rule is well stated in Mid State Homes, Inc. v. Hockenbarger, 192 Kan. 505, 389 P. 2d 760:
“ ‘In ruling on a demurrer courts do not weigh or compare contradictory evidence, but accept all the evidence as true, give it the benefit of all inferences that may properly be drawn therefrom, and consider only such portions thereof as are favorable to the party adducing it. . . .’ ”
The Hockenbarger case was tried under the old Code of Civil Procedure. When the new code became effective January 1, 1964, a new rule became applicable. K. S. A. 60-241 (b), dealing with involuntary dismissal, provides in part:
“. . . After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all of the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in section 60-252 (a). . . .”
We have construed this statute as giving the trial judge, in a case tried without a jury, the power to evaluate evidence in a motion for an involuntary dismissal. In Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P. 2d 847, we held:
“Where the defendant in an action tried to the court without a jury moves for involuntary dismissal of the action at the close of the plaintiff’s case pursuant to the provisions of K. S. A. 60-241 (b), based on the ground that upon tire facts and the law the plaintiff has shown no right to relief, the trial judge has the power to weigh and evaluate the evidence in the same manner as if he were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case, overruling Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 408 P. 2d 575.” (Syl. 7.)
The opinion sets out the federal cases construing the Federal Rule from which K. S. A. 60-241 (b) was taken. They will not be repeated here.
The application of the above rule, for all practical purposes, disposes of appellants’ chief contention, which reads:
“The trial court erred in sustaining defendants’ motion to dismiss at the close of plaintiffs’ evidence, for the reason that under the evidence adduced and the reasonable inference therefrom plaintiffs presented a prima facie case entitling them to equitable relief.” (Emphasis supplied.)
We note next the restrictions on judicial review of zoning action taken by the governing body of a city.
In Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P. 2d 261, we stated at page 29 of the opinion:
“The courts must be ever mindful of their limitations in reviewing discretionary orders of administrative bodies. It must be understood that the Board of County Commissioners had the right to prescribe zoning, the right to change zoning and the right to refuse to change zoning. The power of the courts is limited to determining the reasonableness of the action taken by the Board. The court should not substitute its judgment for that of the Board and should not declare its action unreasonable unless clearly compelled to do so by the evidence. (Rich v. City of Wichita, 189 Kan. 323, 369 P. 2d 378.) There is a presumption that the Board acted fairly, reasonably and its act was not discriminatory. It is incumbent upon those attacking the action to show wherein the Board’s action was unreasonable. (Konitz v. Board of County Commissioners, 180 Kan. 230, 236, 303 P. 2d 180.)”
The statement was approved in Arkenberg v. City of Topeka, 197 Kan. 731, 734, 421 P. 2d 213, and applied in an action challenging a city zoning ordinance.
It may be said that about the only substantial evidence submitted by appellants was to the effect that as neighbors they objected to the rezoning for apartments and were fearful that their property would be decreased in value. In Arkenberg v. City of Topeka, supra, we stated at page 738:
“. . . Basically, the controversy resolves itself to this: Certain residents owning their homes in the area object to the building of the proposed apartment; they have stated their reasons; these reasons have been taken into account by the zoning authorities and, in the interest of the entire city, deemed insufficient to prevent the proposed rezoning. Zoning is not to based upon a plebiscite of the neighbors. Their wishes are to be considered but the final ruling is to be governed by the basic consideration of the benefit or harm involved to the community at large (58 Am. Jur., Zoning, §206).”
It should also be noted that during the month of February, 1961, the Leavenworth City Planning Commission adopted a comprehensive plan for the Leavenworth regional area. This regional plan is consulted and used as a guide for the purpose of rezoning. The property in question is designated for commercial usage in the regional plan. It should also be noted that the adjoining strip of land to the north was also designated for commercial use.
Appellants claim discrimination because the owners of two other pieces of property within two blocks or so of the tract in question were denied rezoning. Without considering the legal aspect of the contention it will suffice to say that appellants’ evidence showed the reason for the distinction made. Mr. Robert J. Hrabak, director of the City Planning Commission, was called as a witness by appellants. The record discloses the following:
“Mr. Robert J. Hrabak, called, sworn and testified as a witness on behalf of Appellants, gave the further testimony not set out by Appellants, as follows:
“Mr. Hrabak testified that one of the reasons that the ‘Hoins’ property [tract in question] was approved for rezoning was because it had access to a major thoroughfare.
“That in regards to the ‘Inkmans and Phillips’ Tracts, the heavy traffic was one of the reasons for denial and that it was not a problem in the ‘Hoins’ Tract because it was on a major thoroughfare.”
The reason given would appear to be ample to avoid any claim of discrimination.
The appellants challenge the ordinance on the basis that it constitutes “spot zoning.” Appellee responds with the suggestion that the question was not presented to the trial court. Regardless of the procedural or legal posture of this issue, the rezoning was not “spot zoning.” Appellants cite 51 A. L. R. 2d 267 as authority for its definition of the term. We quote:
“An amendatory ordinance which selects one lot, owned by one person, and creates for it a particular zoning classification different from that of the surrounding property, constitutes ‘spot zoning.’ Parker v Rash (1951) 314 Ky 609, 236 SW2d 687.
“ ‘Spot zoning,’ as usually defined, signifies a carving out of one or more properties located in a given use district and reclassifying them in a different use district. Chayt v Maryland Jockey Club (1941) 179 Md 390, 18 A2d 856.”
The property adjoining the rezoned property on the north was zoned as commercial. The rezoning of the strip in controversy tended to give two undeveloped strips a similar rather than different classification. Apartment buildings were permitted under the general business classification.
Appellants claim error because the trial court rejected their exhibit consisting of an architect’s plan for developing the property in question. The plan was not presented to the Planning Commission at the hearing on the present application for rezoning and was not considered in adopting the ordinance. We cannot see how it would have been of any assistance to the court in determining whether the city officials acted arbitrarily or capriciously in rezoning the property.
After a careful examination of the record we are forced to con- elude, as did the Rial court, that the appellee was entitled to judgment dismissing the action for the reason that the appellants’ evidence faded to show the rezoning ordinance was arbitrary, unreasonable or void.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
O’Connor, J.:
The sole question for determination in this appeal is whether a nonresident claimant whose employment was in Kansas can maintain an action for judicial review against the employment security board of review under the provisions of K. S. A. [now K. S. A. 1968 Supp.] 44-709 (h), which provides:
“. . . Within ten days after the decision of the board has been mailed, any party aggrieved thereby may secure judicial review thereof by commencing an action against the board for the review of its decision in the district court of the county in which such party resides, or has his principal place of business, in which action any other party to the proceeding before the board shall be made a defendant. . . .” (Emphasis added.)
The stipulated facts are that the appellant, Eulalee Whitehead, lived at all times in Kansas City, Missouri, and was an employee of Armour and Company in Kansas City, Kansas, until May 20, 1965, when the plant was closed. Throughout the period of appellant’s employment, Armour and Company was subject to the provisions of the employment security law (K. S. A. 44-701 et seq.) and made regular contributions to the employment security fund established under the act. Subsequent to the closing of the plant, appellant filed her claim for benefits in accordance with the regulations prescribed by the labor commissioner. Her claim was rejected by the employment security examiner, whose determination was affirmed by a referee. After timely appeal, the board of review adopted the findings and conclusions of the referee and affirmed his decision.
On October 17, 1966, appellant filed a petition against the board of review in Wyandotte county district court, challenging the board’s decision, particularly the finding that she was unavailable for work. The petition was dismissed by the court on the basis it lacked jurisdiction of the subject matter and person because appellant was a resident of the state of Missouri at the time her petition was filed.
The identical question was before this court in Johnston v. Kansas Employment Security Board of Review, 189 Kan. 327, 369 P. 2d 394, but was left unanswered because the board sought to challenge the district court’s jurisdiction by a motion to dismiss instead of by answer. There, we held the statute contemplated the only pleadings authorized to be filed in the district court were a petition by the claimant and an answer by the board, and, therefore, the court did not err in overruling the board’s motion.
Subparagraphs (h) and (i) of 44-709 in its earlier form (L. 1937, ch. 255, § 9) were construed in Shumaker v. Kansas State Labor Dept., 154 Kan. 418, 118 P. 2d 550. Although the decision is not germane to the precise question here, the fundamental rules of statutory construction applied by the court bear repeating:
“When a statute is susceptible of more than one construction it must be given that construction which, when considered in its entirety, gives expression to its intent and purpose, even though such construction is not within the strict literal interpretation of the statute.
“Words, phrases or clauses, in some part of a statute may be omitted, inserted or transferred if by so doing the legislative intent may be ascertained thereby.” (Syl. ¶[|1, 2.)
Similar expression of rules of statutory construction were stated recently in Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 501, 438 P. 2d 732, quoting from State v. Sumner, 169 Kan. 516, 219 P. 2d 438:
“ ‘When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ ”
Once legislative intent is ascertained, it should be given effect, even though the literal meaning of the words used in the enactment is not followed. (Bayless v. List & Clark Construction Co., 201 Kan. 572, 441 P. 2d 841; Duggan v. Navart, 198 Kan. 637, 426 P. 2d 153.)
The Kansas employment security law enacted in 1937 is not an isolated act on the part of a single state. While the purpose of the enactment was to provide for the public good and general welfare of the citizens of this state (K. S. A. 44-702), the legislation was designed to join in the effort by Congress to ease the menace of economic insecurity resulting from unemployment throughout the country. The federal and state enactments represent a cooperative legislative effort by the respective governments to carry out a common public purpose which neither government could fully achieve without the other’s cooperation. The federal acts of 1933 ( 29 U. S. C. A. § 49, et seq.) and of 1935 (42 U. S. C. A. § 501, et seq.), providing for grants of money to states in the administration of their unemployment compensation laws, form the background of practically all the state statutes on the subject, and were enacted to reimburse the federal treasury for unemployment relief expenditures which were primarily the burden of the state, and to encourage the states to assume their proper burden with reference to the unemployment problem by inducing them to enact unemployment compensation statutes. State statutes such as K. S. A. [now K. S. A. 1968 Supp.] 44-716, which provides for the creation of a state employment security fund, were enacted in order to take advantage of the benefits provided by the federal acts. (81 C. J. S., Social Security and Public Welfare § 80.)
Our research has failed to disclose any unemployment compen sation enactment by a sister state which prevents judicial review by an aggrieved nonresident claimant who otherwise comes within the purview of the act.
We find nothing in the Kansas employment security law to indicate that a nonresident employee of an employer within the state is to be treated any differently than a resident employee. In fact, an employee’s status as a nonresident appears to bear no relevancy tO' his or her eligibility for benefits under the act. (K. S. A. 44-703 [i] [1]), 44-705, 44-706.) As previously indicated, appellant performed services entirely within this state for Armour and Company, during which time she was, and still is, a nonresident. During her employment the company made regular contributions to the employment security fund pursuant to the act.
The effect of the district court’s literal interpretation of the judicial review statute is that an aggrieved claimant who is a nonresident of the state is precluded from obtaining judicial review of the board’s decision, whereas a resident would be accorded that right. Such an interpretation would bring into question the constitutionality of the statute itself. A statute should, if reasonably possible, be construed to prevent discrimination and unequal protection of the laws, and thus uphold its constitutionality. (Addington v. State, 199 Kan. 554, 431 P. 2d 532; Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 327 P. 2d 836.) Futhermore, a statute should never be given a construction that leads to uncertainty, injustice or confusion, if possible to construe it otherwise. (Willmeth v. Harris, 195 Kan. 322, 403 P. 2d 973.)
In respect to the filing and determination of a claim for benefits under the act, K. S. A. [now K. S. A. 1968 Supp.] 44-709 (b) provides that any party aggrieved by the decision of the board of review may appeal to the court in accordance with paragraph (h) of § 44-709, which is the very subparagraph under consideration. We deem inconceivable the thought that the legislature would grant a claimant the privileges and benefits of the act, and further provide the right of appeal to the courts if he was aggrieved by the decision of the board, and then fail to provide a forum for judicial review in the case of a nonresident claimant.
Appeals generally are favored in the law, and appeal statutes should be liberally construed in furtherance of justice whenever that may reasonably be done. (In re Estate of Goddard, 176 Kan. 495, 271 P. 2d 759; In re Estate of Charles, 158 Kan. 460, 148 P. 2d 765.)
When an examiner makes a determination of a claim for benefits, K. S. A. [now K. S. A. 1968 Supp.] 44-709 (b) specifically requires that the claimant and “his most recent employing. uruitT (emphasis added) be notified of the examiner’s decision. For all practical purposes, “employing unit,” which is defined in K. S. A. 44-703 (g), would be the employer by whom the claimant was last employed.
The judicial review statute (44-709 [h]) requires the action be filed in the district court of the county where the aggrieved party “resides, or has his principal place of business.” The “aggrieved party” could be either the claimant or his most recent employer. In the case of an aggrieved nonresident claimant, we are of the opinion the legislature intended that the phrase “his principal place of business” refer to his most recent place of employment within the state, which in this case was Wyandotte county. The word “business” in its ordinary and common usage may be said to include “employment.” In Mansfield v. Hyde, 112 Cal. App. 2d 133, 245 P. 2d 577, it was stated that “business” in its broad sense embraces everything about which one can be employed, and is synonymous with calling, occupation or trade engaged in for the purpose of obtaining livelihood or gain or profit. (Also, see, Ballentine’s Law Dictionary [2d Ed., 1948], pp. 179 and 431; Black’s Law Dictionary [Rev. 4th Ed., 1968], pp. 248, 249, and 618.) Thus construed, the statute affords an aggrieved nonresident claimant a forum for judicial review of the board’s decision. Such construction, we believe, effectively carries out the intention of the legislature that a claimant-employee who is otherwise within the purview of the act is not to be denied the right of judicial review because he or she is a nonresident of the state.
The judgment of the district court is reversed and the case remanded with directions to proceed with the action commenced by appellant. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin. The pleadings consisted of a petition by the plaintiff, an answer by the defendant, a reply by the plaintiff, and a rejoinder or reply to the reply by the defendant. At the trial in the district court, the parties admitted that all the facts alleged in all the pleadings, except those alleged in the reply to the reply, were true. The defendant then introduced evidence to prove the facts alleged in his reply, and the plaintiff introduced evidence to disprove the same. The court, upon the admissions and upon the evidence thus introduced, found generally in favor of the defendant and against the plaintiff, and rendered judgment accordingly. The plaintiff then moved the court for a new trial, upon the ground “that said judgment was contrary to law and contrary to the evidence.”' The court overruled the motion, and the plaintiff now brings the case to this court.
The plaintiff raises two questions in this court. He claims: 1st, “The answer does not state facts sufficient to' constitute a defense;” 2d, “The judgment is not supported by sufficient evidence.”
I. The answer contained two defenses: 1. A general denial. 2. That the property in controversy was the property of Adaline Jackson; that the defendant found it in her possession, and, as constable, levied upon it, and held it by virtue of an execution issued by a justice of the peace against the property of said Adaline Jackson, on a judgment rendered by such justice in favor of Kendrick Harmon and Lewis C. Shales and against said Adaline Jackson. Either of these defenses was unquestionably sufficient.
II. Does the evidence support the “judgment” and the finding of the court below? We think it does, and certainly we cannot say that it does not. It must be remembered, that the parties voluntarily submitted their case to the court below upon the truth or falsity of the allegations set forth in the reply of the defendant to the reply of the plaintiff. That this was a novel proceeding can make no difference now. Both parties consented to it, both parties proposed it, and neither party at any time objected to it. Although under the code, or other statutes, there can be no such thing in replevin as a rejoinder, or as a reply to a reply, yet, as both parties in the court below treated such reply as legal and valid, and submitted their case to the court below upon the truth or falsity of its allegations, we shall also treat' such reply as legal and valid. We shall treat the allegations contained in said reply the same as though they were contained in the defendant’s answer, and in response to proper allegations in the plaintiff’s petition. It appears from the petition, answer, and plaintiff’s reply, that the property in controversy once belonged to said Adaline Jackson; that she mortgaged it to the plaintiff Brettun Crapster, to secure the payment of a certain note for $300; that she still retained the possession of the property; and that, while the property was so in her possession, the defendant as constable levied upon it and took it into his possession as aforesaid. The defendant’s reply, after denying all the allegations of the plaintiff’s reply, alleged as follows:
“Defendant avers that the said chattel mortgage, in said reply of plaintiff mentioned, is fraudulent and void, and was executed by the said Adaline Jackson for the sole purpose of defrauding, hindering and delaying her creditors, and to prevent her said creditors Lewis C. Shales and Kendrick Harmon, in defendant’s answer mentioned, from collecting the amount of their said-claim against her by law; that she was not indebted to the plaintiff in the sum of $300, nor in any other sum; that the said sum of $300, in plaintiff’s reply mentioned, was the debt of one Andrew Jackson to the plaintiff, and arose from $200 loaned by the plaintiff to the said Andrew Jackson, for the purpose of entering in the U. S. land office the said Andrew Jackson’s farm, the N.E. J of section 9, township 30, south, of range 4, east, in said county, and $100 for expense of entering, and-interest on the $200 for one year in advance; that the. said loan was made under the agreement between the said Andrew Jackson and the plaintiff that said plaintiff should take a mortgage on the said land for his only security for said loan; that the said Andrew Jackson, with his wife Adaline Jackson, did execute to the said plaintiff such mortgage on said land, to secure the payment of the said $300 according to said agreement; that said land is worth $600, and is ample security for the said $300; that said property described in said chattel mortgage was the sole property of the said Adaline Jackson; and that the plaintiff well knew all the above-recited facts at the time the said chattel mortgage was executed.”
We think the evidence proved the allegations of the defendant’s reply. The testimony of Andrew Jackson himself would tend to prove the following facts: Jackson borrowed $230, not to exceed $240, of the plaintiff, and gave his note therefor payable in one year for $300, the excess over $230 or $240 being for interest. With this money Jackson entered his land at the United States land office, and then gave a mortgage on the land to secure the payment of said note. The land was worth at the time about $700. Nothing was said at the time the money was borrowed about giving any other security. Afterward, Jackson and his wife, said Ada-line Jackson, ascertained that said Shales and Harmon were likely to take the personal property of the Jacksons to pay said claim of Shales and Harmon, and the Jacksons desired to do something to prevent it. They consulted with the agent of the plaintiff concerning the matter, and such agent, whom we shall designate as A., advised them to mortgage it to the plaintiff. A portion of Jackson’s testimony is as follows: “My wife was present, and A. and I then talked about the Shales-and Harmon matter, and about how we could keep them from taking the personal property to pay their judgment. A. advised that we mortgage it to the plaintiff. I asked him if Shales and Harmon could then take it, and he said, ‘No.’ He said that as the land was an upland claim, plaintiff ought to have more security. We concluded to mortgage it, and A. drew up the chattel mortgage I have been speaking of, and we signed it.” This chattel mortgage was given as additional security for the payment of said $300 promissory note. It included the property in controversy; and included in the aggregate, according to Jackson’s testimony, about $960 worth of personal property. This, we think, makes out a pretty strong case of fraud against the Jacksons and against the plaintiff, and in favor of said Shales and Harmon, who were then the creditors .of Mrs. Jackson. And as the court below found generally in favor of the defendant and against the plaintiff, it makes no difference now that said agent A. and said Jackson “both stated under oath that the chattel mortgage was executed in good faith and with no fraudulent intent.” The court believed the fads as stated in detail by Jackson. Nor can it make any difference that the judgment on the claim of Shales and Harmon had not yet been rendered when said, chattel mortgage was executed. The claim existed, and it is about as great a fraud to attempt to defeat a just claim not in judgment, as it is to defeat one evidenced by a judgment. As strongly supporting the doctrine of this case, we would refer to Phillips v. Reitz, 16 Kas. 396; and Strohm v. Hayes, 70 Ill. 41.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action of ejectment, in the district court of Leavenworth county, to recover the possession of two lots in Leavenworth city. The defendant set up a tax deed, and the validity of this deed is the question for decision. -There was a separate deed for each lot, but being similar, we shall treat the case as though there were but one lot and one deed. The deed -was made in 1864, and was for the taxes of 1859. From April, 1859, to February, 1862, James B. Gardenhire, the ancestor of plaintiff, was the owner of the lots. At the last date he died, leaving a widow and four children. Two of the children died in childhood, and unmarried. Of the two surviving, one was born in 1845, and the other, the plaintiff, in 1855. Plaintiff claims full title by descent and by deed from his mother and sister. By an act of the legislature of the state of Kansas which went into effect March 6, 1873, the plaintiff was invested with the rights of majority. April 17, 1873, he commenced this action. No redemption or attempt thereto was ever made by the plaintiff or those under whom he claims, and no tender of the taxes or any portion thereof to defendant, and no evidence offered bearing upon the tax title, other than the deed and sale certificate. Plaintiff claims in the first place that the tax deed was void because at the time of its execution the lots were the property of the widow and minors, and therefore the time for redemption had not expired • in the second place, that there was no evidence of any assignment of the sale certificate, the deed purporting on its face to have been made to an assignee, the county having been the original purchaser ; in the third place, that the deed was not in the form prescribed by the law in force at the time of the sale, and therefore invalid; and finally, that the tax law of 1858, under which the assessment was made and the tax levied, was repealed in 1860, before the sale, and without any saving clause, and that therefore the deed was void for want of any authority to sell.
As the last question is the most fundamental, going to the validity of the sale, we shall consider that the first. Was the sale a nullity?
The assessment and levy were under the law of 1858. This was repealed by chapter 114 of .the laws of 1860, which went into effect February 27, 1860. This chapter 114 was a general act for the assessment and collection of taxes, and purported to cover the entire ground. And while many of its. provisions were identical with those in the law of 1858, it was evidently intended as, and was a substitute for that law. And it in terms repealed all acts and parts of acts inconsistent with its provisions. (§ 73.) Now did this repeal operate to wipe out all tax liens then existing, or prevent the enforcement of those liens, and the collection of those taxes, by proceedings in accordance with the provisions of the law then enacted? We think not. The repeal did not affect “any right accrued, any duty imposed, any penalty incurred, nor any proceeding commenced under and by virtue of the statute repealed.” (Comp. Laws, p.837, §1.) At the time of the repeal, the tax had become a fixed charge upon the lot. Every step had been taken necessary to make it an established lien, as much so as a voluntary mortgage to the state. Now the repeal in no manner operated to release that lien. Grant that it took away the right to enforce that lien by a sale under the provisions of the repealed statute, and still it would not follow that it destroyed the lien or remitted the tax. The lot remained, still charged with that tax debt to the state. The repeal of a law prescribing the manner of foreclosing the mortgage, does not release the mortgage. And the law of 1860, while repealing the law of 1858, itself provided for enforcing the collection of taxes by sale of the land. Section 35, laws of 1860, p. 211, reads: “All lands and town lots on which the taxes shall not have been paid before the first day of March, in each year, shall be subject to sale in the manner hereinafter provided.” This statute, it will be remembered, went into effect before the 1st of March, 1860. This lot stood charged with a valid tax. This tax was not paid before the 1st of March, 1860. The lofcj therefore, under the plain language of the section, became subject to sale. And while the law of 1860 was probably prospective in its operation, it was not so limited that no one of its sections could apply to tax proceedings other than those commenced and carried to completion under its provisions; and we think the section is broad enough to include, and properly does include, a case like the one at bar, and authorized the sale which was in fact made. Any other construction would impute to the legislature the intention to abandon all efforts to enforce the collection of all prior unpaid taxes, and would be illy in accord with, that recognized policy of this state in reference to the continuance of proceedings which has been so often referred to in this court. (Gilleland v. Schuyler, 9 Kas. 569; State v. Boyle, 10 Kas. 113.) That the legislature did not intend to abandon the collection of those taxes, is made clearer by chapter 127 of t'he laws of 1860, which went into effect three days before the general tax law of that year, and which extended temporarily the time for the collection of taxes in Leavenworth county.
Returning, we find the third objection to be, that the deed is not such in form or effect as contemplated by the law in force at the date of the sale. The law of 1860 simply provided, that on presentation of the sale certificate the county clerk should execute the deed “in the name of his county, as county clerk, under his hand and seal.” (Sec. 56.) While in 1862 this section was amended by adding, “Said deed shall be substantially in the following form,” and giving a form in which the county is not expressly stated to be the grantor. The. language of the granting clause is, “Now, therefore,,I, C. D., county clerk of the county aforesaid, . . . have granted, bargained and sold,” &e.
We do not think any change was made in the effect of the deed. Each operated to “vest in the grantee an absolute estate in fee simple.” Each was prima facie evidence of the regularity of all prior proceedings. So reads the statute. And as to form, no form was given in 1860, and the amend ment of 1862 was simply the adding of a form. But suppose the form was radically changed, has anybody a vested right in the form of a tax deed? May not the legislature prescribe a new form each year ? and if anybody can complain, is it any one other than the purphaser? If he, the grantee, is content to take a deed in the new form, who is wronged, and who can complain ? By a failure of the lot-owner to pay the taxes, the state has the right to sell the property to some one who will pay. It makes a contract of sale with such purchaser. Now, any change in the mere form of the evidence of purchase which does not change the effect of the instrument as evidence, and adds no new burden to, and takes no substantial right from, the original owner, and is accepted by such purchaser, is certainly within the power of the legislature. In Robinson v. Howe, 13 Wis. 347, it is said, that “the mere form of the deed was a matter of no great consequence and might be prescribed by the legislature, provided they gave him such a deed as his contract entitled him to.”
The second objection is, that there was no proof of the assignment of the sale certificate. The deed is itself prima facie evidence of everything, from the valuation of the land up to the execution of the deed, and that includes assignments of the sale certificate. (McCauslin v. McGuire, 14 Kas. 234; Hobson v. Dutton, 9 Kas. 477.)
But as to one lot, plaintiff offered in evidence the sale certificate, which showed a formal assignment from the county to one Arthur Storms, and on the back the name of Arthur Storms indorsed in blank. No formal assignment from Storms appeared anywhere on the paper, yet the tax deed ran to Jacob Grebe. Counsel contends that such blank indorsement was not an assignment, and that therefore the deed was executed to the wrong party. It will be noticed that neither the county nor Storms is questioning this deed or claiming any interest in the property, and we think the matter is one which does not concern the plaintiff. The county sold to Storms, and contracted at a certain time to give a deed to him or his assignee on surrender of the sale certificate. Grebe, claiming to be the owner, presents the certificate with Storms’s name indorsed, and the deed is made-Now if Storms had not actually sold the certificate to Grebe, he and he alone is wronged, and he must come into court for relief. In Woodman v. Clapp, 21 Wis. 354, the court says:
“The deed recites that the defendant was the assignee of Comstock, who was the assignee of the county. The county is concluded by this recital. If not a ratification of the previously unauthorized act of the clerk, it certainly inures to the benefit of the defendant by way of estoppel; and so long as the county is concluded, it is not an objection of which the plaintiff can ávail himself in this action.”
That case goes beyond this, for here the only question is the fact of the assignment; there, in addition, the validity thereof.
We come now to the first and only remaining objection, and that is, that the deed was executed before the time for redemption had expired. The ordinary period for redemption had expired, but by section 51 of the tax law of 1860 minors were entitled to redeem at any time during minority and within one year thereafter, and widows were allowed five years after the sale. So that as to all parties having title to the land, the time for redemption had not in fact expired at the date of the deed. Was the deed therefore prematurely executed, and if so, void?
Section 56 provides that, “ If any land sold for taxes shall not be redeemed within the time specified by law,” the county clerk shall, on presentation of the sale certificate, execute a deed, which shall vest in the grantee an absolute estate in fee-simple, subject, however, to all unpaid taxes and charges, which area lien thereon. Does that expression, “specified by law,” refer to the general rule of time prescribed for such cases, of which officers and all others have knowledge, or to the time which in any particular and exceptional case may lawfully intervene between the sale and the final termination of the right of redemption? The statutes must be so construed as to harmonize their various provisions, and so far as possible, to give reasonable effect to all. Now by section 43, the treasurer was required to give the purchaser a certificate of sale, which should state the time when the purchaser would be entitled to a deed. And by section 55, the treasurer was required to publish notice of the expiration of the time for redemption, “specifying the same,”' and stating the actual amount of tax and interest due at such time. Can it be supposed that these various provisions refer to other than the fixed and general rule of time? Is the county treasurer to investigate the question of ownership in each case, and determine the exact time when the right of redemption shall finally cease? No provision is made for such investigation, and, considering the constant changes of title through conveyances and death, any effort in that direction would be simply futile. Furthermore, the title to any lot might be in several persons, as in the case at bar, and the right of redemption as to each person expire at a different time. Must there be a separate certificate, a separate notice, and a separate deed for each interest? Or must the deed for the entire lot be withheld until the expiration of the last right of redemption? It will be noticed that all tax proceedings, at least so far as real estate is concerned, are proceedings in rem. The property, and not the owner, is charged with the tax; and the proceedings must be such that the record, and that alone, shows their regularity. It is true, the statute says that the deed shall convey “ an absolute estate in fee simple,” while if there be any right of redemption, such estate is subject to be defeated by a subsequent redemption. Hence, it is said the estate would not be absolute, but defeasible. But this it would seem would be more properly an exceptional limitation on the effect of any particular tax deed, rather than a restriction on the right to such deed. The deed actually executed, and which is in accord with the form given in the amendment of 1862, provides for such possible right of redemption; and hence, as counsel contends under his third objection, the effect of the deed under the law of 1862 is different from that of one under the law of 1860. But we think under either law the right of redemption would exist, and a deed recognizing such right would have been proper under the law of 1860. The case of Wright v. Wing, et al., 18 Wis. 45, discusses this question, and the conclusion is in accord with that reached by us; though that was a clearer case, because the estate which the statute said should pass was expressly declared to be subject to redemption as provided in the tax law. But still it is in point upon the question as- to when the deed might lawfully be executed. It seems to us, therefore, upon the whole case, that the judgment of the district court was right, and must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by .
Valentine, J.:
The petition in error in this case is founded upon what purports to be a case-made for the supreme court, and not upon a certified transcript of the proceedings of the court below. ' Froth this “case-made,” it appears that the judgment sought to be reversed was rendered on December 20, 1876, by Hon. Owen A. Bassett, judge of the district court in and for Douglas county. On the same day, the defendants below, plaintiffs in error, against whom the judgment was rendered, filed a motion for a new trial. These were the last proceedings had in the case before Judge Bassett, while he was judge. In January, 1877, his term of office as judge of the district court expired, and Hon. N. T. Stephens became his successor. On February 19,1877, said motion for a new .trial was heard by Judge Stephens, and was by him overruled. Judge Stephens then gave to the defendants ten days within which to make and serve a case for the supreme court. The case was properly made, and was duly served on the adverse party on February 26, 1877, and on March 21, 1877, it was settled and signed, over the objections of the adverse party, by Judge Bassett. It was never settled or signed by Judge Stephens.
The first question necessary to be considered in this case is, whether said “case-made” was properly settled or not; for if it was not properly settled, then it will not be necessary to consider any of the other questions discussed by counsel.
"We think that Judge Bassett had, no legal power or authority, at the time he settled and signed said case, to settle or sign the same. The time for him to do so had long before that time passed. The judgment was rendered December 20,1876. The time for making and serving a case to enable the supreme court to review the rulings of the district court down to the rendering of said judgment, and prior to and independent of any ruling upon the motion for a new trial, was limited by law to only three days after the rendition of the judgment. (Code, §543, as amended, Laws of 1871, p. 274.) Unless the judge of the district court for good cause shown extended the time. (Code, §549, as amended, Laws of 1870, p. 168.) The time was not extended within the three days. It was never extended by Judge Bassett, unless it should be construed that by settling and signing said case on March 21', 1877, when he was not a judge, he extended the time. And it was never extended by Judge Stephens, for his order extending the time to make a case was simply an order extending the time to make a case to review his own order overruling said motion for, a new trial. Besides, it has already been decided by this court (the writer of this opinion however dissenting) that no judge has power to extend the time for making a case after the time fixed by law, and by any order of the court or judge, has once elapsed. (The City of Great Bend v. Brinkman, not reported.) The statute under which it is supposed that a judge whose term of office has expired has power still to settle and sign a “case-made” has no application to the present case. Said statute reads as follows: “And in all cases heretofore or hereafter tried when the term of office of the trial judge shall have expired or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired.” (Code, § 549, as amended, Laws of 1870, p. 168.) The judge’s term of office in the present case did not “expire before the time fixed for making or settling and signing a case.” The time fixed by law for making a case was within three days after the judgment was rendered, or on December 20th to 23d, 1876. No case was made within that time, and no other time was ever fixed for settling or signing any such case. But the judge’s term of office did not expire for several days after December 23, 1876. It would have been entirely proper for Judge Stephens, after he overruled said motion for a new trial, and after he fixed the time within which to make and serve the case for the supreme court to review that ruling, to have settled and signed such case himself. Such a case would have enabled this court to review Judge Stephens’s decision upon the motion for a new trial. And if Judge Stephens had himself settled and signed such á case, we could then by means of such case review every question involved in the motion for a new trial, every question raised by it. But Judge Stephens did not settle or sign the ease. We suppose it will hardly be claimed that JudgeBassett could settle and sign a case so as to give to this court the power to review Judge Stephens’s decisions. We suppose-it will hardly be claimed that Judge Bassett could settle and sign a case so as to give to this court the power to know legally what Judge Stephens’s decisions were. After Judge Bassett’s term of office had expired, he had no power to make a record of any of the proceedings of the district court, except, possibly a record of some of the proceedings that were had while he was the judge of the court. Therefore, under any circumstances, we must consider that that portion of the present case which shows that Judge Stephens overruled said’ motion for a new trial and extended the time for making a. ease, is a nullity. ■ And if we consider that portion of the-case as a nullity, and the rest of the case as valid, we must then affirm the judgment of the court below; for if we should consider the motion for a new trial as still pending- and undisposed of in the court below, »we could hardly say that any material and substantial error was committed in this-case. Errors for which a new trial may be granted are generally not available in the supreme court until after a new trial has been refused by the district court. (Nesbit v. Hines, 17 Kas. 316.) But in the present case we must consider the-whole of the case-made as a nullity, for the reasons already' given, and therefore the present case must be dismissed.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin to recover some cattle. The answer was a general denial. The jury returned a verdict for defendant, finding the right of posses sion to have been in him at the commencement of the action, and the value of such possession $15.66.
The following statement, incorporated in a bill of exceptions, presents the questions:
“On and during the trial of this action, it was admitted in evidence by the parties that, after the filing of the petition, affidavit and bond in replevin, of which copies are hereto attached, marked ‘A’ and ‘B,’ respectively, and made a part hereof, and issuance and delivery of the summons and order of delivery herein to the officer, Philip Devore, who served the same; but before said officer made service thereof, said Devore, at the request and by the authority of the plaintiff, Smith, and as his agent for that purpose, demanded of said defendant Woodleaf the cattle herein replevied, mentioned in the petition herein; whereupon said Woodleaf (then being without actual notice that said petition, bond and affidavit had been filed and said writ issued to said Devore) refused to give up the said cattle, claiming to hold them under the statutes of Kansas, in such cases made and provided, for damages done by them to his corn, and that he had seized them while doing such damages; whereupon then and there said officer Devore, as such agent, and at the request and by the authority of the plaintiff, and with his (plaintiff’s) money, tendered to said Woodleaf the sum of $25 (twenty-five dollars), lawful money of the United States, as the full amount of said damages, and in payment thereof, which said Wood-leaf then and there refused to accept or to deliver up to said Devore, as such agent, said cattle (though said Devore was authorized then and there to receive .the same, as said Wood-leaf was then informed by said Devore); thereupon the said Devore, still claiming to act as the 'agent of the plaintiff, but in fact having no authority so to do, tendered to the defendant for the same purpose the sum of thirty dollars, lawful money, which said Woodleaf then and there also refused to accept — the said Smith having in fact authorized said Devore to tender no more than the said sum of $25, but said Wood-leaf did not know of that fact; thereupon then and there said Devore served said summons on said Woodleaf and seized, said cattle under the order of delivery aforesaid, as shown by the returns thereon; thereupon then and there said Woodleaf offered to accept and receive the said $30 so tendered to him in full of said damages, and release his said claim on said cattle, but said Devore then and there refused to pay the said $30, but as such officer drove away said cattle from the farm and possession of said Woodleaf. And after the testimony adduced on said trial had closed and this cause had been argued by counsel, the Hon. N. T. Stephens, presiding judge of said court, charged the jury as to the said tender in the following words, viz.: 'Gentlemen of the jury, the tender question does not arise in this case; you will pay-no attention to it;J to which part of said charge the plaintiff excepted, and no other or further charge or instruction was given to the jury, or asked for by either party, on the subject of such tender.”
After the overruling of the motion for a new trial, plaintiff’ presented a motion to tax all costs which accrued in the cause subsequently to the tender against Woodleaf; but .the court denied it, and Smith again excepted.
The errors alleged are —
1. The court erred in instructing the jury that the tender question did not arise in the cause, and to pay no attention to it.
2. In refusing to tax the costs which accrued after the tender against the defendant.
It appears from the statement that the defendant did not claim to be the owner of the cattle, but only claimed the right of possession, the right given by §33, p.-494, of the General Statutes, to detain trespassing cattle until the payment of damages. Upon this it is broadly claimed, that until after an assessment of these damages by fence viewers, no tender avails to discharge this right of possession; and secondly, that even if this be not correct, the tender must be made before the commencement of the replevin action. We shall not stop to examine the first proposition, passing it with the single remark that if under our statutes a tender of sufficient amount does not operate to discharge the right of possession, even at the very moment it attaches, it ought to, and the statutes ought to be so amended as to secure this right to the owner of the cattle. But the second proposition we think is correct, and that, to avail the plaintiff; a tender oth erwise sufficient to discharge the defendant’s right of possession must be made before the commencement of the action. It has been repeatedly decided by this court, that the gist of the action of replevin is the wrongful detention, and that this relates to. the time of the commencement of the action. (Town of Leroy v. McConnell, 8 Kas. 273; Brown v. Holmes, 13 Kas. 482.) This last case is exactly in point. True, it was a case of demand, and not of tender, but that which is true of the former is also true of the latter. If a demand after the commencement of a suit is powerless, for the purposes of such suit, to change a rightful into a wrongful possession, equally so is a tender after suit. The plaintiff cannot create his right of action after suit brought. The question is, -whether when he commenced he had a cause of action, and if he did not, he must fail. He-determines the time of commencing, and it would be strange if after commencing he could create a right of action which did not exist when he commenced, and enforce it against the defendant. To avoid the effect of this, counsel for plaintiff claims that the suit was not commenced until after the service of the summons and the order of delivery, and cites the case of Badger v. Phinney, 15 Mass. 359. We have already decided the other way, in Brown v. Holmes, supra. There, after the filing of the petition and the issue of process, an agent went with the officer who had the process and made a demand before any service was attempted, and we held the demand too late. . It was after the commencement of the suit. No tender is claimed in” this case, except as made after the filing of the petition and the issue of process, and by the officer who had the process in his pocket and whose duty it was to serve it. It does not -appear from anything in the statement that if defendant had accepted the tender, the process would have been returned not served, or the suit abated. In the absence of instructions from the plaintiff to the contrary (and none such are shown), it would have been the officer’s duty to serve the process, and the suit would continue. The defendant ■would have been compelled to employ counsel to defend his rights, or a judgment might have been rendered against him for costs exceeding the amount tendered and received.
Counsel further contends that for some purposes the law ignores fractions of a day, and that acts done the same day are to be considered as done at such moment thereof as will most accord with the truth and justice of the case. We fail1’ to see what difference in principle it will make, whether the •service and tender are made the same day that the petition is filed, or on. some succeeding day. Neither party’s rights would be changed or conduct affected. And the truth of the •case certainly requires that that which is shown to have been •done after the other, shall be held to have been so done. Nor do we see anything in the conduct of the plaintiff to •entitle him to any special sympathy, or which would justify any straining of facts or law to relieve him. The defendant’s conduct may have been no better. Indeed, the case is •one in which the court can enforce the strict rules of the law with the least possible regret. But it is with the plaintiff’s •conduct we have now to do. And it appears that after his ■cattle had trespassed upon his neighbor’s fields and destroyed •his corn, without ever offering to pay for the damage they had done, he invokes the aid of the powers and processes of the law, files an untruthful affidavit, to remain as a permanent record of the county, charging wrong upon such neighbor, and sends out an officer with the process in his possession to seize and deliver the cattle. Up to that moment his neighbor had done right, and he had done wrong. Does it lie in his mouth to cry technicality at the rules which visit upon him the consequences of such wrong? “They that seek the «word shall perish by the sword.” If the defendant was entitled to the possession of the cattle at the commencement of the action, he was entitled to a judgment for their return or the value of such possession; and in replevin actions the statutes give no discretion to the court as to the matter of costs, but make them follow the judgment. (Gen. Stat., pp. 746, 747, §§ 589 and 590.)
The judgment will be affirmed.
All the Justices concurring. | [
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Per Curiam:
It is ordered that the judgment of the district court in this case be modified in accordance with the views expressed by this court in the case of Clough v. McDonald, 18 Kas. 114; and the case will be remanded, with instructions to render judgment accordingly. The costs of this court will be divided between the parties. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Sophia Zeitz (plaintiff below) against the city of Wyandotte (defendant below) upon several written obligations of said city, issued by the proper officers thereof on the 11th day of November, and on the 20th day of May, 1875, respectively, and due January 1st and February 1st, 1876, respectively, to E. Miller, or bearer, and J. F. Meyer, or bearer, and duly transferred before due to the said Sophia Zeitz for value, which obligations were designated “special sidewalk bonds,” for the payment of which “the faith, credit, revenue and public property of said city” were therein specially pledged. Said ■obligations or bonds also contain the following clause: “This bond is issued for the payment of sidewalks built on the north side of Minnesota avenue, between Fifth and Sixth ■streets.” The bonds were due long before the commencement of this action, and had been duly presented for payment.
The petition contains.all the usual and necessary allegations under the statute. (Code, §§118, 123; Budd v. Kramer, 14 Kas. 101.) To this petition said defendant interposed a demurrer, on the ground that the petition did not state facts sufficient to constitute a cause of action, which demurrer was, at the April term, 1878, of said court, overruled, and the defendant allowed to answer.
Said defendant thereupon filed its answer to said petition, admitting that said defendant was a municipal corporation, duly organized and doing business as such, under and by virtue of the laws of the state of Kansas; admitting.that said bonds were executed, and denying all other allegations in such petition, and setting up that said' bonds were issued in payment for certain special improvements, to wit, the building of sidewalks in said city in accordance with a contract of said city therefor; that the cost of such improvements is chargeable against the abutting property; that a tax against ■such property had been duly levied and certified to the proper officer for collection, for the purpose of paying for said improvements; that said taxes have never been collected, and ■claiming that said city is not liable for the payment of said bonds until such time as the taxes so lévied shall be collected .and paid into the city treasury; and further, that the acts of the officers of said city in issuing said bonds were ultra vires, in that there was no authority for said city to contract for the payment of said improvements or to issue said bonds. Or, to ■state the new matter contained in said answer in the language ■of the defendant’s brief, (the brief of the city now plaintiff in error,) it is as follows:
“First, That after said sidewalks, and hence local improvements, were made, and said bonds issued in payment therefor, its council, September 5, 1875, levied a special tax'upon the lots abutting upon said local improvement, and duly published the same in a city paper.
“Second, That on the 14th of September, 1875, the city •clerk of Wyandotte city certified said levy of taxes up to the ■county clerk of Wyandotte county.
“Third, That on the 15th day of September, 1875, the said county clerk placed said levy upon the tax-rolls of said ■county for collection as required by law.
“Fourth, Defendant averred that it had performed all acts required by law for it to perform, in order to collect the tax from said lots for payment of said bonds.
“Fifth, Denies that it has ever refused to pay any creditor when money was in the treasury for such payment, but has .always paid out all money to the party entitled to it, on demand.
“Sixth, That while the mayor and clerk by the terms of .said bonds undertook to bind the entire property of the city for their payment, yet they had no legal or constitutional power so to do.
■ “Seventh, That plaintiff was not entitled to a general judgment against the city, but must look to the lots abutting on the sidewalk made and constructed.
“Fhghth, That the special tax levied upon said local lots for said improvement had not been collected at the commencement of this action and the filing of the answer.”
No reply was filed to said answer, but on the 17th day of May, 1878, plaintiff filed a motion for judgment over the answer, on the ground that the facts set up on said answer did not raise any issue in said action or constitute in law any defense thereto; which motion was, by the consideration of said court, at the July term, 1878, sustained, and judgment rendered for said plaintiff for the amount due on said bonds. No motion for a new trial or to vacate said judgment was made or presented to the court below.
The plaintiff in error complains that the court erred in overruling the demurrer to the petition of said plaintiff, and in sustaining its motion for judgment over its said answer.
The substantial question presented by the record in this case is: Had the defendant corporation (plaintiff in error) the power to make the contract declared upon in said action? For if it possessed this power, it must pay its obligations at maturity, or a judgment may be rightfully recovered against it thereon.
The consideration of this question involves the construction of the statutes as to the authority of cities of the second class, in relation to contracting for the building of sidewalks and paying for the same. It is claimed by plaintiff in error that it did not possess this power, and,that the acts of its officers in issuing these bonds were ultra vires, because the statute provides that, “for making and repairing sidewalks, the assessments shall be made on all lots and pieces of ground abutting on the improvement according to the front foot thereof.” (Laws of 1873, p. 128, ch. 65, §3; amended §32.) And it appearing upon the face of these bonds that they were issued for the payment of sidewalks built in said city, said city could only contract to levy the tax therefor against the lots abutting thereon, and had no authority to contract for the payment of the same, either at the completion of the same, or at any definite time in the future; but when such levy was made, its authority ceased, and the contractor must get his pay as best he can.
Section 4 of the act relating to cities of the second class, in force at the time of the making o.f this contract, (Laws of 1872, ch. 100, pp. 192, 193,) provides that “each city governed by the provisions of this act shall be a body corporate and politic, and shall have power, . . . Fourth, To make all contracts and do all other acts in relation to the property and affairs of the city necessary to the exercise of its corporate or administrative powers.”
Section 32 of the same act, as amended, (Laws of 1873, p. 128, ch. 65,) provides that “the cities coming under the provisions of this act in their corporate capacities are authorized and empowered to enact ordinances for the following purposes, in addition to the other powers granted by law: . . . Second, To open and improve streets, avenues and alleys, make sidewalks . . . within the city.” That said city had the power to contract for the building of sidewalks, under these provisions, is not questioned. (Dill. Mun. Corp., §§371, 372; Miller v. The City of Milwaukee, 14 Wis. 642; The City of Lawrence v. Killam, 11 Kas. 499; Ketchum v. City of Buffalo, 14 N. Y. 356.)
Is the city restricted in its authority to pay for these improvements to a mere agreement to levy a tax therefor against the abutting property, which shall be paid over to the contractor when collected ? or can it make a valid contract to pay for the same in cash at the completion of such improvements? or give its obligation payable at such time in the future as in the ordinary process of tax collection it could hope to realize funds therefor, as in this case ?
The charter nowhere gives the contractor any authority to collect these taxes, or any lien upon the abutting property, for his pay, but simply provides, for the purpose of meeting the ultimate liability therefor and raising a fund to reimburse said city for the amount paid for such improvements, that “the assessments shall be made on all lots and pieces of ground abutting on the improvement,” instead of upon the general property within the city. If it had been the intention of the legislature that the contractor could only get his' pay for work and labor performed and materials furnished in constructing these sidewalks, from the tax levied against the abutting property, it would certainly have made some provision whereby such contractor would be protected in his rights in relation thereto, either by the issuing of certificates thereon to such contractor with suitable provisions for the collection of the same by him or his assigns, or that the same should be collected for the use and benefit of such contractor, giving him a lien thereon for the amount so due him, or some other adequate means of enforcing payment and securing his claims therefor — none of which is provided for in said act. It is simply provided that the assessments shall be made upon the abutting property certified to the county clerk of the proper county, to be placed on the tax-roll for collection, subject to the same penalties and collected in like manner as other taxes are by law- collectible. (Laws of 1872, ch. 100, p. 205, §43.)
In this respect, the law governing cities of the second class differs from that governing cities of the first class, and the rights and liabilities of said cities in relation thereto must correspondingly differ; and it cannot be presumed that it was intended that the same mode of procedure should be adopted under both statutes. (For the laws relating to cities of the first class, see laws of 1874, pages 64 to 67, §§17 to 25.)
The corporation being authorized in general terms to build sidewalks without specification of manner or means, it necessarily follows that it can contract with some person to furnish the material and perform the labor necessary therefor, to be paid for upon the completion of the job; and must also of necessity have power to agree upon the mode, terms and time of payment, and to give a suitable acknowledgment of the indebtedness, by bond, note or other contract. (Ketchum v. The City of Buffalo, 14 N. Y. 356; The City of Lawrence v. Killam, 11 Kas. 512, 513; Curtis, et al., v. Leavitt, 15 N. Y. 9; Smith v. Law, 21 N. Y. 299; Moss v. Oakley, 2 Hill, 265; Kelley v. Mayor of Brooklyn, 4 Hill, 263; Dillon’s Mun. Corp., §407, note 2; Railroad Co. v. The City of Evansville, 15 Ind. 395.) But the statute expressly gives the authority for the issuing of these bonds. Section 35, laws of 1872, page 202, ch. 100, provides for the issuing of bonds to contractors and others performing work or furnishing materials for making improvements within the city. The building of sidewalks is an improvement of a general nature, for the benefit of the general public, and the use and convenience of the whole city. That the improvements mentioned in said section include those chargeable upon local or abutting property, is evident by the proviso, “ When any of said bonds are issued for the purpose of paying for improvements chargeable to any particular or local property, the taxes to pay the same shall be levied only on such property.”
Can it make any difference as to the liability of the city to pay its obligations, whether the revenue therefor is collected from a general, tax .or from local assessments? Would it'be contended that the city could plead as a defense to an action upon a ten-year bond, issued under the provisions of said § 35, that it had levied the tax for the purpose of paying said bond, but that such tax had not been collected, and therefore it was not liable on such obligation ? It seems to us that the argument should apply as well in the one case as in the other. While the law differs as to the manner of raising a revenue to meet its obligations, it does not change the character of the contracts, and there can be no reason why the one must be paid at maturity without regard to whether the tax levied therefor has been collected or not, and the other must wait until such tax has been collected before an action can be maintained thereon. In the case of Yarnold v. The City of Lawrence, 15 Kas. 126, cited by counsel for plaintiff in error, this question was not before the court; neither is it there decided that a judgment could not be obtained against the city upon the contract therein mentioned.
We think that the city of Wyandotte had the power to contract for the making of the improvements mentioned; that authority to contract for the making of such improvements necessarily implies the authority to pay for the same, and in the absence of a statute specifying or restricting the manner of such payment, the authority to give a suitable acknowl edgment of the debt, by bond, note, or other contract; that the provisions of the statute requiring the assessment to be made against the abutting property, relates to the ultimate liability therefor for the purpose of raising a fund to reimburse said city for the amount paid for such improvements, and is a question entirely between the city and the lot-owner, and with which the contractor or his assigns have nothing to do, and in which he has no right or interest; that the city is primarily liable for the making of such improvements (Leavworth v. Mills, 6 Kas. 298), and having executed its contract to pay at a specified time, is bound to pay at such time, without regard to the question of the collection of the taxes assessed for the purpose of meeting such demand.
Said city having authority to issue said bonds in payment for such improvements, and having executed its contract to pay at a specified time, is bound to pay at such time, without regard to the question of the collection of the taxes assessed for the purpose of meeting such demand.
The court below did not err in overruling the defendant’s demurrer to the plaintiff’s petition, nor in sustaining the plaintiff’s demurrer to the defendant’s answer, nor in rendering judgment in favor of the plaintiff and against the defendant for. the amount of said bonds; therefore the judgment of the court below will be affirmed.
All the Justices'concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The plaintiff in error brought her action against the said John Borgman, a justice of the peace, and the other defendants, the sureties on his official bond, for alleged illegal proceedings of a special constable appointed by said justice. The defendants in error demurred to the petition, which demurrer was sustained, and plaintiff in error excepted, and brings the ruling here for review.
It is claimed by counsel that as the bond is conditioned that the obligors only “agree to pay on demand to each and every person who may be entitled thereto all such sums of money as the said justice may become liable to pay, on account of any moneys which may come into his hands by virtue of his office,” that no action can be maintained thereon for the wrongful acts of a special constable, and especially that the sureties are not liable beyond the letter thereof.
Section 19, ch.110, Gen. Stat., 1085, prescribes the form and condition of a justice’s bond, and the bond in question conforms to that statute. Section 174, ch. 81, Gen. Stat., 812, provides:
“Such justice shall stand as surety, and shall be in that character liable, he and his sureties, for any neglect of duty or any illegal proceedings on the part of such constable so by him appointed.”
These acts in pari materia, and relating to the same subject, are to be taken together. To properly construe them, we must ascertain and carry into effect the intention of the legislature. It was certainly the purpose of the law-makers, th^t having provided for the appointment of special constables by justices of the peace, the justice making such appointment and his sureties should be liable for his neglect of duty and illegal proceedings. Had the provisions of §174 been inserted in the undertaking at its execution, it would be readily conceded that the justice and his sureties would be liable. As both of these acts were in force at its execution, and as the obligors were bound to know the law, they signed the undertaking with'the knowledge that they were bound not only by the written words of the instrument, but also by the terms of. §174, to which the bond was extended. It is the same as if the words of § 174 were written therein before the signing. In other words, the law interpolated in the bond the terms of said §174; and when the defendants in error executed the bond, they thereby bound themselves to answer for the illegal acts of any special constable appointed by the justices, as completely as if the letter of the bond had contained an express condition to that effect.
Counsel further contends that' §174 is void, on the ground that the subject of appointing special constables, and making the justice and his sureties responsible for their acts, are not properly connected with the subject expressed in the title of ch. 81. We think otherwise. The title of the act is very comprehensive, and the subject of all its sections is included in the title, “An act regulating the jurisdiction and procedure before justices of the peace in civil cases.”
The judgment of the district court therefore must be reversed, and the cause remanded with instructions to overrule the demurrer of defendants in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution. The defendant was tried, convicted and sentenced as for murder in the first degree; but he claims that it was done erroneously, as the indictment upon which he was tried did not charge murder in the first degree, but at most, only murder in the second degree. We are inclined to think that the defendant is correct. The indictment is probably sufficient as an indictment for murder in the second degree, but we hardly think it is sufficient as an indictment for murder in the first degree. It does not charge that the killing was done by means of poison, or by lying in wait, or in the perpetration or attempt to perpetrate any felony; nor does it charge that the hilling was done deliberately or premeditatedly. It was intended to be an indictment charging a deliberate and premeditated killing, but it failed in charging the deliberation and premeditation. It charges that the defendant, William Brown, and two others (John Taylor and Thomas Craig), killed two persons (William Bledsoe and Jacob Bledsoe) with pistols and revolvers; but it does not charge that they did the killing with any .deliberate or premeditated intention of killing the deceased. The deliberation and premeditation charged in the indictment do not go to the killing, but merely go to the acts which finally and eventually resulted in producing death. Stripping the indictment of everything except that which might be supposed to charge deliberation and premeditation, and changing it so as to make it an indictment against the defendant alone for killing one of the Bledsoes with one pistol, and it would read substantially-as follows: The defendant deliberately and premeditatedly, with a pistol charged with gunpowder and six leaden balls, whjc}i pistol he in his right hand held, of deliberate and premeditated malice, did shoot against the body of Bledsoe, and thereby gave to Bledsoe one mortal wound, of which mortal wound Bledsoe died; and the defendant him the said Bledsoe,“in the manner and by the means aforesaid, unlawfully, feloniously, willfully, wickedly, purposely, maliciously, and with malice aforethought, did kill and murder.” The first part of the indictment charges substantially that the defendant deliberately and premeditatedly committed an assault and battery upon Bledsoe by shooting him with a pistol loaded with gunpowder and balls; but it does not charge that the defendant at the time had any deliberate or premeditated, intention, nor indeed any intention, of killing Bledsoe. It ■substantially charges that he deliberated .upon and premeditated the shooting, the assault and battery, but it does not ■charge that he deliberated upon or premeditated the killing. From anything appearing in this part of the indictment, the ■shooting and the assault and battery may have been committed with the intention merely of wounding Bledsoe, either •severely or slightly. There was nothing in the' mode of killing that would authorize even the slightest inference that the defendant ever entertained a deliberate or premeditated •design, or 'any design, to produce death. The indictment does not show whether the pistol was large or small, whether the balls were large or small, whether there was much or little_gunpowder in the pistol, nor on what part of the person of Bledsoe the wound was inflicted, or intended to be-inflicted. ■Of course, the failure to state these things, does not render the indictment insufficient; but we mention them merely for the' purpose of showing that this part of the indictment does not' ■even inferentially state that the killing was done deliberately or intentionally. The latter part of the indictment we have -quoted, verbatim. While it alleges- that the defendant “ unlawfully, feloniously, willfully, ■ wickedly, purposely, maliciously, and with malice aforethought, did kill and murder” Bledsoe, yet it does not allege that he did it either deliberately or premeditatedly. If this part of the indictment had charged a deliberate and premeditated killing, then, under ■the authority of Smith v. The State, 1 Kas. 365, the indictment would have been sufficient-as an indictment for murder in the first degree. But as neither this nor any other portion •of the .indictment charged that the killing was done with any •deliberate or premeditated design to kill, or by means of poi.son, or by lying in wait, or in the perpetration or attempt to perpetrate some felony, the indictment cannot be.considered as a'good indictment for murder, in the first degree. (State v. McCormick, 27 Iowa, 402; State v. Watkins, 27 Iowa, 415; Bower v. The State, 5 Mo. 364; State v. Jones, 20 Mo. 58; State v. Reaky, 1 Mo. Appeal, 3; Fouts v. The State, 8 Ohio St. 98; Kain v. The State, 8 Ohio St. 306; Hagan v. The State, 10 Ohio St. 459; Loeffner v. The State, 10 Ohio St. 599.)
The indictment in this case charged that the killing was done by John Taylor, William Brown, the present defendant, and Thomas Craig, with pistols and revolvers, “'which said pistols and revolvers the said John Taylor, William Brown and Thomas Craig then and there in their right hands held.” The defendant now,, and for the first time, claims that the indictment is insufficient, because, as he claims, 1 J three men could not hold pistols and revolvers in their right hands and inflict therewith a mortal wound on each or either of two different persons, and cites, as authority therefor, The State v. Gray, 21 Mo. 492, and The State v. Steeley, 65 Mo. 218. The authorities he cites are not in point. There is certainly nothing impossible in three men holding three or more pistols or revolvers in their right hands and therewith inflicting wounds, and the authorities quoted do not say that there is. It would not even be impossible, however improbable it might be, for three men to hold one and the same pistol or revolver in their several right hands, and therewith to inflict a mortal wound, and therefore no court could properly hold that an indictment charging such a thing would necessarily be insufficient. (Coates v. The People, 72 Ill. 303.) Besides, our statutes provide that “any person 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 a principal;” (Gen. Stat. 839,. §115;) and as construing this kind of statute, see case last cited.
The defendant claims that the court also erred in excluding certain evidence offered by the defendant. The killing was done in this case on April 1, 1865, in the southern part of Greenwood county, on what was then the Osage Indian reservation. Several 'hundred Indians were at that time camped in the vicinity of where the killing was done. The theory of the defendant is, that the killing was done by the Indians from revenge, because, as they believed, the Bledsoes and others acting with them had killed several Indians, and had stolen a large number of ponies and other property belonging to the Indians. The defendant,was present at the time the killing was done, and immediately afterward stated that it was done by Indians. There was also evidence in the case showing directly and positively that Indians were also present at the time the killing was'done, and that the killing was done by them. The state introduced a witness by the name of Cottingham, who testified among other things as follows:
“He (Cottingham) was at Brazil’s trading-post some eight days prior to the time the Bledsoes were killed; that the Bledsoes were then under arrest, charged with having killed some Indians and taken from them some horses and other property; that there were several hundred Indians camped at said Brazil’s post at the time; that witness saw defendant and others talking to the Indians at that time and offering them, money and property if they’would kill the Bledsoes; that .'the night afterward one Matthews under arrest with the Bledsoes, charged with being gtiilty of the same offense with which the Bledsoes were charged, turned state’s evidence, and told where the Indians (the Bledsoes were charged with killing) had been thrown into the river; and that after Matthews turned state’s evidence, some one told the Bledsoes if they had anything to say they had but a few minutes to say it in; that the Bledsoes were afraid the Indians were going to kill them; that they wanted some one to pray for them; that the father of- witness who was a preacher did pray for them, and that immediately after the excitement all quelled down, and that the Indians manifested no further disposition to injure the Bledsoes; that they said if the whites wanted such men killed, they might kill them themselves, that they, the Indians-, would not kill innocent mert.”
This evidence was evidently introduced for the purpose of showing — 1. That the defendant had a desire that the Bledsoes should be killed; and 2. That the Indians had no such desire; that the Indians believed that the Bledsoes were “innocent men;” that they had not killed Indians nor stolen Indian ponies or Indian property. The defendant offered to rebut this testimony by introducing other testimony, showing that the Indians could not have believed that the Bledsoes were “innocent men;” but the court below ruled it out. Said other testimony was as follows: The defendant introduced a witness by the name of Cantrell, who testified among other things that he was present at the time that Matthews made his said confession, and that he had the Bledsoes in his charge. The defendant then offered to prove by this witness that “at the time Matthews confessed and stated in the presence of the Indians and the Bledsoes, that he (Matthews) and the Bledsoes had murdered the two Indians for whose murder they were under arrest, and had thrown their bodies into the river at a point designated by said 'witness, and that one of said Bledsoes then said to Matthews, ‘You did not tell us not to kill them,’ and that Matthews replied, ‘Yes I did, by God — you know I did,’.and that thereupon said Bledsoe sank back on a seat and covered his face with his hands and remained silent.” But the court refused to allow this evidence to be introduced.
The defendant also introduced himself as a witness, and offered to testify that he was present at the time that Matthews made his said confession; “that there were a great many Indians present, and that the Bledsoes then confessed they had recently been guilty of murdering Indians.” But the court refused to permit him to so testify.
We think the court below erred in excluding this evidence. It was certainly proper rebutting evidence. If it was competent for the state to show that the Indians had no motive or desire to kill the Bledsoes, it was ^ 1 certainly competent for the defendant to show by rebutting evidence that they had such a motive. If it was proper for the state to show that the Indians believed that the Bledsoes were “innocent men,” and had done the Indians no harm, it was certainly proper for the defendant to show that the Indians could not have believed so, and that they must have believed that the Bledsoes killed some of their comrades and stole some of their property; and proof of the acts and confessions of the Bledsoes in the presence of the Indians at the time that Matthews confessed, was competent evidence.
The state also introduced a witness by the name of Pinney, •who testified, among other things, as follows:
“A short time before the killing was done, Eedmond, who lived about four miles down the river, rode up to the defendant Brown’s house, called Brown out, who was a physician, and told him that he wanted him to come down to his house to see a sick child; that Brown told him he would go; that he came in, put on his hat and coat, appearing a little excited; his wife told him he was leaving his medicine case; he said he would not need it; that thereat Brown and Eedmond rode off together; that about an hour after, he heard twelve 'shots in the direction of where the Bledsoes were found dead next day; that about three-quarters of an hour or ,an hour thereafter, defendant returned and said as they were' moving the Bledsoes from Baxter’s they were attacked by Indians, and the Bledsoes were killed.”
The other evidence shows that the defendant, after leaving his own house with Eedmond, went to Baxter’s, near by where the Bledsoes, who were still under arrest, were kept and guarded, and after some converga(;¡on the defendant and the guards with the Bledsoes removed from Baxter’s with the intention, as the defendant claims, of going to a place of greater safety, but with the intention on the part of the defendant, as the prosecution claims, of murdering the Bledsoes; and soon after they left Baxter’s the Bledsoes were killed by Indians, as the defendant claims, but by the defendant and his assistants, as the prosecution claims.
The foregoing testimony of Pinney was evidently introduced for the purpose of making it appear to the jury that ■ the defendant went to Baxter’s under the false pretext that he was going to Bedmond’s to "attend a sick child. For the purpose of rebutting this unfavorable view of the testimony, tlie defendant introduced himself as a witness, and offered to _ testify with reference to the whole of the conversation between himself and Eedmond had at the time when Eedmond “called him out” of his house as aforesaid, but the prosecu tion objected, and the court below sustained the objection. The defendant offered to testify that Redmond, in this same conversation, told him “that a large body of Indians were in the vicinity for the purpose of killing the Bledsoes,” and that it was this information “which caused him to go at once to Baxter’s.” But the court excluded the testimony. The defendant “testified that at the time his wife told him he was leaving his medicine he knew he was not going to see a sick child, but was going to Baxter’s,” and going for the purpose, as he offered to testify, of persuading the Bledsoes to leave Baxter’s, and go to a place of greater safety. We think the court below erred in excluding the defendant’s evidence. It was simply proof of a part of the same conversation, a part of which the prosecution had already introduced evidence of, and it tended to rebut the unfavorable inference which the prosecution undoubtedly desired the jury to draw from that portion of the conversation which the prosecution had already given to the jury.
Because of the errors above mentioned, the judgment of the district court will be reversed, and a new trial awarded. The appellant will be returned from the penitentiary, and delivered over to the jailer of Greenwood county, to abide the order of the district court of that county.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on an account, in-which both parties set forth in their pleadings their claims in-separate items. The plaintiffs in error, who were defendants below, claim that the court below, on the evidence in the case, should have rendered judgment in their favor, instead of in favor of the defendant in error, plaintiff below, as the court below did. Whether the court below erred in so rendering said judgment, is the only question presented to this court by the plaintiffs in error. We cannot say, from the proceedings brought to this court, that the court below erred. Of the items of the plaintiff below, we think the court might have found that $14,826.69 were admitted and proved — a portion of them being admitted in open court by the defendants, and the rest of them being proved by the plaintiff’s evidence. Of the items of the defendants below, we think that $14,111 were admitted by the plaintiff — part in his petition, part in open court, and part in his own testimony.. This leaves due to the plaintiff, $715.69. The various particular items mentioned in the brief of plaintiffs in error, defendants below, we would think were all explained to the satisfaction of the court. Passing over the plaintiff’s items to those of the defendants, we would say that we think the-item of the $109.80 check was satisfactorily explained and accounted for by the plaintiff. The items of the $374 note-paid to Davis is included in the above aggregate of $14,111. The only other items of the defendants mentioned in their brief, are those for profits on hogs. The first is for $881.64. This is founded upon a supposed admission of the plaintiff,, made long before this suit was commenced. ■ But the plaintiff says he never made any such admission. He says, in his-testimony on the trial, that he stated to the defendants that the profits were about $1,500, not including the costs and expenses, which were to be deducted from the profits. Whether the costs and expenses were more or less than the profits, is-not shown. But the defendants were probably allowed by the court at least $450.87 for their half of these profits. The-plaintiff and defendants were each to share one-half of the profits and one-half of the losses on the purchase and sale-of hogs. The next item is $385.25 for hog profits. This,, we should think, was allowed by the court below, the next and last item being $500 for hog profits. Now, whether the plaintiff made any profit on the hogs for which this item is » charged, is immaterial, for the defendants had no interest in these hogs. The transaction was not a partnership transaction. The hogs belonged wholly to the plaintiff, and whatever profit he received, belonged to him.
The plaintiff admitted that the defendants should receive $599.82 for hog profits, and this amount is included in the above aggregate amount of $14,111. But as the court below rendered judgment for the plaintiff for only $478.39, instead of for $715.69, the difference between the two above-named general aggregate sums, the court below probably allowed the defendants $837.12 for hog profits.
It must be admitted that the evidence in proof of some of the facts in this case is not very satisfactory, and that the court' below might have made a different finding thereon from the one it did make; but still we cannot say that the court below erred in its finding. The finding was general in favor of the plaintiff and against the defendants for $478.39. Such a finding is a finding of every special thing necessary to be found to sustain the general finding. (Knaggs v. Mastín, 9 Kas. 532; Bixley v. Bailey, 11 Kas. 359.)
And it has already been settled by this court that such a finding is conclusive in this court upon all doubtful and disputed questions of fact. (Ulrich v. Ulrich, 8 Kas. 402; St. L. K. C. & N. Rly. Co. v. Piper, 13 Kas. 505; Hobson v. Ogden, 16 Kas. 388; Gibbs v. Gibbs, 18 Kas. 419; Crane v. Chouteau, 20 Kas. 288.)
Perhaps it would be better if the rule were allowed to extend only as far as the following cases apply it: Brumbaugh v. Schmidt, 9 Kas. 117; Hyde v. Bledsoe, 9 Kas. 399; Clark v. Hall, 10 Kas. 81. But undoubtedly the decisions of this court extend it further.
We have given this case more consideration than we need to have done. It comes here on a “case-made” for the supreme court. This “case-made” does not show or state that all the evidence introduced on the trial is contained in the “case-made.” Neither does the judge’s certificate state or show any such thing. The only things that tend to show or state any such thing, are the following. A notice is found appended to the “case-made,” which reads as follows:
“To David E. Standeford, plaintiff, and Harris & Harris, your attorneys of record: The foregoing case-made is, on the 1st day of October, A. D. 1877, served upon you, and you are required within three days from this day to suggest amendments thereto, in writing, to the defendants or. to their attorneys, and in case of your failure to make and suggest amendments, in writing, within three days from this first-day of October, A. D. 1877, the foregoing ease-made will be taken as true and containing a full record of the case, and ■all the evidence introduced, and all the exceptions taken on the trial, and certified accordingly.
October 1st, 1877. Adams, English & Ruggles,
Attorneys for Defendants.”
Whether this notice was ever served upon the plaintiffs or -upon any other person, is not shown.
The clerk of the court below appends a certificate to the “case-made,” showing as follows: “I, C. A. Wanness, clerk, do hereby certify the above and foregoing to be a true, full and correct copy of the record, including all pleadings, evidence, motion for a new trial, and journal entries in the cause,” etc.
Now the foregoing notice and certificate are not sufficient to show that the “case-made” contains all the evidence. The “case-made” should itself show it, or at least it should be shown by something which has received the approval of the judge as'to its correctness. Said notice shows.merely what defendants’ attorneys say upon the subject, and said certificate shows merely what the clerk says upon the subject.
Taking the “case-made” alone, this case is very much like the case of Greenwood v. Bean, 20 Kas. 240. Within that authority and the authority of the case of Dewey v. Linscott, 20 Kas. 684, we might say that we have all the evidence-in-chief of both the plaintiff and the defendants. But we cannot say that we have all or any of the rebutting evidence. There is nothing in the “case-made” or elswhere that shows that the evidence was closed when the defendants rested their case; and- from the nature of the evidence then already introduced, and from the presence at the trial of the plaintiff himself as a witness, it would seem very strange that the evidence should have then been closed. Erom what is shown in the “ case-made,” it would seem probable that the evidence was not closed when the defendants rested their case, and if not, then we are not in the possession of all the evidence introduced on the trial, and if we are not in the possession of all the evidence introduced on the trial, we cannot tell with any degree of certainty what was proved or what was disproved.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was tried in the district court of Morris county, at the April term, 1877, on appeal from a justice of the peace of that county. The plaintiff in error complained that the defendant in error, a corporation duly incorporated under the laws of the state, was indebted to him in the sum of $200, for that much money had and received by the defendant from the plaintiff, which was loaned by plaintiff to defendant, at defendant’s special instance and request. After both parties had offered their evidence and rested, the court instructed the jury to find for the defendant, which was duly excepted to. The jury having found for the defendant, in accordance with the instruction of the court, and judgment having been rendered thereon, the plaintiff has brought the case here for review. At the time that the corporation received the money, the following receipt or contract was executed to plaintiff by a duly-authorized agent of the defendant, under its instructions and on its behalf:
“Council Grove, Kansas, May 17, 1876,
“Josiah Hinton has this day paid into the grange agency the sum of $200, to be used as conditional stock, with the agreement by the directors of. the association that while it is used it shall have the' same advantages as other stock, but that said Hinton can draw out said money at any time by giving thirty days’ notice to the agent, in writing.
“ J. P. Stover, President. James Coffin, Agent.”
It was proved that more than thirty days before the action was commenced, the plaintiff notified the agent of the defendant in writing that he wanted his money, and demanded it back. Under these circumstances the ruling of the district court was erroneous, and the judgment must be reversed.
The court seems to have construed the receipt accepted by Hinton to mean that the money therein named was capital stock, the same as other stock, and that the lender had no right to withdraw his money, notwithstanding the agreement that the corporation was to pay it back on notice being given, as required by the terms of the receipt. Such a construction was unwarranted. The receipt plainly states that the plaintiff could draw out his money at any time by giving thirty days’ notice to the agent, in writing; and when he complied with the terms of such receipt, he was. clearly entitled to his money.. On the refusal to permit him to withdraw the same, his cause of action accrued, and under the proof it is evident that he should have recovered. The jury was misdirected, to the prejudice, of the plaintiff’s rights. Whether the plaintiff is liable to creditors of the corporation on the ground that he is the holder of conditional stock, and whether creditors could have restrained the payment of this money to the plaintiff until their claims, if there were any, had been first satisfied, we need not now determine, as these questions are not in the case. This action is between the plaintiff and the corporation alone. It does not appear that the corporation is insolvent, nor that any valid defense was interposed to the claim sued on.
The judgment will be reversed, and new trial granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Action for damages for an assault and' battery. Verdict and judgment were for the plaintiff, and the defendant alleges error. The errors alleged are in these extracts from the instructions:
“In assessing the plaintiff’s damages the jury may, in their discretion, take into consideration the feeling of insecurity the plaintiff may have by reason of the defendant’s assault upon him;” and “you may also, in your discretion, take into consideration the probable and reasonable expenses of conducting this suit.”
It is stated that other instructions were given, but they are not preserved in the record; neither are we advised of .their nature or extent. We do not know in what relation these instructions stood to the entire charge, nor whether the court in them is referring to actual or exemplary damages. We cannot say whether this comprises all that was said to the jury in reference to the measure of damages, or was largely modified and qualified by minute, extended and full instructions. We may not therefore reverse, unless under all aspects of the pleadings and testimony such instructions, either isolated or in connection with others, would be erroneous and prejudicial. (Morgan v. Chapple, 10 Kas. 226.) It may be conceded, that if actual damages alone were recoverable, the instructions went too far; but under the petition, punitive or exemplary damages were recoverable, for the allegation is, that the defendant did “ unlawfully, forcibly and maliciously assault, beat and bruise.” (Wiley v. Keokuk, 6 Kas. 94.) And the testimony of the plaintiff tended, to show such a malicious assault as would justify a jury in awarding such damages.
If referring to punitive damages, or “smart-money,” as it is sometimes called, is the language of the court in these extracts such as compels a reversal? We think not. Actual damages mean compensation. That which makes good the loss compensates, and is therefore the measure of damages. The cost of collecting is not ordinarily considered a part of the compensation, dr recoverable as actual damages. (Good v. Mylin, 8 Penn. St. 51; Stewart v. Sonneborn, U. S. Sup. Ct., 7 Law and Eq. Rep. 289.) But punitive damages mean more than compensation: they imply punishment, and are to deter the wrong-doer, as well as compensate the injured. While they imply punishment, and their assessment is largely a matter of discretion with the jury, yet a court is not bound to turn the matter over to them arbitrarily, and without any suggestions as to matters which they ought to consider in their assessment of such damages. It may and indeed ought to call their attention to any matters which will tend to prevent any mere arbitrary and thoughtless award, and to make the assessment fair and reasonable, considering all the circumstances of the case. Among such matters are those suggested in the instructions complained of. They are not stated to the jury as matters which must be made the basis of compensation, but are suggested as proper for their consideration; and as influencing the amount of smart-money, they are eminently proper. Indeed, much might be said in favor of including within actual damages and mere compensation, not only the taxable costs, but also all the expenses of the litigation. Counsel say that there was no testimony as to the expenses, and therefore the court improperly referred to the matter. If these expenses were the basis of compensation, then testimony as to them would be necessary, and the plaintiff could recover only what he should prove he has incurred. But it is otherwise in reference to smart-money. The jury are aware that a suit is prosecuted; they know that time, labor and money are consumed in such a suit, and from what they see, have some idea of the amount of such time, labor and money. And though they may not know exactly such amount, it is right for them to consider the matters of such time, labor and money in fixing the amount of smart-money. (Roberts v. Mason, 10 Ohio St. 282.) Just so in reference to the plaintiff’s supposed feelings of insecurity. From the relative size, appearance and conduct of the parties, as well as the circumstances of the assault, the jury will judge whether the plaintiff fears a repetition of the violence, or has reason to fear it; and if they find that such fear exists, and with reason, they may assess the smart-money so that the assailant, feeling the strong hand of the law, shall be slow to disturb the peace of his neighbor. That is one of the purposes of smart-money — to preserve the peace, by' making it expensive to break it; and the'court may properly, call the jury’s attention to the matter. See as authorities upon these instructions, Fisher v. Hamilton, 49 Ind. 349; Wright v. Compton, 53 Ind. 342; Welch v. Durand, 36 Conn. 182; Roberts v. Mason, 10 Ohio St. 282.
In the case from 36 Conn., supra, counsel fees were separately found, and held proper in the assessment of damages; and in that from 10 Ohio St. they were adjudged proper elements of compensatory damages. Both these were cases of assault and battery. Sedgwick, in his treatise on the Measure of Damages, page 98, says that “ it may on principle be considered clear, that in cases proper for the infliction of exemplary or vindictive • damages, the jury, in estimating those damages, have a right to take into their consideration the probable expense of the litigation.”
This being the only question presented by plaintiff in error, the judgment will be afiSrmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought before a justice of the peace by the Patrons’ Mill Company, to recover from Tobias Ginrich $195, claimed to be due from him on a subscription by him to the capital stock of said Patrons’ Mill Company. The case was afterward taken on appeal from the justice of the peace to the district court. In the district court it was tried by the court without a jury, and special findings of fact and conclusions of law were there made; and on these findings and conclusions judgment was rendered in favor of the plaintiff and against the defendant. The defendant now brings the case to this court for review. He claims that said Patrons’ Mill Company is not a corporation, and therefore that it has no capacity to sue and no right to collect anything from him on said subscription to its capital stock. It was originally organized as a corporation “to build and maintain a flouring mill,” and he claims there is no authority in the statutes or elsewhere for organizing or creating any such corporation. We think there is, however: we think that section 5 of the act entitled “An act concerning private corporations,” as amended in 1873, authorizes such a corporation to be created. (See Gen. Stat., 191, §5; laws of 1870, page 125, §1; laws of 1871, page 169, §1; laws of 1872, page 241, §2, subdivision 36; laws of 1873, page 137, §1, subdivision 36.) Said section 5 as amended authorizes the creation of private corporations for “the conversion and disposal of agricultural products by means of mills, elevators, markets and stores, or otherwise.” (Laws of 1873, pages 137, 139, subdivision 36.)
The defendant also seems to claim that not only the corporation, but everything done by it, is also void, for the reason that no by-laws had been formally adopted by the board of directors of such corporation prior to the first election of officers, prescribing the time and. place for such election. (See Gen. Stat. 195, §§ 17, 19.) The corporation was created on October.9, 1874, and the names of the directors for the first year were determined and designated by the charter. (See Gen. Stat. 192, § 6, sub. 5.) Soon afterward, the stockholders, who were “patrons of husbandry” or “grangers,” met as “grangers” as well as stockholders, and adopted by-laws for the corporation. These by-laws were afterward, but not for more than a year afterward, adopted formally by the directors as directors. The directors, however, as well as the stockholders, recognized these by-laws as "valid as soon as they were adopted by the stockholders, and always treated them as the by-laws of the corporation, and undoubtedly, as stockholders, helped to pass them. The first election for directors was held under these. by-laws on October 2, 1875. This election was certainly valid, if said by-laws were valid; and it was probably valid whether said by-laws were valid or not, for every officer and stockholder of the corporation seems to have acquiesced in the election, and treated it as valid. The new directors accepted the positions to which they were elected, and served. But who they were, is not shown. Probably, however, the defendant Ginrich was one of them, for on October 30, 1875, he was elected their president. (See Gen. Stat. 195, §18.) At that time he also paid into the treasury $5 on his said subscription. On June 15th, 1876, the new board of directors formally adopted said by-laws, with some amendments. Afterward they made assessments on said subscriptions up to the full amount thereof. The defendant refused to pay the assessments on his subscription, and therefore to collect the same, this suit was commenced. We do not think that the said proceedings of the board of directors (either of the old board or the new) were invalid, because of the said informalities in adopting by-laws.
The defendant also claims that he is relieved from paying the amount of his subscription, because the corporation is expending its money in building a dam, by means of which to obtain power to run its mill. We see no force in this claim.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The learned judge in the court below mistook the law in reference to this case, in rendering judgment on his findings of fact against, the railroad company. The stock law of 1874, exempting railroad companies from its conditions when their roads are inclosed with a good and lawful fence, is to be construed in connection with the fence law in force. In other words, railroad companies are not required to build different fences from other parties. The fence' spoken of 'in the stock law is no different or more expensive a structure than that mentioned in the general law defining a legal and sufficient fence. (Gen. Stat., ch.40, §2.) In townships where hogs are permitted to run at large, the bottom rail, board or plank of which the fence is composed shall not be more than six inches from the ground; in •other townships it shall not be more than two feet. In the law there is no prohibition against building fences of rails •or lumber, and when constructed of this material, as required by the law, they are lawful fences. There is no finding to show that in Wakarusa township swine were allowed to run at large. The general law of the state is, that they shall not run at large. Assuming the general law of the state was in force, then the railroad company, in any event, was only bound to build a fence through the inclosure of Yates, with the bottom rail, board or plank not more than two feet from the ground. (Laws 1873, ch. 88, §1.) Such a fence would not have prevented the hogs killed from being on the road; indeed, the fence thus constructed, and being within all the requirements of the law a good and lawful fence, would have in no respect been of any benefit to the proprietor of the land, so far as keeping his hogs from the track. Then, if such a fence was useless and unnecessary so far as this case is concerned, can it be logically said that the company ought to have built its fence? or that from its failure to construct a fence which would not keep the animals killed from going upon the road, it was liable under the law of 1874? We ■answer, no. The building of a dozen, or any other number of fences of the character required by law in Wakarusa township, would have afforded no protection to the defendant in •error, and he has no serious complaint of their absence. As a lawful fence could not have prevented the injury, and would not have protected the railroad track from the swine, so no obligation existed to erect it. The failure to erect the fence may be laid aside as having no bearing on the case.
We conclude that the company was rightfully in the field with its road and cars; that it was not bound to do a useless ■qr an unnecessary act; that therefore, as to hogs, it was not bound to maintain a fence. As the findings show they were not killed by any negligence, unless the failure to fence the track was negligence, the company was not liable.
The judgment will be reversed, and the case remanded with the direction that judgment be entered upon the findings of fact for the plaintiff in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The bill of particulars alleged that defendant’s hogs had been running at large, and trespassed on the ■cultivated fields of plaintiff, and destroyed grain. There was nothing in the pleading showing whether plaintiff’s fields were inclosed by a legal fence, or whether the fields were in a township in which the hog law had been suspended. The plaintiff’s evidence followed his pleading, proved its allegations, and no' more. There was, therefore, no evidence as to the condition of his fences, or concerning any suspension of the hog law. A demurrer to the evidence was overruled, and this presents the sole question for our consideration.
The statute provides, first, that all persons owning swine shall keep them from running at large; and second, that the voters of any township may by vote exempt the township from the operation of that statute. (Gen. Stat., p. 1011, §§46 and 47.) In other words, in- the absence of any vote of a . township, the hog law is in force in it, and swine must be kept up; but by an affirmative vote the hog law may be suspended, and then swine may run at large, and the land-owner must protect his fields by a legal and sufficient fence. Now did the plaintiff make out his case without showing which rule was in force in the township in which the trespass was committed? We think not. The trespass by the defendant’s swine may or may not have given him a right of action, and that depended upon the further question whether or not the hog law was in force. There was no presumption that it was, or was not, in force. It was a question of fact, to be determined upon evidence. This case puts upon the plaintiff, it is true, the burden of proving a negative — that there had been no vote. But no matter; the fact was as accessible to him as to the defendant. It was not like a license, a matter peculiarly within the knowledge of the licensee. (The Territory v. Reyburn, McCahon, 135.) Upon the facts as proved, the court could not say that defendant was at fault in the least respect. If the law authorized him to suffer his swine to run at large, and he did no more than the law authorized, he was guilty of no neglect, no wrong, and could not be mulcted in damages.
The judgment of the court below must be reversed, and the case remanded for further proceedings.
Horton, C. J., concurring.
Valentine, J., dissenting. | [
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|
Malone, J.:
The City of Manhattan (City) brings this interlocutory appeal of the district court’s order suppressing the results of a breathalyzer test in a DUI prosecution. The test results had previously been found to be unreliable by an administrative hearing officer at a driver’s license suspension hearing. The district court ruled that the doctrine of collateral estoppel prevented reconsideration of the validity of the breath test results and suppressed the evidence solely on this ground. The issue on appeal is whether collateral estoppel should apply to an administrative driver’s license suspension hearing in order to bar relitigation of issues in a subsequent criminal proceeding. This is an issue of first impression in Kansas.
On November 2, 1994, the City charged Christine Huncovsky with driving under the influence of alcohol. An Intoxilyzer 5000 breath test registered Huncovsky’s blood alcohol level at .135. On January 11, 1995, the municipal court found Huncovsky guilty of DUI. Huncovsky appealed her conviction to the district court.
Meanwhile, on December 20, 1994, the Kansas Department of Revenue (KDR) instituted an administrative driver’s license suspension proceeding. The matter was continued until February 27, 1995, when the hearing officer concluded there was a significant probability that interferants had contaminated the breathalyzer test. The hearing officer dismissed the license suspension proceeding due to the questionable validity of the Intoxilyzer 5000 test results. Neither party appealed the administrative ruling.
In the criminal proceedings at the district court level, Huncovsky filed a motion to suppress the breathalyzer test results. Huncovsky contended that collateral estoppel prevented reconsideration of the validity of the breath test results. The district court agreed and suppressed the evidence. The City filed this appeal.
We must first examine whether all the elements of collateral estoppel are met under the facts of this case.
“Under Kansas law, collateral estoppel may be invoked where the following is shown: (1) a prior judgment [must have been entered] on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment, (2) the parties must be the same or in privity, and (3) the issue litigated must have been determined and necessary to support the judgment. [Citation omitted.]” (Emphasis added.) Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988).
The City argues that the elements of collateral estoppel are not met in the instant case. Whether the elements of collateral estoppel exist and whether the doctrine should be applied in a given situation are questions of law over which this court exercises unlimited review. See, e.g., Jackson Trak Group, Inc., 242 Kan. at 690-92; Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
First, the City contends that because the administrative ruling occurred after the municipal court conviction, the administrative ruling was not a prior judgment. The City argues that a district court does not acquire original jurisdiction over a municipal court appeal, but rather takes the matter merely as an appealed case. The City concludes that because the district court proceeding is an appeal, only a judgment that existed when the municipal court proceeding was initiated can be used for collateral estoppel purposes.
The City’s contention is unpersuasive. Kansas law mandates a trial de novo at the district court level in a criminal case. K.S.A. 22-3610(a). The district court’s de novo review encompasses a new trial of the action and is not limited to evidence and arguments raised at the municipal court level. See Reddington v. Rank, 176 Kan. 484, 271 P.2d 807 (1954). Thus, in the present case, it seems irrelevant whether the administrative ruling occurred before or after the municipal court proceeding. Logically, the prior judgment requirement means that for collateral estoppel to apply, the judgment must have occurred earlier in time than the attempted relitigation of an issue. In this case, it is clear that the administrative ruling constitutes a prior judgment which the district court could properly consider.
The City next argues that privity does not exist between the KDR and the City. “ ‘There is no generally prevailing definition of “privity” which can be automatically applied to all cases. A determination of the question as to who are privies requires careful examination into the circumstances of each case as it arises.’ ” In re Estate of Beason, 248 Kan. 803, 813, 811 P.2d 848 (1991) (quoting Goetz v. Board of Trustees, 203 Kan. 340, 350-51, 454 P.2d 481 [1969]).
In State v. Parson, 15 Kan, App. 2d 374, 379, 808 P.2d 444 (1991), this court noted that agents of the same government are in privity with each other because they represent not their own rights but the rights of the government. The Parson court held that parties which are “arms of the same governmental body” are in privity with one another. 15 Kan. App. 2d at 379-80.
In State v. Rolde, 18 Kan. App. 2d 525, 855 P.2d 498, rev. denied 253 Kan. 862 (1993), this court applied the “arms of the same government” rule to a situation similar to the case at bar. In Rolde, this court upheld the application of collateral estoppel in a civil habitual violator action brought by the State of Kansas. The prior judgment came from a DUI conviction wherein the plaintiff was the City of Wamego. The Rolde court held that although the parties in the two actions were not precisely the same, they were nevertheless both arms of the government, and the parties were in privity for the purposes of collateral estoppel. 18 Kan. App. 2d at 526-27.
The City attempts to distinguish Rolde by arguing that in Rolde, both the State and the City of Wamego were part of the criminal justice system, while in the present case, the KDR is not part of the criminal justice system. However, in Rolde, the State brought a habitual violator action, which is civil in nature. Thus, contrary to the City’s assertion, the State in Rolde was not acting as part of the criminal justice system.
The City argues that because the interests of the parties differ, privity should not exist. It points out that the KDR’s interest is in enforcing licensing requirements, while the City’s interest is in the effective administration of criminal justice. The City cites State v. O’Rourke, 114 N.C. App. 435, 442 S.E.2d 137 (1994), in support of its contention. In O’Rourke, the North Carolina Court of Appeals held that privity could not be established because of the different purposes behind administrative driver’s license revocation actions and criminal DUI actions. 114 N.C. App. at 440.
We find the rationale behind the O’Rourke decision unpersuasive. Both the criminal DUI statute and the administrative driver’s license suspension statute act to remove unsafe drivers from the roads. While the two actions take different forms, they share a common purpose of maintaining safe roadways. In that respect, the actions have a common interest, and it seems reasonable to conclude that the parties in each action (the KDR and the City) are in privity.
For its next argument, the City asserts that the issue determined at the administrative hearing was not the same question presented to the district court. The City contends that the administrative hearing officer did not decide whether the Intoxilyzer 5000 test results were admissible in a criminal prosecution, but rather only decided whether the license suspension proceeding should be dismissed.
Consideration of this issue is hampered by the fact that the appellate record contains no documentation from the administrative hearing. As a result, this court cannot discern what the administrative hearing officer actually decided. “ 'An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court.’ ” State v. Richardson, 256 Kan. 69, 84, 883 P.2d 1107 (1994). In any event, K.S.A. 1995 Supp. 8-1002(h)(2)(D) and (F) mandate that the scope of a license suspension hearing shall include a determination of whether the testing equipment and procedures used were reliable. Thus, it appears that the same issue of the reliability of the breath test was before both the administrative hearing officer and the district court.
Finally, the City argues that the reliability issue was not fully litigated at the administrative hearing because the KDR was not represented by an attorney at the hearing. Again, without the record of the administrative hearing, this court cannot properly address the City’s claim of error. In terms of reviewing whether the elements of collateral estoppel are met, we cannot say in this instance that the hearing officer’s determination was hampered because the KDR was not represented by an attorney at the administrative hearing.
Based upon the record before us, we believe that the defendant makes a persuasive argument that all of the elements of collateral estoppel are met under the facts of this case. However, we make no final determination of this issue. The City argues that even if the elements of collateral estoppel are met, a new determination of the issue of the reliability of the breath test was warranted in district court by the differences in the quality and extensiveness of the procedures followed in the administrative hearing and in the district court. We believe this argument is meritorious and controls the outcome of this case.
The City’s argument is based upon Restatement (Second) of Judgments § 28 (1980), which provides:
“Exceptions to the General Rule of Issue Preclusion
“Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
“(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts . . . .”
Further, comment d to Restatement (Second) of Judgments § 28 states that a compelling reason why issue preclusion should not apply exists where die procedures available in one court are tailored to the prompt, inexpensive determination of small claims, because the procedures may be wholly inappropriate to the determination of the same issues when presented in the context of a much larger claim.
Although no Kansas court has addressed this issue, other jurisdictions in similar cases have concluded that a disparity in the quality and extensiveness of procedures justifies an exception to the general rule of collateral estoppel. In State v. Ratliff, 304 Or. 254, 744 P.2d 247 (1987), the Oregon Supreme Court held that die limited procedures of an administrative driver’s license suspension hearing provided an inadequate basis to justify giving preclusive effect to the decisions of hearing officers. 304 Or. at 258-60. The Ratliff court also noted a public policy rationale for its decision and reasoned that applying collateral estoppel would subvert the legislative intent of expedited, informal administrative hearings by giving the State incentive to fully litigate the matter at the administrative level in order to protect its position at the criminal level. 304 Or. at 260. Other courts that have reached similar holdings include Williamsen v. People, 735 P.2d 176 (Colo. 1987); State v. Gusman, 125 Idaho 810, 874 P.2d 1117 (Ct. App. 1993), aff’d 125 Idaho 805, 874 P.2d 1112 (1994); and People v. Moore, 138 Ill. 2d 162, 561 N.E.2d 648 (1990).
We find the reasoning of the court in Ratliff to be applicable to administrative driver s license suspension hearing procedures in Kansas. Although we have no record of the administrative hearing in this case, Kansas law provides some guidance to the procedures which are normally utilized in an administrative driver’s license suspension hearing. K.S.A. 1995 Supp. 8-1002 provides that whenever a breath test is failed or refused, the individual can request a hearing by a written request mailed within 10 days of the notice of license suspension, and the individual may subpoena witnesses. See K.S.A. 1995 Supp. 8-1002(g). The hearing must be held within 30 days of the request. K.S.A. 1995 Supp. 8-1002(k). At the hearing, an affidavit is sufficient to establish that on the date of the test, the breath testing equipment and operator were certified, and if a blood alcohol test is performed, a copy of the lab report is admissible. See K.S.A. 1995 Supp. 8-1002(i), (j). The hearing officer may issue subpoenas for the attendance of witnesses and the production of relevant books and papers, and he or she may require an examination or reexamination of the person involved. K.S.A. 1995 Supp. 8-255(d), (e).
Analysis of the license suspension hearing procedures reveals a somewhat limited proceeding likely designed for speedy determination of an individual’s driver’s license status. The administrative proceeding is unrelated to any criminal action which may be filed and, in any event, the criminal prosecutor does not receive notice of the administrative hearing. The only persons required to be present by statute are the driver and the hearing officer and, of course, the arresting officer must be subpoenaed. Affidavits can be used in place of five testimony. The hearing is informal, and the procedures are substantially less stringent than those utilized in an adversarial criminal proceeding. As a result, the administrative hearing procedures are inappropriate to the determination of the same issues when presented in a criminal proceeding and, thus, the application of collateral estoppel is unwarranted. Further, giving conclusive effect to administrative rulings would likely undermine the swiftness of the license suspension action by creating incentive for the State to fully litigate issues at the administrative level.
Finally, in State v. Mertz, 258 Kan. 745, 907 P.2d 847 (1995), the Kansas Supreme Court held that a driver’s license suspension sanction imposed at an administrative hearing does not bar a subsequent criminal prosecution for DUI on the grounds of double jeopardy. In reaching this decision, the court relied in part on the analysis that the driver’s license suspension sanction is remedial in nature and one of the purposes is to quickly remove dangerous drivers from the street. Although the issue before us is different than the issue in Mertz, we find that the same analysis can be applied to support a conclusion that collateral estoppel should not apply to an administrative driver’s license suspension hearing, even if die elements of collateral estoppel are technically met.
Accordingly, we hold that the doctrine of collateral estoppel should not apply to an administrative driver’s license suspension hearing in order to bar relitigation of issues in a subsequent criminal proceeding. Therefore, the district court erred in suppressing the evidence solely on the grounds of collateral estoppel.
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Lewis, J.:
Petitioner pled guilty to a charge of terroristic threat in February 1992 and, in March 1992, was sentenced to a term of 1 to 5 years. In May 1993, he was released on parole and remained on that status until July 1994 when his parole was revoked.
In August 1994, petitioner’s sentence was converted to a sentence of 10 months’ imprisonment and 12 months’ postrelease supervision under the Kansas Sentencing Guidelines Act (KSGA).
In December 1994, petitioner filed a motion under K.S.A. 60-1507. He alleged that prior to the sentence conversion, he spent 14 months on parole from his indeterminate sentence. He argues that the time spent on parole should be credited to satisfy his postrelease supervision time under the converted sentence. The trial court denied the motion, and this appeal followed.
At the time he filed the motion under consideration, petitioner was apparently in jail on unrelated charges. In his brief, he tells us that he was convicted and sentenced on those charges. However, there is no support for that statement in the record. Consequently, we are unable to determine whether petitioner was in jail because he was convicted of new charges or because his postreiease supervision had been revoked, or both.
We also suspect that the issue raised on appeal is moot. Petitioner seeks to be released from further liability on his 1992 sentence. The passage of time since petitioner was sentenced and his sentence was converted convinces us beyond any doubt that he has served the 10 months’ imprisonment portion of the KSGA sentence. We also strongly suspect that either through confinement or while on parole, petitioner has served the entire indeterminate sentence he was given in 1992. If this is correct, then the matter is moot. However, we cannot determine from the record whether petitioner is currently serving a new sentence by reason of conviction from a new charge or whether he continues to serve the original 1- to 5-year sentence. For that reason, we render an opinion on the merits.
There is only one question presented on appeal. May an inmate serve the postrelease supervision portion of a converted KSGA sentence by having spent time on parole prior to the conversion of that indeterminate sentence? We hold that he or she may not and affirm the trial court’s decision in this matter.
We dealt with a similar issue in Phillpot v. Shelton, 19 Kan. App. 2d 654, 875 P.2d 289, rev. denied 255 Kan. 1003 (1994). That case involved several inmates whose sentences had been converted under the KSGA. These inmates had all been confined, prior to the time of sentence conversion, for a period of time in excess of the combined imprisonment and postrelease supervision periods of their converted sentences. They asked to have the time which they served in excess of their presumptive imprisonment sentences credited against the postrelease supervision period of those sentences. We held in that case that time spent in prison under a preKSGA sentence did not satisfy both the imprisonment and the postrelease supervision portions of a converted KSGA sentence.
“A reading of the statutes indicates that, under the Kansas Sentencing Guidelines Act, a defendant is to serve a bifurcated sentence — incarceration followed by postrelease supervision. Other than die interplay of good time credit, these two parts are effectively independent from one another. The statutes indicate postrelease time is mandatory and comes after a defendant has been released from incarceration. Because appellants have served only a period of incarceration under their indeterminate sentences, they are subject to postrelease supervision upon their release from incarceration.” 19 Kan. App. 2d 654, Syl. ¶ 8.
We also pointed out in Phillpot that a sentence cannot be increased in length as a result of conversion under the KSGA. 19 Kan. App. 2d 654, Syl. ¶ 7. In Phillpot, the inmates in question had served only a portion of the period of incarceration under their indeterminate sentences. Since they still had time left to serve, they remained liable to postrelease, supervision on their releases from incarceration.
In the case at hand, petitioner asks to be credited with time spent on parole under his indeterminate sentence. Phillpot did not address this issue.
In Phillpot, we held that under the KSGA, a defendant serves a bifurcated sentence, a period of confinement followed by post-release supervision. K.S.A. 21-4703(m), (o), and (p) define some of the terms at issue:
“(m) ‘imprisonment’ means imprisonment in a facility operated by the Kansas department of corrections;
“(o) ‘nonimprisonment,’ ‘nonprison’ or ‘nonprison sanction’ means probation, community corrections, conservation camp, house arrest or any other community based disposition;
“(p) ‘postrelease supervision’ means the release of a prisoner to the community after having served a period of imprisonment or equivalent time sewed in a facility where credit for time sewed is awarded as set forth by the court, subject to conditions imposed by the Kansas parole board and to the secretary of corrections’ supervision.” (Emphasis added.)
It is clear that under the statutes, postrelease supervision time does not begin until after the inmate has served the entire period of incarceration under the KSGA.
Under the old sentencing scheme, “parole” was an entirely different concept. In Baier v. State, 197 Kan. 602, Syl. ¶ 1, 419 P.2d 865 (1966), the Supreme Court said: “A prisoner who institutes a K.S.A. 60-1507 proceeding, and is released on parole from the state penitentiary while his appeal from a denial of his motion by the district court is pending, remains in ‘custody’ within the meaning of the statute, and the questions presented are not thereby rendered moot.”
K.S.A. 22-3722 provides in part:
“The period served on parole or conditional release shall be deemed service of the term of confinement, and, subject to the provisions contained in K.S.A. 75-5217 and amendments thereto relating to an inmate, who is a fugitive from or has fled from justice, the total time served may not exceed the maximum term or sentence. The period served on postrelease supervision shall vest in and be subject to the provisions contained in K.S.A. 75-5217 and amendments thereto relating to an inmate who is a fugitive from or has fled from justice. The total time served shall not exceed the postrelease supervision period established at sentencing.” (Emphasis added.)
It is clear from the statutes and the prior decisions of the Supreme Court that time spent on parole is time spent in “custody” and is to be credited as service against the time of confinement. Postrelease supervision, on the other hand, does not begin until after the confinement portion of the sentence has been served. The only instance in which an inmate will be required to serve his or her postrelease supervision time in custody is when the inmate violates the terms of the postrelease supervision. K.S.A. 1995 Supp. 75-5217(b).
We hold that time spent on parole under an indeterminate sentence may not be credited to the postrelease supervision period of a converted sentence. The trial court was correct in reaching this conclusion, and we affirm the trial court on that basis.
However, it is also true that time spent on a converted sentence cannot exceed the time required to serve the indeterminate sentence. See State v. Fierro, 257 Kan. 639, 645-46, 895 P.2d 186 (1995). If the petitioner has served his entire 1- to 5-year sentence, either by confinement or by time spent on parole or by a combination of both, he cannot also be required to serve postrelease supervision time under his converted sentence. This would have the effect of extending his guidelines sentence beyond the time called for by the original indeterminate sentence, if petitioner has not completely served his indeterminate sentence of 1 to 5 years, he remains subject to postrelease supervision time under his converted sentence and cannot be credited with the time spent on parole. The time he must spend on postrelease supervision depends on how much time remains under his original sentence. If petitioner has completely served or “flattened” his original indeterminate sentence, then he must be released from further liability under that sentence or under his converted sentence.
We are unable to determine from the record how much, if any, time remains to be served on the original indeterminate sentence. For that reason, we affirm the trial court’s decision but remand this matter for a determination of how much, if any, postrelease supervision time petitioner must serve under his guidelines sentence.
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Brazil, C.J.:
The Kansas State Board of Agriculture (KSBA or Board) filed a 16-count complaint against Kermit Kams, a crop duster, alleging violations of the Kansas Pesticide Law (KPL), K.S.A. 2-2438a etseq. The complaint sought the assessment of civil penalties, a refusal of Kams’ pesticide business application, and a revocation of his commercial applicator certificate. The KSBA hearing officer found Kams in violation of the KPL under each count of the complaint, assessed fines against Kams totaling $13,400, and ordered that Kams’ business license be denied and his certification revoked. Kams filed a petition for judicial review in Pottawatomie County District Court. The district court dismissed three counts of the original complaint, set aside the hearing officer’s decision to deny Kams a business license and revoke his pesticide applicator certificate, and reduced the total civil penalties against Kams to $4,200. KSBA appeals, contending the court erred in denying its motion for change of venue; in denying its motion to dismiss Kams’ petition for review for insufficiency or, in the alternative, order Kams to file a more specific petition; and in exceeding its scope of review under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. We affirm in part and reverse in part.
KSBA contends the court erred in denying its motion for a change of venue.
In his petition for judicial review filed in the district court, Kams alleged: “Venue is proper in this Court pursuant to K.S.A. 77-609(2)(b) [sic] as the agency order would be effective in Pottawatomie County, Kansas.” The KJRA does not require a responding party in a judicial review proceeding to file an answer, K.S.A. 77- 614(c), and no answer was filed by KSBA in this case. However, at the initial hearing before the district court on March 23, 1994, KSBA objected to venue in Pottawatomie County and requested the case be transferred to Shawnee County because all of the relevant contacts by Kams with KSBA had occurred there and all of KSBA’s orders had been issued by the agency in Topeka. Kams argued that the KSBA’s order would be effective where Kams conducted his business activity and that, because the bulk of his business activity took place in Pottawatomie County, venue was proper in Pottawatomie County. Following these arguments, the court entered a bench ruling denying the motion for a change of venue.
K.S.A. 77-609(b) provides for venue under the KJRA and states:
“Except as otherwise provided by K.S.A. 8-259 [drivers’ licenses], 31-144 [fire safety and prevention], 44-566 [workers compensation], 72-5430a [teachers’ contracts] and 74-2426 [tax appeals], and amendments thereto, venue is in the county in which the order or agency action is entered or is effective or the rule and regulation is promulgated.” (Emphasis added.)
The emphasized language above was added by the legislature in 1986. L. 1986, ch. 318 § 4.
The KJRA venue provision in its original form appears to have been a narrow one. KSBA notes Professor David Ryan’s analysis of venue under the KJRA shortly after its enactment:
“Venue was one of the tougher issues in the course of the legislative promulgation of the KJRA.. The Judicial Council recommended several alternative venues, but it may be noted a number of state agencies voiced their concern about traveling outside Topeka. In the resulting controversy over whether to grant a broad or narrow venue for administrative appeals, the proposed Act went for many weeks without any venue provision at all between the House and Senate versions, until it was finally resolved. In its final format, venue is quite simple and pro-agency: being the ‘county in which the order is entered or the rule or regulation is promulgated.’ This will far more often than not be the Shawnee County District Court in Topeka.” Ryan, The New Kansas Administrative Procedure and Judicial Review Acts, 54 J.K.B.A. 53, 65 (1985).
However, as noted above, the 1986 amendment places venue in the county in which the order or agency action is entered or is effective, and it requires this court to determine the legislative meaning and intent of the amendment.
The legislative history surrounding the 1986 amendment is not very enlightening. The Senate Judiciary Committee minutes accompanying the proposed change do not state the purpose behind the amendment other than that the amendments to the Act were merely “technical” in nature.
KSBA argues venue lies only in the county where an administrative order is issued and not in any county where the consequences, results, or effects of the order are felt. KSBA emphasizes that the wording of K.S.A. 77-609(b), providing venue in “the county,” suggests venue is proper in a single county to the exclusion of all others.
Kams argues KSBA’s interpretation of the statute is overly narrow and would have the practical effect of placing venue in Shawnee County for all administrative appeals. If such were the case, Kams argues, then the legislature could have explicitly placed venue in the Shawnee County District Court in enacting the KJRA. Kams believes that, because KSBA’s order prevents him from crop dusting in all 105 counties in Kansas, venue lies in any of those 105 counties, including Pottawatomie.
Whether or not venue would lie in all 105 counties, we agree that venue would lie in those counties in which Kams has been operating. ‘When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Bank IV Wichita v. Plein, 250 Kan. 701, 705-06, 830 P.2d 29 (1992).
Clearly, the language in K.S.A. 77-609(b) prior to the 1986 amendment would have placed venue in this case in Shawnee County as the county in which the order was “entered.” KSBA’s argument would have us conclude that the 1986 amendment had no effect upon venue and that the added language “or is effective” is mere surplusage. In other words, KSBA argues that following the 1986 amendment, venue is still limited to the county in which the order is “entered.”
We disagree and conclude that the obvious legislative intent in the 1986 amendment was to broaden or expand venue to include counties in which agency orders were effective. “When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.” Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990).
In the present case, it is uncontroverted that Kams was doing business in Pottawatomie County and that KSBA’s order was intended to apply to his operations in that county. We conclude that the district court in Pottawatomie County had venue and that it did not err in denying KSBA’s motion to change venue.
Next, KSBA contends the court erred in denying its oral motion to dismiss Kams’ petition for failing to comply with K.S.A. 1995 Supp. 77-614(b) (5) and (6) or in the alternative to compel Kams to file a more specific petition. In conjunction with this contention, KSBA asserts the court erred in permitting Kams to argue grounds for relief which were not contained in the allegedly deficient petition.
Following the court’s denial of KSBA’s oral motion for a change of venue at the March 23, 1994, hearing, KSBA orally moved to dismiss the appeal on the basis that Kams’ petition for review failed to comply with K.S.A. 1995 Supp. 77-614(b)(5) and (6). Under these subsections of K.S.A. 1995 Supp. 77-614(b),
“[a] petition for judicial review shall set forth:
(5) facts to demonstrate that the petitioner is entitled to obtain judicial review: [and]
(6) the petitioner’s reasons for believing that relief should be granted.”
In the alternative, KSBA orally moved to require Kams to file a more specific petition meeting the requirements of K.S.A. 1995 Supp. 77-614(b)(5) and (6).
In response, Kams stated that his petition for judicial review raised two issues: (1) whether the findings of fact and conclusions of law of the hearing officer were supported by the record, and (2) whether KSBA lacked jurisdiction through its Acting Secretary to issue any orders because it was an improperly constituted decision-making body. The first issue which Kams raised was not actually contained in his petition for judicial review but was contained in his earlier petition for review submitted to KSBA. The second issue was in reference to a decision by the United States District Court for the District of Kansas which declared unconstitutional the stat utory method for electing members to the KSBA. See Hellebust v. Brownback, 824 F. Supp. 1511 (D. Kan. 1993), aff’d 42 F.3d 1331 (10th Cir. 1994). A new statutory scheme has since been enacted, effective May 4, 1995. See K.S.A. 1995 Supp. 74-560 et seq.
In response to KSBA’s motion to dismiss or in the alternative for a more specific petition, the district court ruled it would assume the KSBA had jurisdiction through its Acting Secretary to issue orders unless instructed otherwise by a higher authority. In addition, the court stated: “Well, based on that limited scope of review as to whether or not the facts do support the action that was taken I will take jurisdiction of this matter and we will proceed on the pleadings that have been filed.” The court later clarified, to the agreement of both parties, that the remaining issue for its review was whether or not the hearing officer’s findings of fact and conclusions of law were supported by the evidence presented to the hearing officer. These rulings were journalized in a journal entry filed March 25, 1995. The remainder of the March 23,1994, hearing centered on Kams’ motion to grant a stay of the Board’s order, which the court granted.
At the ensuing hearing held on April 29,1994, KSBA again questioned the sufficiency of the petition. KSBA stated that, at the March 23 hearing, it had relied upon Kams’ statement that the issue of sufficiency of the evidence was adequately contained in the petition for judicial review. After further examining the petition for judicial review following the March 23 hearing, however, KSBA discovered that sufficiency of the evidence had not been set forth as an issue. The court ruled it would allow Kams to raise the issue even though not contained in the petition because Kams had made it clear at the March 23 hearing that sufficiency of the evidence would be an issue and because KSBA had no claim of unfair surprise. KSBA contends the court erred in allowing.Kams to challenge the sufficiency of the hearing officer’s decision.
In University of Kansas v. Department of Human Resources, 20 Kan. App. 2d 354, 887 P.2d 1147 (1995), the claimant in a workers compensation case appealed a reduced award by the district court contending, in part, that the district court lacked jurisdiction to consider the matter because the employer’s petition for judicial review failed to meet the specificity requirements of the KJRA. This court noted that whether the employer’s petition conformed to K.S.A. 77-614(b) was a question of law over which it had unlimited review. 20 Kan. App. 2d at 355-56. The court held: “We decline to treat the specificity requirement under K.S.A. 77-614(b) as a jurisdictional rule. The procedures [under the civil code] for obtaining a more definite statement can be used in an action for judicial review of agency actions.” 20 Kan. App. 2d at 357. However, the court further held that the claimant’s failure to raise the issue in the district court constituted a waiver of any failure by the employer to plead with specificity. 20 Kan. App. 2d at 357.
In the present case, KSBA did not file a motion for a more specific petition under K.S.A. 60-212(e). In fact, KSBA did not even file an answer to Kams’ petition for review, as one was not required under K.S.A. 1995 Supp. 77-614(c). However, KSBA did orally move for a more specific petition at the first hearing held before the district court. In response, Kams stated that whether the findings of fact and conclusions of law of the hearing officer were supported by the record was an issue that was being raised.
An examination of Kams’ petition for judicial review shows that it fails to comply with K.S.A. 1995 Supp. 77-614(b)(5) and (6) — it neither presents facts demonstrating that Kams is entitled to judicial review nor states a challenge to the sufficiency of the findings of fact and conclusions of law of the hearing officer. Under University of Kansas v. Department of Human Resources, however, such defects did not deprive the court of jurisdiction of the matter.
The question remains whether the court erred in allowing Kams to cure the defects in his petition through oral averments at the March 23, 1994, hearing.
The holding in University of Kansas v. Department of Human Resources reasons that the pleading mies for general Chapter 60 cases apply to cases under the KJRA. KSBA admitted at the April 29, 1994, hearing that it was not claiming any surprise as to the issues which Kams actually intended to raise in the district court. Rather, KSBA was merely asserting Kams’ failure to comply with the specific language of K.S.A. 1995 Supp. 77-614(b) in his written petition. We find the court did not err in denying the motion to dismiss or in failing to order Kams to file a more specific petition because KSBA had adequate notice of the issue sought to be raised by Kams.
Finally, KSBA contends that, presuming this court allows the issue of sufficiency of the evidence to be raised, the district court erred in exceeding its scope of review under K.S.A. 77-621.
K.S.A. 77-621(c) dictates the scope of review, as relevant here:
“The court shall grant relief only if it determines any one or more of the following:
(4) the agency has erroneously interpreted or applied the law;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act, or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
Under the KJRA, the party seeking to prove the invalidity of the agency action bears the burden of proof in the district court. K.S.A. 77-621(a)(l).
As we view the trial court’s decision, the trial court essentially agreed with the hearing officer’s factual findings with regard to counts 4, 6-11, and 14 of the Board’s petition. The trial court, however, disagreed with the extent of the fines imposed by the hearing officer based upon those violations and with the hearing officer’s decision to deny Kams a business license and revoke his certification. On counts 1 and 5, the trial court found some of the findings and/or conclusions of the hearing officer were supported by substantial evidence. On counts 2; 3, and 12, the trial court found the findings and/or conclusions of the hearing officer were not supported by substantial evidence.
As to counts 1, 4-11, and 14 of the petition, KSBA argues the court erred in modifying the penalties imposed by the hearing officer. As suggested by KSBA, the court essentially ruled that as to the fines, license denial, and certificate revocation, “the agency action [was] otherwise unreasonable, arbitrary or capricious.” K.S.A. 77-621(c)(8).'
As a preliminary matter, KSBA again seems to question whether Kams adequately specified review of this issue by the court. We have already held that Kams’ petition for judicial review was sufficient. Regardless, although not stated according to the language of K.S.A. 77-621(c)(8), the prayer for relief in Kams’ petition for judicial review requested that his applicator’s license and privileges be reinstated and that the fine entered by the Board be substantially reduced. We find, independent of our earlier holding, that Kams adequately raised as an issue in his petition for judicial review whether the penalties ordered by the hearing officer were proper.
The hearing officer was authorized under K.S.A. 2-2449 to deny a business license to Kams and revoke his certification for failing to comply with the provisions of the KPL. Each of the civil fines assessed by the hearing officer was within the statutory limits prescribed by the legislature in K.S.A. 2-2440e and K.A.R. 4-13-62.
The mle in this jurisdiction is that a reviewing court may not substitute its judgment for that of an administrative agency. Kansas Racing Management, Inc., v. Kansas Racing Comm'n, 244 Kan. 343, 365, 770 P.2d 423 (1989). “A rebuttable presumption of validity attaches to all actions of an administrative agency and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency’s actions.” 244 Kan. at 365.
At the hearing before the district court, Kams did not present any argument to show why the hearing officer’s penalties were arbitrary and capricious. However, the district court, although it upheld the findings of the hearing officer regarding violations by Kams on counts 4, 6-11, and 14 and part of the findings regarding counts 1 and 5, substantially reduced the civil fines for those counts and reversed the hearing officer’s denial of Kams’ business license and revocation of Kams’ certification. In essence, the court substituted its judgment for that of the agency and the legislature concerning the appropriate penalties for the violations without an adequate basis for doing so. Further, without reversing or modifying the civil fines imposed by the hearing officer in counts 15-17, die court found that the denial of Kams’ business license and revocation of his certification were unreasonable and unwarranted. We find the court erred in substituting its judgment for the hearing officer on these counts without an adequate basis for doing so.
As to counts 2, 3, and 12, KSBA contends the court erred in finding the hearing officer’s decision was not supported by substantial competent evidence.
The KPL does not provide for de novo review in the district court of the Board’s decision. K.S.A. 2-2440e(d); K.S.A. 2-2452. Rather, pursuant to the KJRA, the district court was required to determine whether the hearing officer’s findings of fact were supported by substantial evidence after review of the whole agency record. K.S.A. 77-621(c)(7). “Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, Syl. ¶ 2, 891 P.2d 422 (1995). This court must give deference to the findings of fact by the hearing officer, which findings became a final order when the Acting Secretary of KSBA declined to review them. See Peck v. University Residence Committee of Kansas State Univ., 248 Kan. 450, 455-56, 807 P.2d 652 (1991); Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 961-62, 811 P.2d 876 (1991).
Also, it has often been said that, under the KJRA, an appellate court exercises the same review of the agency’s action as does the district court. See, e.g., Reed v. Kansas Racing Comm’n, 253 Kan. 602, 609, 860 P.2d 684 (1993). Therefore, we must review the hearing officer’s decision in the same manner as the district court, viz., review the whole record and determine whether there is substantial evidence to support the hearing officer’s findings of fact.
On count 2, the hearing officer found evidence of spray drift and label violations following Kams’ aerial application to property farmed by Ken Caffrey on or about June 7,1991. The district court found the hearing officer’s findings of fact and conclusions of law were entirely unsupported by the evidence. As a result, the court dismissed count 2 of the complaint.
We have reviewed the record as a whole as related to count 2 of the petition and find the hearing officer’s decision is supported by substantial evidence. Thus, we hold the district court erted in reversing and modifying the penalties ordered by the hearing officer as to count 2.
On count 3, the hearing officer found that Kams had made an aerial .application of a pesticide for the City of Silver Lake on or about June 12, 1991, without the required license and certification to do so. The district court found the KSBA had failed to show that Kams was even spraying within the limits of the City of Silver Lake and, therefore, dismissed count 3.
We have reviewed the record as a whole as related to count 3 of the complaint and find the hearing officer’s decision is supported by substantial evidence. In particular, we find Kams’ amended answer to the KSBA’s original complaint on this count to contain an admission that the aerial application involved under this count occurred within the City of Silver Lake. Thus, we hold the district court erred in reversing and modifying the penalties ordered by the hearing officer as to count 3.
On count 12, the hearing officer found evidence of spray drift and label violations following Kams’ aerial application of pesticide to the property of Tom Farrell on or about May 4, 1992. The hearing officer also found that Kams engaged in pest control services without a proper business license in making the application. The district court found that the facts did not support the hearing officer’s conclusions and dismissed count 12 of the complaint.
We have reviewed the record as a whole as related to count 12 of the complaint and find that, although a close question, the hearing officer’s decision is supported by substantial evidence. Thus, we hold the district court erred in reversing and modifying the penalties ordered by the hearing officer as to count 12.
Affirmed in part, reversed in part, and remanded for reinstatement of penalities imposed by the hearing officer in counts 1, 4-11, and 14-17. | [
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Green, J.:
The Kansas Department of Revenue (KDR) suspended Sung Bae Kim’s driver’s license for 1 year. KDR claimed that. Kim had refused to submit to a blood alcohol test because he failed to furnish an adequate breath sample to the testing law enforcement officer. When Kim asked the trial court to review the decision of KDR, KDR moved for summary judgment. The trial court granted summary judgment in favor of KDR. On appeal, Kim contends that the trial court inappropriately granted summary judgment because genuine issues of material fact still existed. We disagree. Additionally, Kim contends that K.S.A. 1995 Supp. 8-1001 is unconstitutional because it violated his right to due process of law. We disagree and affirm the judgment of the trial court.
When Kim was arrested for driving under the influence of alcohol, he admitted to having recently drunk three beers. Through counsel, Kim requested an administrative hearing on the proposed suspension of his driver’s license.
Although Kim, a Korean immigrant, claimed to have problems understanding English-speaking individuals, he failed to request an interpreter for the administrative hearing. The administrative hearing resulted in the suspension of Kim’s driver’s license.
Kim next petitioned the trial court for review of the hearing officer’s decision. Initially, Kim contended that his suspension should be set aside because the arresting officer failed to present him with an oral and written notice, as required by K.S.A. 1995 Supp. 8-1001, in a language which he could understand. Kim, however, later amended his petition to challenge K.S.A. 1995 Supp. 8-1001. He claimed that the statute was unconstitutional as it applied to him.
Because Kim’s administrative hearing was strictly a refusal hearing, K.S.A. 1995 Supp. 8-1002(h)(l) controlled the scope of that hearing. In Woodhead v. Kansas Dept. of Revenue, 13 Kan. App. 2d 145, 765 P.2d 167 (1988), we interpreted the nearly identical predecessor to 8-1002(h)(l): “K.S.A. 1987 Supp. 8-1002(d) clearly sets forth the only issues which may be considered by the Department.” (Emphasis added.) 13 Kan. App. 2d at 147.
K.S.A. 1995 Supp. 8-1002(h)(l) states:
“If the officer certifies that the person refused the test, the scope of the hearing shall be limited to whether: (A) A law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person’s system; (B) the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death; (C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; and (D) the person refused to submit to arid complete a test as requested by a law enforcement officer.”
Kim raises two issues that were neither covered by K.S.A. 1995 Supp. 8-1002(h)(1) nor raised at the administrative hearing. First, he argues that he was denied the effective assistance of counsel. Second, he argues that KDR’s failure to furnish him with an interpreter at the administrative hearing violated his rights to due process. We have held that despite the trial court’s de novo review of driver’s license hearings, a plaintiff’s appeal is limited to those issues presented at the administrative hearing. Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, 329, 851 P.2d 1385, rev. denied 253 Kan. 864 (1993). Because Kim did not present these issues at the administrative hearing, the trial court did not have jurisdiction to address these issues. Where the district court had no jurisdiction, an appellate court does not acquire jurisdiction over the subject matter on appeal. See City of Overland Park v. Barron, 234 Kan. 522, 525, 672 P.2d 1100 (1983).
In any event, both arguments are fatally flawed. A proceeding to suspend a licensée’s driving privileges for refusal to take a requested chemical test is civil or administrative in nature. State v. Maze, 16 Kan. App. 2d 527, 535, 825 P.2d 1169 (1992). The right to counsel does not apply to civil or administrative proceedings. See State v. Bristor, 236 Kan. 313, Syl. ¶ 1, 691 P.2d 1 (1984). As a result, this argument must fail.
Similarly, Kim’s argument that his right to due process was violated because KDR failed to furnish him with an interpreter at the administrative hearing is unpersuasive. Kim had several opportunities to request an interpreter. Kim’s form request for an administrative hearing was accompanied by a letter from his attorney. The letter did not include a request for .an interpreter or indicate that Kim did not understand English. The hearing officer’s notes show that Kim also failed to indicate that he needed an interpreter at the administrative hearing. In his brief, Kim does not allege that he requested an interpreter at any stage. Therefore, KDR was not put on notice that an interpreter was needed. Consequently, Kim’s argument must fail.
Kim next argues that he did not understand the officer and that his lack of understanding and the failure to furnish the implied consent in Korean is equivalent to failing to provide the implied consent advisory notices. He also argues that K.S.A. 1995 Supp. 8-1001 is unconstitutional because it allows notice to “be given in English to an individual who does not speak the English language.”
In its memorandum decision, the trial court stated:
“Kim’s petition raises two issues: first, that he did not understand the notice given by the officer, who requested him to take the breath test; and second, that K.S.A. 8-1001 is unconstitutional for fading to provide him a warning in his native language — Korean. These issues are ably discussed with appropriate authority in KDR’s briefs in support of its Motion for Summary Judgment. In summary, other jurisdictions have examined these issues and concluded that the legislature’s exercise of the constitutional police power to protect the health and safety of its citizens in their travels on the public ways does not abridge a motoristas] right of equal protection of the law. Driving is a privilege subject to reasonable regulation by the legislature.”
Our research has found no Kansas cases addressing a plaintiff s failure to understand the required notices because of a language barrier. Nevertheless, KDR. cites to several cases from other jurisdictions which are persuasive. See State v. Webb, 212 Ga. App. 872, 443 S.E.2d 630 (1994) (hearing- and speech-impaired defendant); State v. Tosar, 180 Ga. App. 885, 350 S.E.2d 811 (1986) (Spanish-speaking defendant); Warner v. Commissioner of Public Safety, 498 N.W.2d 285 (Minn. App. 1993) (deaf plaintiff); Yokoyama v. Commissioner of Public Safety, 356 N.W.2d 830 (Minn. App. 1984) (Japanese-speaking plaintiff); Com. v. Mordan, 419 Pa.. Super. 214, 615 A.2d 102 (1992), aff'd 534 Pa. 390, 633 A.2d 588 (1993) (deaf-mute defendant). In those cases, each court held that the failure to understand the warnings is not a defense and does not render the results of any tests inadmissible. Conversely, Kim cites to no authority which has held that a defendant must understand the warnings given.
Furthermore, K.S.A. 1995 Supp. 8-1001(f)(3) states that “[i]t shall not be a defense that the person did not understand the written or oral notice required by this section.” See Buchanan v. Kan sas Dept. of Revenue, 14 Kan. App. 2d at 169, 171, 788 P.2d 285 (1989).
As to the constitutionality of K.S.A. 1995 Supp. 8-1001, we must resolve all doubts in favor of the statute’s validity. “If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.” Boatright v. Kansas Racing Comm'n, 251 Kan. 240, 243, 834 P.2d 368 (1992).
K.S.A. 1995 Supp. 8-1001 is remedial law and should be liberally construed to promote the health, safety, and welfare of the public. See K.S.A 1995 Supp. 8-1001(i). Consequently, we conclude that K.S.A. 1995 Supp. 8-1001 is constitutional.
Kim next argues that the trial court inappropriately granted summary judgment because genuine issues of material fact still existed. In explaining when summary judgment is proper, our Supreme Court stated:
“Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. [Citations omitted.] When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. [Citations omitted.]” Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306, 756 P.2d 416 (1988).
KDR’s motion for summary judgment included a list of uncontroverted facts, which addressed each issue in K.S.A. 1995 Supp. 8-1002(h)(l):
“1. On December 25, 1993, Pdm. R. Gardner of the Overland Park Police Department, observed the plaintiff’s vehicle already stopped. See ‘Law Enforcement Officer’s Certification,’ ¶5 . . . .
“2. The officer detected the odor of alcohol about the plaintiff. See ‘Law Enforcement Officer’s Certification,’ ¶7 . . . .
“3. The plaintiff failed field sobriety tests. See ‘Law Enforcement Officer’s Certification,’ ¶7 . . . .
“4. The plaintiff displayed slurred speech. See ‘Law Enforcement Officer’s Certification,’ ¶7 . . . .
“5. The plaintiff displayed bloodshot eyes. See ‘Law Enforcement Officer’s Certification,’ ¶7 . . . .
“6. The plaintiff displayed difficulty in communicating. See ‘Law Enforcement Officer’s Certification,’ ¶7 . . . .
“7. The plaintiff displayed poor balance or coordination. See ‘Law Enforcement Officer’s Certification,’ ¶7 . . . .
“8. The plaintiff admitted consuming alcohol or drugs. See ‘Law Enforcement Officer’s Certification,’ ¶7 . . . .
“9. The officer arrested or took the plaintiff into custody for DUI. See ‘Law Enforcement Officer’s Certification,’ ¶2 . . . .
“10. The officer gave the plaintiff oral and written notice of the consequences of submitting or not submitting to the test. See ‘Law Enforcement Officer’s Certification,' ¶3 . . . .
“11. The officer requested the plaintiff submit to a breath test. See ‘Law Enforcement Officer’s Certification,’ ¶10 ....
“12. The plaintiff refused to submit to testing. See ‘Law Enforcement Officer’s Certification,’ ¶4 . . . .”
Those facts were addressed in discussing each issue before the administrative hearing officer. Kim argues that the facts alleged were controverted and that he denied them in an affidavit included in his response to KDR’s motion for summary judgment. The affidavit contained the following statements:
“Sung Bae Kim of lawful age, being first duly sworn, states:
“1. That I am a Korean immigrant.
“2. That my primary language is that of my native Korea and I speak very little English.
“3. That it is very difficult for me to communicate in English.
“4. That I know the English alphabet.
“5. That I do not pronounce letters of the alphabet or numbers in English very well.
“6. That due to my inability to communicate well in English, at times my pronunciation is slurred or difficult to understand.
“7. That when I converse with English-speaking individuals I try to do the best I can or do so through a Korean interpreter.
“8. That on December 25,1993,1 had consumed three beers in the course of the evening.
“9. That I successfully completed the tasks requested of me during the field sobriety tests administered by Patrolman Gardner.
“10. That my eyes were red due to the late hour that I was detained by Patrolman Gardner.
“11. That I did not understand any written or oral notices regarding the consequences of submitting or not submitting to the breath test requested by Patrolman Gardner.
“12. That due to my inability to communicate, I could not express my lack of understanding or my wishes effectively to Patrolman Gardner.”
Although Kim’s affidavit explained the facts alleged by KDR, the affidavit failed to controvert the material facts. Because Kim did not properly controvert the material facts, the trial court deemed them to be admitted. On the basis of those admitted facts, the trial court determined that the case was ripe for summary judgment, made its own findings of fact and conclusions of law, and granted summaiy judgment. On appeal, Kim does not challenge the trial court’s findings of fact. “ ‘Trial court determinations of fact, unappealed from, are final and conclusive.’ ” Sullivan, Bodney & Hammond, P.C. v. Bodney, 16 Kan. App. 2d 208, 209, 820 P.2d 1248 (1991).
We conclude that the trial court properly granted the motion for summaiy judgment.
Affirmed. | [
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Gernon, J.:
This is an appeal in a mandamus action by several county offices from a ruling which granted summary judgment to multiple plaintiffs in a consolidated property tax dispute.
The county offices are: the Shawnee County Commissioners, the Shawnee County Clerk, and the Shawnee County Treasurer. These officials will be referred to as Shawnee County in this opinion.
The appellees/cross-appellants include American Home Life Insurance Company; Woodridge Building Partnership; and Richard Sheets, individually. The appellees/cross-appellants will be referred to here as the taxpayers.
The taxpayers also appeal a ruling which denied them attorney fees.
Facts
The taxpayers paid real estate taxes under protest in accordance with K.S.A. 1993 Supp. 79-2005. All the protesters participated in formal hearings and were subsequently advised in writing of the results when the Shawnee County Appraiser (Appraiser) issued a “Notification of Payment Under Protest Results” to each taxpayer with respect to each tax year in question. The notification results recommended a reduction for each parcel for every year involved.
The Appraiser forwarded the results to the Board of Tax Appeals (BOTA) as required by K.S.A. 1993 Supp. 79-2005(a). BOTA received these notices between November 24, 1992, and April 23, 1993.
On or about March 31,1993, BOTA began sending form letters with attached lists of properties to the Appraiser concerning the taxpayers’ protests of taxes. The letter stated in part:
“Attached please find a fist of cases that have been reviewed and the BOTA has determined that there is insufficient justification to allow the proposed reduction in value at this time. Please notify the applicant/taxpayer of the Board’s pending review of additional documentation being requested in support of the county’s recommended value change(s).
“More information is requested in order for the BOTA to properly review these justifications. Please include information used by the county in determining the recommended value change for further review by the BOTA. Send these to the attention of Henry, in care of the BOTA.”
The letter was signed “Board of Tax Appeals.”
BOTA later sent another form letter to the Appraiser in June 1993, which stated in part: “This is a compiled list of all Shawnee County cases requiring additional documentation before being accepted or heard by the Board. They are comprised from lists sent in the previous months. This list does not include cases that are still under Board review or being arranged for hearing.”
K.S.A. 1993 Supp. 79-2005(a) provides that once BOTA receives notification of a proposed reduction in value from the Appraiser, it has 45 days in which it may review the recommendation and schedule a hearing if it decides the property may not be valued according to Kansas law. If BOTA takes no action within 45 days, the results of the formal meeting with the Appraiser become final. As of June 25,1993, none of the taxpayers’ parcels had been scheduled for hearing.
All of the taxpayers, through their legal counsel, subsequently made demand upon the Shawnee County Clerk for a refund of the portion of their taxes paid under protest. Shawnee County refused to issue the refunds.
On August 12,1993, American Home Life Insurance Company, one of the affected taxpayers, filed a petition for mandamus, asking the district court to order Shawnee County to recompute its tax liability using the Appraiser’s new valuation, to order the refund of the overpayment, and to order Shawnee County to correct the official records regarding the new valuation of its property.
Other taxpayers who are part of this appeal subsequently filed mandamus petitions. All suits were consolidated.
The trial court granted the taxpayers’ motion for summary judgment, ruling that K.S.A. 1993 Supp. 79-2005 was intended to expedite appeals and that BOTA’s action here was insufficient to prevent the Appraiser’s reduction from becoming final after 45 days. Shawnee County appeals that ruling.
The taxpayers subsequently filed a motion for attorney fees and interest, which was denied. They appeal that ruling.
K.S.A. 1993 Supp. 79-2005(a)
K.S.A. 1993 Supp. 79-2005(a) sets forth BOTA’s right to review an appraiser’s determination that a change in valuation is required. This statute provides in relevant part:
“When the grounds of such protest is that the valuation or assessment of the property upon which the taxes are levied is illegal or void, the county treasurer shall forward a copy of the written statement of protest to the county appraiser who shall within 15 days of the receipt thereof, schedule a formal meeting with the taxpayer or such taxpayer’s agent or attorney with reference to the property in question. The county appraiser shall review the appraisal of the taxpayer’s property with the taxpayer or such taxpayer’s agent of attorney and may change the valuation of the taxpayer’s property, if in the county appraiser’s opinion a change in the valuation of the taxpayer’s property is required to assure that the taxpayer’s property is valued according to law, and shall, -within 15 business days thereof, notify the taxpayer and the state board of tax appeals, in the event the valuation of the taxpayer’s property is changed, in writing of the results of the formal meeting. The state board of tax appeals may within 45 days after receipt of notification of such change review such change and schedule a hearing thereon upon a finding that the taxpaijer’s property may not be valued according to law. If the state board of tax appeals takes no action within such 45 day period, the results of the formal meeting shall be final. (Emphasis added.)”
Apparently, the district court interpreted subsection (f) of the statute instead of subsection (a). Nevertheless, the language is the same, and the trial court’s ruling is valid.
Summary Judgment/Standard of Review
“Summary judgment is proper where the only question or questions presented are questions of law.” Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993). The present case was submitted to the district court on stipulated facts, leaving only the question of statutory interpretation of K.S.A. 1993 Supp. 79-2005(a) for resolution.
Interpretation of a statute is a question of law. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986); see also In re Tax Protest of Spangles, Inc., 17 Kan. App. 2d 335, 336, 835 P.2d 699, rev. denied 251 Kan. 938 (1992) (where facts are not disputed and decision turns on BOTA’s interpretation of relevant statutes, appellate review is plenary).
Statutory Interpretation
Several rules of statutory construction are applicable to the present case. First, the fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). Ordinary words are to be given their plain meaning, and courts are not justified in disregarding unambiguous meanings. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 245, 834 P.2d 368 (1992). Moreover, “[w]hen a statute is clear and unambiguous, the court must give effect to the legislative intent therein expressed rather than make a determination of what the law should or should not be.” State ex rel. Stephan v. Board of Seward County Comm’rs, 254 Kan. 446, 448, 866 P.2d 1024 (1994). Statutes are to be construed to avoid unreasonable results. Todd v. Kelly, 251 Kan. at 515.
The Kansas Supreme Court has established the following principles in construing tax statutes:
" Tax laws are statutory and do not exist apart from the statute. As such, they must be strictly construed.’ In re Order of Board of Tax Appeals, 236 Kan. 406, Syl. ¶ 5, 691 P.2d 394 (1984), overruled on other grounds In re Application of U.S.D. No. 437 for Tax Relief, 243 Kan. 555, 757 P.2d 314 (1988).
“ Tax statutes will not be extended by implication beyond the clear import of language employed therein, and their operation will not be enlarged so as to include matters not specifically embraced. Where there is reasonable doubt as to the meaning of a taxing act, it will be construed most favorably to the taxpayer.’ Fleming Company v. McDonald, 212 Kan. 11, Syl. ¶ 1, 509 P.2d 1162 (1973); Equitable Life Assurance Society v. Hobbs, 154 Kan. 1, Syl. ¶ 1, 114 P.2d 871 (1941).” Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421, 425, 845 P.2d 57 (1993).
Any reasonable doubt concerning the meaning of K.S.A. 1993 Supp. 79-2005(a) must be construed in favor of the taxpayer, not Shawnee County.
At the same time, BOTA is the paramount lawfully constituted taxing authority in this state. Wirt v. Esrey, 233 Kan. 300, 314, 662 P.2d 1238 (1983). Its interpretation of the manner in which K.S.A. 1993 Supp. 79-2005(a) operates is entitled to some measure of deference by this court.
“The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. This deference is sometimes called the doctrine of operative construction. Further, if there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. If, however, the reviewing court finds that the administrative body’s interpretation is erroneous as a matter of law, the court should take corrective steps. The determination of an administrative body as to questions of law is not conclusive and, while persuasive, is not binding on the courts.” State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991).
BOTA’s interpretation of the relevant language is as follows:
“ ‘K.S.A.'79-2005(f) does not require the Board to issue an order with findings of fact and conclusions of law when setting a justification review for hearing. Rather, K.S.A. 79-2005(f) specifically states that the Board must take some action within the 45 day period. Here, the Board sent a letter to the county indicating that it had submitted insufficient evidence to justify the reduction prior to the expiration of the 45 day period. By taking this action, the Board found the property may not be valued according to law. K.S.A. 79-2005(f) was intended to expedite the appeals procedures and should not [be] construed so strictly as to demand detailed findings of fact as asserted by the taxpayer. Furthermore, the action taken by the Board pursuant to these expedited hearing procedures does not set the value of the subject property and therefore, should not require a formal order. If the Board finds, in its review of the evidence, that the property may not be valued according to law, the Board may place the case onto a hearing track and, in some instances, the Board will merely request additional information from the county in order to obtain approval from the Board and avoid a full blown evidentiary hearing. In summary, the Board did take action within 45 days, and did find that the property may not have been valued according to law.’ In re Protest of Winkler, Edward T. for Taxes Paid for 1992, Shawnee County, Kansas, Docket No. 93-7141-PJR.”
The ultimate issue here is: What is the level of administrative activity required under the statute before us, and the facts of this case, to allow BOTA to retain jurisdiction? Stated another way, was the request for documentation sufficient to “toll” the 45-day requirement?
The district court read die statutory language to mean that any matter under the statute must be set for hearing within 45 days or the Appraiser’s proposed valuation becomes final.
In finding that the second sentence of 79-2005(a) must be read in conjunction with the prior sentence instructing BOTA as to what it may do upon receipt of notification of a change in valuation from the Appraiser, the district court’s decision assumes that the phrase “[i]f the state board of tax appeals takes no action within such 45 day period” really means “[i]f the state board of tax appeals takes no such action within such 45 day period.” A statute should not be read so as to add or subtract from that which is readily found therein. State v. Pray, 5 Kan. App. 2d 173, 174, 613 P.2d 400 (1980).
The first sentence of the provision in question reads: “The state board of tax appeals may within 45 days . . . schedule a hearing.” K.S.A. 1993 Supp. 79-2005(a). We find that the first sentence is directory only and gives BOTA some discretion in deciding how to best proceed in each case. Therefore, K.S.A. 1993 Supp. 79-2005(a) cannot be read to mean that unless BOTA undertakes the optional three-step process within 45 days, all rights of review are extinguished.
This interpretation accepts the administrative reality we find here. To be sure, the BOTA letters are not the height of clarity and ought to recognize and enlarge upon the appeal process, in our view. However, even what.was done here is some “action,” and we must recognize it as such.
In addition, such a notice is a clear indication that BOTA has acted and recognizes the Appraiser’s findings. Also, at some point in time, someone is going to be required to justify and document whatever findings are at issue, and the procedure as found here might lead to a resolution in favor of the taxpayer, avoid the hearing process altogether, and, therefore, save time and expense for all involved.
We conclude that the district court erred in granting the taxpayers’ motion for summary judgment and petitions for mandamus and, therefore, reverse and remand to the district court for further proceedings consistent with our ruling.
Attorney Fees
The taxpayers argue that the district court erred in denying their application for attorney fees because Shawnee County’s actions in refusing to recognize the results of the formal meeting with the Appraiser, correct its records accordingly, and issue the refunds were unreasonable under all of the attendant factual circumstances. The taxpayers argue that the language of K.S.A. 1993 Supp. 79-2005(a) dearly and unambiguously provides that the refunds should have been ordered upon BOTA’s failure to schedule a hearing within 45 days of receipt of the notification of a proposed reduction in value from the Appraiser.
K.S.A. 60-802(c) provides that “[i]f judgment be given for the plaintiff, he or she may also recover such damages as he or she may have sustained by reason of the failure of tire defendant to perform the specified duty, together with costs.” This provision allows the recovery of attorney fees in mandamus actions when the refusal of the public official to perform a duty imposed by law was unreasonable under the facts and circumstances of the case. Halliburton Co. v. Board of Jackson County Comm'rs, 12 Kan. App. 2d 704, 712, 755 P.2d 1344, rev. denied 243 Kan. 778 (1988).
Therefore, the underlying question is whether Shawnee County’s refusal to issue the refunds in the present case was “reasonable under all of the confronting facts and circumstances.” Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 512, 438 P.2d 732 (1968).
The record reflects that after the taxpayers made demand upon Shawnee County for refund of the taxes they had paid under protest, Shawnee County responded by stating that BOTA had instructed it not-to do so. Once the petitions for mandamus were filed, Shawnee County- sought resolution of the matter on-stipulated facts and without undue protraction of the litigation. No appellate court decision had ever interpreted what action BOTA must take within the 45-day time period set forth in K.S.A. 1993 Supp. 79-2005(a) in order to retain its right to review a proposed reduction in value made by the Appraiser.
We conclude that Shawnee County did not act unreasonably in declining to issue the refunds until the matter had been settled by the courts. See Cities Serv. Oil Co. v. Board of County Comm'rs, 224 Kan. 183, 189, 578 P.2d 718 (1978) (attorney fees denied in mandamus action in which taxpayer sought order directing county treasurer to refund taxes paid under protest, since it could not be said that action of defendants in limiting refund to that portion of protested taxes retained by county was unreasonable). Moreover, the present case involves a substantial amount of tax dollars.
The district court did not err in concluding that Shawnee County’s failure to recognize the Appraiser’s proposed reductions a’s final and issue the appropriate refunds was not unreasonable.
Affirmed in part, reversed in part, and remanded. | [
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|
Royse, J.:
This lawsuit arises out of a decision by the City of Wichita to close a portion of. 127th Street East approximately a block north of Kellogg and to close the median on Kellogg at its intersection with 127th Street East. The, plaintiffs, owners of the real estate surrounding the intersection, filed suit to enjoin the City from carrying out its plan. In the alternative, plaintiffs sought an award of money damages against the City for wrongful taking of their property rights. Following a bench trial, the district court issued comprehensive and detailed findings and conclusions and granted judgment to the City. Plaintiffs appeal.
Selected portions of the district court’s findings provide a brief summary of the essential facts:
“8. The City of Wichita, Sedgwick County, and the State of Kansas, are in the process of completing what is commonly known as the Northeast Expressway, a four-lane freeway running from approximately the intersection of 29th Street north and 1-135 to the intersection of Kellogg east of 127th Street: The City had the responsibility for constructing the Expressway from 1-135 and 29th Street to the intersection at 29th and Webb Road. The County had the responsibility for constructing the Expressway from the intersection at Webb Road to its southern terminus at Kellogg. The State has overall responsibility and upon completion of the construction will take jurisdiction of the Expressway and have the responsibility for maintenance, setting speed.limits, etc. ...
“10. The Expressway intersects with Kellogg .at a point less than one-quarter mile east of the intersection at 127th Street East- and Kellogg. There is an off- ramp for traffic traveling south on the Expressway to go westbound onto westbound Kellogg. The ramp has a design speed of 45 miles per hour and a posted speed limit of 45 miles per hour. It is this circumstance that has led to the present lawsuit. . . .
“11. Although the City was not responsible for the intersection of the Expressway and Kellogg, it became apparent during the construction stage that the off-ramp of the Expressway leading directly to the intersection of 127th Street East would present a severe traffic hazard because the acceleration lane leading off the ramp intersected traffic coming south on 127th Street and also posed a danger of weaving between traffic trying to go north on 127th Street from Kellogg and traffic coming from the ramp to go south on 127th Street at an open median at that intersection. ... On January 14,1993, William J. McKinley, P.E., the Traffic Engineer for the City of Wichita, wrote in a memo to Bill Stockwell, Metropolitan Area Planning Department, to the effect that he had reviewed the plans for the interchange of K-96 and Kellogg and recommended that 127th Street East be closed to the north of Kellogg. He also recommended that the median at that intersection be closed as well. . . .
“26. Prior to the closure of 127th Street East north of the Turnpike and closure of the median at the intersection of 127th Street East and Kellogg (hereinafter referred to as the ‘City Action’), the direct access of the property owners to adjacent public roadways was as follows:
A. The Aetna Trust property [northeast of intersection] had total access to 127th Street East and no access to Kellogg.
B. McMaster [northwest of intersection] had total access to 127th Street East and access to a frontage road on the west 639 feet of his property which had access to Kellogg.
C. The Boone property [southwest of intersection; includes Wichita Insulation] had no legal access to Kellogg but complete access to 127th Street East.
D. The Wiedemann property [southeast of intersection] had no legal access to Kellogg but complete access to 127th Street East.
. . . This remained unchanged even after the City Action. . . .
“27. Prior to the City Action, there were twelve different routes of traffic flow through the intersection of 127th Street and Kellogg. After the City Action, there will be only four different routes of travel. Traffic traveling west on Kellogg will not be permitted to turn south onto 127th Street East to reach either Wichita Insulation or Wiedemann Trust properties, nor will the traffic be permitted to turn north on to 127th Street East to reach McMasters’ property or Aetna Trust’s property. Traffic traveling north on 127th Street East, upon reaching the intersection of Kellogg, will not be permitted to turn west on to Kellogg as previously allowed and will not be permitted to continue north on 127th Street East. Traffic traveling south on 127th East will reach a cul-de-sec, thereby prohibiting such traffic from reaching Kellogg as previously allowed. Traffic traveling east on Kellogg, upon reaching 127th East, will not be permitted to turn north on to 127th Street East as previously allowed.”
Plaintiffs’ first argument on appeal is that the district court erred in determining the City’s actions did not constitute a compensable taking. Plaintiffs contend their access to Kellogg and 127th Street East has been severely curtailed because of the City’s actions.
It is well settled iii Kansas that a city may exercise its police powers to limit and regulate traffic. See Hales v. City of Kansas City, 248 Kan. 181, 184, 804 P.2d 347 (1991). A reasonable regulation imposed to protect the public is not a “ 'taking in the constitutional sense because the public use is paramount and public safety is the desideratum.’ ” Hudson v. City of Shawnee, 246 Kan. 395, 403, 790 P.2d 933 (1990) (quoting Ray v. State Highway Commission, 196 Kan. 13, 23, 410 P.2d 278, cert. denied 385 U.S. 820 [1966]). If a regulation is determined to be unreasonable, it then becomes a taking and is compensable. The burden of proof is upon the one asserting unreasonableness. 246 Kan. at 403-04.
Plaintiffs rely on a right of access which vests in the owner of land adjoining a road or highway and which entitles the owner to go and return from his own land to the road or highway without unreasonable interference. Teachers Insurance & Annuity Ass’n of America v. City of Wichita, 221 Kan. 325, Syl. ¶ 6, 559 P.2d 347 (1977). The rights of an abutting owner cannot be taken or materially interfered with without just compensation. McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, Syl. ¶ 4, 524 P.2d 1165 (1974).
The plaintiffs’ reliance on a claim of lost “access” is misplaced. The district court found that their “access” remained unchanged after the City’s action. Plaintiffs have not challenged this finding on appeal. What the plaintiffs are really complaining about is the fact that, once they get to the highway (Kellogg or 127th Street), their routes of travel on the highway are now limited. For example, a person leaving the McMaster property has access to 127th Street but can only go north on that street. Travel to the south has been eliminated by the City’s action. Similarly, a person leaving the Boone property can go north on 127th Street to Kellogg and then travel east. Travel westbound on Kellogg has been restricted by closing the median on Kellogg.
The distinction between “access” and traffic flow is important. See Teachers, 221 Kan. at 335. “[A]n abutting owner has no right to the continuation of a flow of traffic in front of his property. The state’s exercise of its police power in such situations is predominant and controlling.” Brock v. State Highway Commission, 195 Kan. 361, 371, 404 P.2d 934 (1965). For example, the Supreme Court has commented that the regulation of traffic under the police power without liability for payment of compensation “includes, among other things, prohibiting left turns, prescribing one-way traffic, prohibiting access or crossovers between separated traffic lanes, prohibiting or regulating parking, and restricting the speed, weight, size and character of vehicles allowed on certain highways.” Ray v. State Highway Commission, 196 Kan. 13, 17, 410 P.2d 278, cert. denied 385 U.S. 820 (1966) (quoting Smith v. State Highway Commission, 185 Kan. 445, 454, 346 P.2d 259 [1959]); see Eastborough Corporation, Inc. v. City of Eastborough, 201 Kan. 491, 497, 441 P.2d 891 (1968).
The plaintiffs contend this case is virtually identical to Teachers, 221 Kan. 325. Teachers involved the decision by the City of Wichita to convert Kellogg to a fully controlled access facility. Part of the plan involved moving Kellogg 90 feet north of its previous location. The effect of the City’s action was that the plaintiffs lost their direct access to the highway. Instead, long distances had to be traveled from plaintiffs’ properties over “circuitous” and “torturous” routes to gain access to Kellogg. The district court determined that plaintiffs had been denied reasonable access to Kellogg, and the Supreme Court agreed.
While plaintiffs latch on to the phrase “circuitous route” in an attempt to compare this case to Teachers, they ignore the district court’s finding that their direct access to Kellogg and 127th Street is unchanged by the City’s action in this case. That finding distinguishes this case from Teachers. Any circuity of travel faced by the plaintiffs in this case is the same circuity all drivers face when a city lays out one-way streets, creates cul-de-sacs, or closes medians to prevent left turns. Plaintiffs’ reliance on Teachers is misplaced. See Eastborough Corporation, 201 Kan. at 497 (noting the change in traffic pattern applied equally to plaintiffs and the general public); Annot., Abutter’s Access — Traffic Regulation, 73 A.L.R.2d 689; 39 Am. Jur. 2d, Highways, Streets,, and Bridges § 179.
The case most directly on point is Hales v. City of Kansas City, 248 Kan. 181. In Hales, the City of Kansas City installed a raised median that divided the northbound and southbound lanes of Rainbow Boulevard. As a result, northbound traffic on Rainbow Boulevard could no longer turn left into the south parking lot of the Hales’ apartment complex. Similarly, traffic leaving that parking lot could no longer turn left to go north on Rainbow Boulevard. The district court rejected the Hales’ claim that a compensable taking had occurred, and the Supreme Court affirmed:
“As reported in 2A Nichols on Eminent Domain 6.37(4) (rev. 3d ed. 1990), interference with passage along a public way under an exercise of police power by installing a median strip, limiting the mode and type of traffic, and instituting one-way traffic is not a compensable taking. See State ex rel. Moore v. Bastian, 97 Idaho 444, 546 P.2d 399 (1976) (median strip); State v. Cheris, 153 Ind. App. 451, 287 N.E. 2d 777 (1972) (median strip does not constitute a taking of property within the meaning of the law of eminent domain); Barnes v. Highway Commission, 257 N.C. 507, 126 S.E.2d 732 (1962) (median strip); Realty Corp. v. Highway Comm., 15 N.C. App. 704, 190 S.E.2d 677 (1972) (median strip); Brill v. Dept. Transportation, 22 Pa. Commw. 202, 348 A.2d 451 (1975) (median strip); Dept. of Transportation v. Nod’s Inc., 14 Pa. Commw. 192, 321 A.2d 373 (1974) (median strip caused a 4-mile diversion of traffic from one side of the highway). 248 Kan. at 184.
The district court concluded that the City’s action in this case was a reasonable exercise of the police power as the closure of the street and the closure of the median were “justified to achieve driver safety.” The district court did not err in concluding that no compensable taking had been shown.
Plaintiffs contend the district court erred in considering the benefits accruing to plaintiffs from construction of the Northeast Expressway. This contention apparently refers to the following observation by the district court: “Furthermore, it is uncontroverted that the construction of the K-96 Expressway in itself enhanced the value of all properties surrounding 127th Street East and Kel logg.” Plaintiffs complain that this finding is unsupported by the evidence. The record, however, does document traffic flow through the area as a result of the Northeast Expressway. Secondly, plaintiffs assert that the district court had no authority to consider any benefits to their property from the Northeast Expressway. In light of our conclusion that the trial court correctly determined no compensable taking occurred, questions regarding the measurement of market value, before and after, are moot. See Kimberlin v. City of Topeka, 238 Kan. 299, 301, 710 P.2d 682 (1985) (courts do not give opinions upon abstract propositions which cannot affect the matter in issue).
Plaintiffs also argue that it was unnecessary to close the median on Kellogg; they contend a channelized median was a reasonably safe alternative. The mere fact that plaintiffs disagree with the City as to the appropriate measures to assure public safety is insufficient to establish that the action taken by the City was unreasonable. It is not the function of the court to substitute its judgment for that of the City. Eastborough Corporation, 201 Kan. at 495.
Finally, plaintiffs argue that under Dolan v. City of Tigard, 512 U.S. 374, 129 L. Ed. 2d 304, 114 S. Ct. 2309 (1994), the City was required to show a rough proportionality between the benefits conferred by the City’s police power regulations and the burdens imposed on the private property owner. The district court concluded that Dolan is distinguishable, and we agree. First, in Dolan the city conditioned issuance of a permit for store expansion on the owner’s dedication of a part of her property for improvement of a drainage system and construction of a pedestrian/bicycle path. Plaintiffs here have not been required to deed property to the City. Second, in Dolan the Supreme Court emphasized that it was concerned with an adjudicative decision, not with decisions of a legislative nature. 512 U.S. at 385. The City’s acts in this case regulating traffic under its police power fall within the category of legislative decisions. See Eastborough Corporation, 201 Kan. at 494-95 (city regulating streets and traffic is acting as an administrative arm of the legislature). Finally, Dolan requires an examination of the relationship between the conditions imposed by the city and the impact of the owner’s proposed development, not as plaintiffs here mistak enly state, the impact on the development. Plaintiffs’ reliance on Dolan is unavailing.
For all the foregoing reasons, the district court correctly determined that the City’s actions did not constitute a compensable taking.
Plaintiffs’ second argument is that the district court erred by not granting injunctive relief. Plaintiffs acknowledge that generally injunctive relief is not an available remedy against a city exercising its police powers. See Brock, 195 Kan. at 365-66. Plaintiffs attempt to avoid this principle by arguing the City’s action violated an environmental impact statement which is required under federal law. This argument is not persuasive.
First, plaintiffs fail to cite to the record in support of their assertion that the City’s action violated the environmental impact statement. Material statements of fact made without reference to the record are presumed to be without support in the record. Kenyon v. Kansas Power & Light Co., 17 Kan. App. 2d 205, 207, 836 P.2d 1193 (1992). In fact, the district court found just the opposite; it determined the City’s action did not violate the environmental impact statement. Plaintiffs have not appealed from that determination. Second, plaintiffs’ reliance on die environmental impact statement is misplaced, because it dealt exclusively with K-96 and did not proscribe which streets or medians the City could close. Finally, plaintiffs acknowledged at oral argument that they cannot dispute the fact that the City’s action is now complete. Any questions about the district court’s failure to enjoin the city from doing something it has already done are moot.
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Lewis, J.:
Plaintiffs initially filed suit against St. Francis Regional Medical Center (St. Francis), seeking damages for negligence allegedly involved in the birth of their daughter, Angela. St. Francis sought to compare its negligence with the negligence of Dr. Conrado Agustín. Plaintiffs then amended their petition and added Dr. Agustín as a party defendant. St. Francis sought no affirmative relief from Dr. Agustín. The trial court granted summaiy judgment in favor of Dr. Agustín and against plaintiffs. Plaintiffs appeal.
The facts on which plaintiffs’ suit is based are relatively unimportant to our decision. However, highly summarized, Angela suffered brain and lung damage during her delivery. Plaintiffs claim that St. Francis was negligent because it did not have an anesthesiologist or a physician qualified to perform an emergency Cesarean section immediately available when plaintiffs arrived at the hospital. Plaintiffs contend Dr. Agustín was negligent because he allegedly took too long to prepare for surgery once he arrived at the hospital.
Plaintiffs were the only parties seeking recovery from Dr. Agustín. Dr. Agustín filed a motion for summary judgment directed only against plaintiffs. In that motion, Dr. Agustín set forth various uncontroverted statements of fact. Included among those facts was a statement that none of plaintiffs’ experts had stated that in their opinions, Dr. Agustín had deviated from the applicable standard of care and they had, in fact, stated their opinions to the contrary.
If those uncontroverted facts are taken to be true, then plaintiffs had failed to prove a cause of action against Dr. Agustín, and the doctor was entitled to judgment.
Plaintiffs did not respond in any fashion to Dr. Agustin’s motion for summary judgment. They did not controvert his uncontroverted statements of fact. They did nothing. It appears that plaintiffs’ failure to respond to the motion for summary judgment was deliberate.
Despite the fact that plaintiffs did not respond, St. Francis did respond to Dr. Agustin’s summary judgment motion, although it was not directed against St. Francis. St. Francis controverted the facts set forth in Dr. Agustin’s motion. It stated it had “no disagreement with plaintiffs’ dismissing Dr. Agustín from this suit, as long as St. Francis’ right of availing itself of statutory comparative fault principles is preserved.” In other words, St. Francis responded to the motion of Dr. Agustín in order to protect its right to compare fault with him.
The trial court granted Dr. Agustin’s motion for summary judgment against plaintiffs: It further held that the remaining defendant, St. Francis, could continue to compare fault with Dr. Agustín.
At some later point in the litigation, plaintiffs settled their lawsuit against St. Francis. The purpose of this appeal is an attempt to reinstitute their action against Dr. Agustín.
The question presented is relatively simple: When one defendant files a motion for summary judgment directed specifically at a plaintiff and that plaintiff fails to respond to that motion, may the trial court grant summary judgment in favor of that defendant and against that plaintiff even though another party defendant responded to the motion and controverted the facts? We answer that query in the affirmative.
The summary judgment motion filed by Dr. Agustín was directed only to plaintiffs. Under such circumstances, plaintiffs may not fail to respond to this motion and then avoid summary judgment by relying on the response of another party.
K.S.A. 60-256(e) states, in pertinent part: “If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.” In this case, plaintiffs were the adverse party, they did not respond to the motion, and summary judgment was appropriate.
Plaintiffs insist that summary judgment was “not appropriate” in this case because St. Francis controverted the facts set out in Dr. Agustin’s motion for summary judgment. Therefore, plaintiffs argue, there were still material questions of fact to be decided, and the trial court erred in granting summary judgment. We disagree. There may have remained material issues of fact between St. Francis and Dr. Agustín, but no such material issues of fact remained to be determined in the lawsuit between plaintiffs and Dr. Agustín.
A lawsuit is an adversary proceeding. A failure to respond to a motion for summary judgment directed at an adverse party is a very perilous, perhaps fatal, omission on the part of the adverse party. In this case, all of the issues between plaintiffs and Dr. Agustín were disposed of by the summary judgment motion. Whether there remained issues between Dr. Agustín and St. Francis is irrelevant to plaintiffs’ argument on appeal.
In U.S.D. No. 259 v. Sloan, 19 Kan. App. 2d 445, 871 P.2d 861, rev. denied 255 Kan. 1007 (1994), the plaintiff filed a motion for summary judgment. The defendant did not file an answer to the motion to dispute the plaintiff’s list of uncontroverted facts but appealed the trial court’s grant of summary judgment to the defendant. Our court held: “To defeat a properly supported motion for summary judgment, the nonmovant must come forward with specific, material facts showing there is a genuine issue for trial.” (Emphasis added.) 19 Kan. App. 2d at 447.
In this case, the nonmovant (plaintiffs) failed to come forward with specific, material facts showing a genuine issue for trial.
Plaintiffs argue that the trial court was not required to grant summary judgment simply because they failed to respond to the motion for summary judgment. We agree. See Ruebke v. Globe Communications Corp., 241 Kan. 595, 604, 738 P.2d 1246 (1987). The trial court has the discretion to make a decision whether to grant summary judgment when the party opposing the motion fails to respond. We find no abuse of discretion in this case.
We see no need to extend this opinion by citing the numerous court decisions on summary judgment in this state. All of those decisions clearly indicate that if a party wishes to avoid summaiy judgment, he or she must respond to the motion filed against him or her, must controvert the facts set forth, and must come forward with something of evidentiary value to establish a material issue of fact. See, e.g., Glenn v. Fleming, 247 Kan. 296, 305, 799 P.2d 79 (1990). Plaintiffs in this case did not follow the well-known rules set forth by our decisions concerning the importance of opposing a motion for summary judgment.
We hold that by virtue of plaintiffs’ failure to respond to Dr. Agustin’s motion for summary judgment, Dr. Agustin’s uncontroverted facts were properly deemed admitted by the trial court. Once those facts were admitted, plaintiffs had failed to prove a cause of action, and it was appropriate for the trial court to enter summaiy judgment. We further conclude that the trial court did not abuse its discretion in finding there were no genuine issues of material fact between plaintiffs and Dr. Agustín and in granting summary judgment in favor of Dr. Agustín.
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SIEVE, J.:
Darrell L. Murray appeals the district court’s inclusion of three expunged nonperson felony juvenile adjudications in his criminal history to compute his sentence under the Kansas Sen tencing Guidelines Act (KSGA). He also appeals the district court’s refusal to allow him to withdraw his guilty plea.
On August 24,1994, Murray pled guilty to sale of cocaine within 1,000 feet of a school and possession of marijuana with intent to sell. Before entering this plea, Murray read a statement to the court explaining that his lawyer had informed him that the guilty plea could subject him to 83 months’ imprisonment if his criminal history included three or more person felonies or 51 months’ imprisonment if he had one misdemeanor or no criminal record.
At the same hearing but in a separate case with separate counsel, Murray also pled guilty to possession of cocaine with intent to sell. Murray read another statement to the court explaining that his lawyer had informed him that this guilty plea could subject him to 51 months’ imprisonment if his criminal history included three or more person felonies or 16 months’ imprisonment if he had one misdemeanor or no criminal record. The district court informed Murray that because he committed the latter offense while he was on an appearance bond for the former offenses, the sentences for the two cases would run consecutively. At sentencing, the State contended that Murray’s criminal histoiy was “E” because of three nonperson felony juvenile adjudications. Murray objected to such a computation because those juvenile adjudications had been expunged. The State conceded that the adjudications had been expunged but argued that the adjudications nonetheless counted as prior felony convictions under the sentencing guidelines.
Murray informed the district court that he had not expected the expunged adjudications to be included in his criminal history and, if die district court were to include those adjudications in this criminal history, he wanted to withdraw his guilty plea. Murray’s attorney explained that when he advised Murray to plead guilty, he relied, in part, on statements by Murray’s other attorney that Murray had no criminal record. Additionally, the bond investigation had not revealed the expunged juvenile adjudications, and Murray’s attorney lacked access to the KBI file that would have revealed such records. The district court refused to allow Murray to withdraw his plea, overruled Murray’s objection to the State’s criminal histoiy computation, and included the three expunged nonperson felony juvenile adjudications in Murray s criminal history.
The district court sentenced Murray to 59 months’ imprisonment for selling cocaine within 1,000 feet of a school, to be served concurrent with 30 months’ imprisonment for possession of marijuana with intent to sell. The district court sentenced Murray to 30 months’ imprisonment for possession of cocaine with the intent to sell, to be served consecutive to the other two sentences, for a controlling term of 89 months. Murray appeals.
Murray argues that the district court erred in considering the three nonperson felony juvenile adjudications in computing his criminal histoiy because adjudications under the juvenile code do not import criminal actions. Specifically, Murray argues that the juvenile code and the KSGA conflict on this issue and, because statutes must be construed in favor of a criminal defendant, this court should hold that the juvenile code prohibits the use of juvenile adjudications in computing a criminal history under the KSGA. This is an issue of statutory interpretation, which is a question of law. An appellate court’s review of a question of law is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
In State v. LaMunyon, 21 Kan. App. 2d 281, 898 P.2d 1182 (1995), aff’d 259 Kan. 54, 911 P.2d 151 (1996), the court addressed this issue and held that because the legislature specifically provided that juvenile adjudications were to be considered in determining criminal history under the KSGA, it logically follows that the legislature intended the KSGA to be the controlling statute. 21 Kan. App. 2d at 283. Based on LaMunyon, we find that juvenile adjudications can be included in one’s criminal histoiy under the KSGA.
Murray argues that the district court’s use of juvenile adjudications in his criminal histoiy computation violated due process. The LaMunyon court also rejected this argument, reasoning that because depriving a juvenile of liberty under the juvenile code does not violate due process, the use of juvenile adjudications to enhance one’s criminal histoiy under the KSGA does not violate due process. LaMunyon, 21 Kan. App. 2d at 284-85.
Murray argues that the district court’s use of juvenile adjudications in his criminal history violated the constitutional prohibition against ex post facto laws. LaMunyon was a retroactive conversion case, and the court reasoned, in part, that the refusal to convert the defendant’s sentence merely resulted in the defendant serving his original sentence; because the KSGA did not disadvantage the defendant but only denied him the benefit of conversion, the KSGA did not operate ex post facto. 21 Kan. App. 2d at 286. The LaMunyon court also relied on U.S. v. Bucaro, 898 F.2d 368, 371 (3d Cir. 1990), where the court held that the federal sentencing guidelines did not operate ex post facto by including juvenile adjudications in the defendant’s criminal history because the defendant was not being punished for his juvenile conduct and the guidelines were in effect when he committed the crimes for which the sentence was imposed. Here, as in Búcaro, the KSGA did not operate ex post facto regarding Murray’s crimes.
At trial, the issue was not whether juvenile adjudications generally could be included in one’s criminal history but, more specifically, whether expunged juvenile adjudications could be included. On appeal, Murray curiously elected to brief the former more general issue, using die same arguments that the LaMunyon court rejected. Because the trial court addressed the latter more specific issue concerning expunged juvenile adjudications, this court can address this issue on appeal. See R. D. Andersen Constr. Co. v. Kansas Dept. of Human Resources, 7 Kan. App. 2d 453, 456, 643 P.2d 1142, rev. denied 231 Kan. 801 (1982).
Under the KSGA, criminal history is based on several types of prior convictions, including nonperson felony juvenile adjudications. K.S.A. 21-4710(a). K.S.A. 21-4710(d)(2) states that “[a]ll prior adult felony convictions, including expungements, will be considered and scored.” A common rule of statutory construction is that the mention or inclusion of one thing implies the exclusion of another. This rule should be applied to discern legislative intent and should not be employed if it would override or defeat a contrary legislative intention. State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977). Under this rule, the inclusion of expunged adult convictions in criminal history computations in K.S.A. 21- 4710(d)(2) implies the exclusion of expunged juvenile adjudications unless the other provisions of the KSGA show a contrary legislative intent.
K.S.A. 21-4710(d)(4) provides that nonperson misdemeanor juvenile adjudications and some nonperson felony juvenile adjudications will decay and will not be included in the criminal history computation if the crime of conviction was committed after the offender reached the age of 25. Juvenile adjudications which would constitute more severe nonperson felonies and person felonies will not decay. K.S.A. 21-4710(d)(5), (6). The KSGA is silent as to whether expunged juvenile adjudications are included in one’s criminal history. K.S.A. 21-4710(d)(ll) provides: “Except as otherwise provided, all other prior convictions will be considered and scored.”
In State v. Flummerfelt, 235 Kan. 609, 612, 684 P.2d 363 (1984), the court provided instruction for construing criminal statutes:
“In construing statutes . . . [e]ffect must be given, if possible, to the entire act and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. [Citations omitted.] In addition, penal statutes must be strictly construed in favor of persons subjected to their operations, which simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be read to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citations omitted.]”
At first blush, the exclusion of expunged juvenile adjudications from the provisions of K.S.A. 21-4710(d)(2) expressly stating that expunged adult felony convictions are included in criminal history suggests that expunged juvenile adjudications are excluded from one’s criminal history. The ordinary meaning of the language in K.S.A. 21-4710(d)(ll), however, is all inclusive; unless the KSGA expressly provides otherwise, prior convictions, which include nonperson felony juvenile adjudications under K.S.A. 21-4710(a), are included in criminal history. This catchall provision indicates the legislature’s intent to include expunged juvenile adjudications in one’s criminal history unless the limited decay provisions for juvenile adjudications in K.S.A. 21-4710.(d)(4)-(6) require otherwise.
Juvenile adjudications can be subject to decay only after an offender reaches the age of 25. K.S.A. 21-4710(d)(4). Murray was only 23 at the time of sentencing, so his juvenile adjudications had not decayed. Because nonperson felony juvenile adjudications are included in one’s criminal history unless such adjudications have decayed, the district court did not err by including the three expunged juvenile adjudications in Murray’s criminal history.
Murray argues that the district court erred in not allowing him to withdraw his plea because the district court did not inform him of his privilege against self-incrimination and his right to confront his accusers before accepting his plea. His motion to withdraw his plea, however, was based on his claim that he had pled pursuant to false assumptions and mistaken advice from counsel concerning his criminal history. He never raised in district court the issues of the district court’s failure to inform him at the plea hearing of his privilege against self-incrimination and his right to confront his accusers. These issues and these arguments are, therefore, not properly before this court. See State v. Solomon, 257 Kan. 212, 221, 891 P.2d 407 (1995).
Murray argues that the trial court erred in not allowing him to withdraw his guilty plea because his attorney advised him to plead guilty under the false assumption that Murray’s sentence would be computed with no criminal history so that he did not knowingly and voluntarily enter his plea. K.S.A. 22-3210(a) provides that a plea of guilty or nolo contendere may be accepted when:
“(2) in felony cases the court has informed the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1, 1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
“(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.”
Compliance with these provisions is essential to protect a defendant’s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. See State v. Anziana, 17 Kan. App. 2d 570, 571, 840 P.2d 550 (1992).
K.S.A. 22-3210(d) provides:
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
Because Murray moved to withdraw his guilty plea before his sentence was adjudged, the statute instructs us to review this issue under an abuse of discretion standard. Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable so that no reasonable person would take the view adopted by the court. State v. Warden, 257 Kan. 94, 116, 891 P.2d 1074 (1995).
Murray relies on Morrow v. State, 219 Kan. 442, 447, 548 P.2d 727 (1976), where the court reversed a summary dismissal of a K.S.A. 60-1507 petition that alleged the prosecution coerced the defendant to plead guilty to one count by threatening to seek maximum consecutive sentences on four counts where three of the counts would have been lesser offenses. 219 Kan. at 444-45. N.ot only did the law prohibit the State from bringing more than one of those charges against the defendant, the petition also alleged that defense counsel advised the defendant to enter the plea to avoid the possibility of consecutive sentences. 219 Kan. at 445. In reversing dismissal of the petition, the court explained:
“Both the prosecutor and defense counsel have certain obligations in plea bargaining. It is improper for the prosecutor to induce a guilty plea by misrepresentations of the law or by unfulfillable promises. [Citation omitted.] Likewise, the defense counsel is obligated to fully and frankly advise his client as to the range of permissible penalties and the possible choices open to him. [Citation omitted.] Failure to fulfill these obligations can have a significant effect on the voluntariness of an accused’s guilty plea.” 219 Kan. at 445-46.
This rule’s admonition of a prosecutor’s misrepresentation of the law to induce a plea would apply with equal force to a prosecutor’s concealing from defense counsel otherwise unavailable factual information that would significantly affect the defendant’s sentence. See State v. Jackson, 255 Kan. 455, 461, 874 P.2d 1138 (1994) (explaining that facts can sufficiently demonstrate that the denial of a motion to withdraw a guilty plea infringes upon a defendant’s substantial rights). Such concealment could prevent defense counsel from fulfilling his or her obligation to advise the defendant of the penalties the defendant would face by pleading guilty. Under Morrow, even without concealment or misrepresentation by the prosecution, defense counsel’s advice would be insufficient to render a plea knowing and voluntary due to defense counsel’s lack of information relative to the sentence that would result from a guilty plea.
Here, the district court explained what Murray’s sentence could be if he had either .the highest or the lowest criminal histoiy provided on the drug offense grid. Neither the State nor the district court, however, made any reference to the expunged juvenile ad-f judications or any other indication as to what his criminal history might be: If the expunged nonperson felony juvenile adjudications had not been counted in Murray’s criminal histoiy, he would have one prior conviction for an adult nonperson misdemeanor, giving him the lowest criminal histoiy score on the grid. See K.S.A. 21-4709. As indicated at the plea hearing, Murráy’s maximum controlling sentence under such circumstances would have been 67 months — 22 months less than the sentence he received.
Relying on Solomon, 257 Kan. at 225, the State argues that the district court sufficiently apprised Murray of the range of consequences for his guilty pleas so that Murray pled knbwingly and voluntarily. The problem with the State’s position is that the district court’s allocution was completely in the abstract. The district court at no point inquired into, and the State made no indication as to, Murray’s actual criminal history. Although in some circumstances, issues of criminal history computation might be proper issues for determination at sentencing after a plea agreement, the omission of any discussion of the expunged juvenile adjudications at the plea hearing is particularly relevant here because Murray’s attorney lacked knowledge and access to knowledge of the expunged adju.dications. In Solomon, the district court informed the defendant at the plea hearing of its awareness of two prior convictions against the defendant. Additionally, the defendant’s attorney denied the defendant’s allegation that he had led the defendant to believe that the sentence would be in a range lower than the sentence imposed. Here, by contrast, Murray’s lawyer stated that he was, in fact, un aware of the expunged juvenile adjudications when he counseled Murray regarding the plea.
Although the most prudent attorney might have thought to ask Murray about any expunged juvenile adjudications in his past, we know of no other appellate cases dealing with the State using such adjudications in a criminal history. The State’s use of such adjudications in this case appears to be an atypical test of the subtleties of the KSGA.
As previously stated in this opinion, the catchall provision in K.S.A. 21-4710(d)(ll) appears to provide for such a criminal history computation. This subtlety of the KSGA, nonetheless, must be reconciled with the constitutional provisions requiring knowing and voluntary plea agreements. This reconciliation is difficult because expunged juvenile adjudications are not public records and, as here, defense counsel might not be aware of their existence.
Where a court has wide discretion in sentencing, both the prosecution and defendant submit to that discretion when entering a plea agreement. In such circumstances, a guilty plea is not involuntary if the defendant is told of the range of the court’s discretion before entering the plea. See, e.g., Solomon, 257 Kan. at 217. Where the law and the facts specifically dictate or allow a sentencing enhancement, however, die prosecution and the court must share knowledge of such a situation with the defendant in order for the guilty plea to be voluntary. See, e.g, State v. Mackey, 553 S.W.2d 337, 341-42 (Tenn. 1977) (reversing a conviction based on a guilty plea where the defendant entered the plea without being informed that prior convictions evidence inadmissible to prove guilt was admissible to enhance the sentence); White v. Gaffney, 435 F.2d 1241, 1244-45 (10th Cir. 1970) (reversing a Kansas state conviction based on a guilty plea because the prosecution induced the plea through misrepresentation). In order to allow a criminal defense attorney to fulfill his or her obligations to a defendant concerning the consequences of pleading guilty, the defense attorney must have, and thus the prosecutor must share with the defense attorney, knowledge of any expunged juvenile adjudications that will be used in the defendant’s criminal history.
Here, the prosecution either knew about Murray s expunged juvenile adjudications and concealed such information from Murray s attorney until after Murray entered his plea, or discovered such information after the plea hearing. In either case, Murray s plea agreement failed to meet the knowing and voluntary constitutional standard because he entered it without sufficient knowledge of the actual consequences. The trial court abused its discretion by refusing to allow Murray to withdraw his plea and either proceed to trial or reenter the plea with knowledge that the expunged juvenile adjudications would affect his sentence.
Reversed and remanded. | [
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The opinion of the court was delivered by
Mason, J.:
The Wa Keeney Telephone Company, a Kansas corporation created in 1903, was dissolved by the voluntary action of its stockholders November 28, 1919, its property being sold to what is called a common-law company using the same name, composed of five persons who had been directors of the corporation. ThijS action is brought against these persons by the holder of 13 shares of the capital stock of the corporation to recover a part of the value of the plant and of the money on hand at the time of the dissolution, in the proportion his holding bore to the total capital stock. He recovered substantially the amount of his claim and the defendants appeal.
When the stock held by the plaintiff (all but one share of which was originally held by others) was issued the corporation capital was $1,500, divided into 60 shares of $25 each. In March, 1913, an attempt was made to .increase the capital stock from $1,500 to $25,000, calling for the issuance of 940 new shares of $25 each. The plaintiff asserts that this attempted increase was utterly void and of no effect, because no certificate of the public utilities commission was obtained such as is made essential by the statute, and also because aside from that consideration the procedure necessary for an increase of corporate capital was not followed. He contends that he is entitled to 3%o of the amount to be divided among the stockholders. The defendants claim that the evidence showed a valid increase of the capital stock from $1,500 to $25,000 and that the plaintiff's interest is therefore Uiooo instead of 18/eo, and that even if the attempted increase was invalid the amount awarded him is too large.
1. An offer was made by the defendants to prove that a representative of the corporation presented the matter of the increase to a member of the utilities commission and that oral authority therefor was given. The offer was rejected. The statute provides for a written showing to, and the issuance of a certificate by, the commission (Gen. Stat. 1915, § 8353), and the ruling of the trial court appears to have been correct. That need not be passed on, however, for no sworn statement was made at any time as to what could have been proved. (Gen. Stat. 1915, § 7209.) There was testimony that the records of the utilities commission showed neither an application nor a certificate, and no evidence to the contrary was introduced. The effect of an omission to procure from the com-' mission the required certificate must therefore be determined.
The new capital stock issued is claimed by the defendants to have been paid for by turning over to the corporation rural lines built and paid for with their own money by individuals who were managing the business. The statute requires that where a public utility is to issue stocks “wholly for property or services or other consideration than money,” a verified statement shall be filed showing, among other things, “a general description and an estimated value of the property or services for which they are to be issued;” that the commission shall thereupon issue a certificate stating, among other things (if the facts permit) “that the statements contained in such application have been ascertained to be true;” and that “any issue of stocks, certificates, bonds, notes or other evidences of indebtedness not payable within one year, which shall be issued by such public utility or common carrier contrary to the provisions of this act shall be void.” (Gen. Stat. 1915, § 8353.) The clause “not payable within one year” obviously refers to evidences of indebtedness, such as bonds and notes, apd.not to shares of stock. The utilities commission is required to pass upon the sufficiency of the showing made in support of an application to issue stock, and to grant or refuse a certificate accordingly. (Railway Co. v. Utilities Commission, 101 Kan. 557, 562, 563, 167 Pac. 1138.) The investigation of the value of property to be accepted for the issuance of stock in a public service corporation is obviously to prevent its being taken at an excessive valuation, a primary but not necessarily the sole purpose being to avoid watering stock with a view to the justification of unduly high rates. If in the present case rural lines belonging to individuals were turned over to the corporation for stock at a valuation exceeding their real worth, the original stockholders obviously suffered a wrong by having the value of their holdings diminished, which would presumably have been prevented if the statute had been complied with and the property,accepted only at such valuation as the utilities commission could approve. The scope of the statute is, in our judgment, broad enough to give protection to the stockholders who would thus be directly injured by its violation, and they are entitled to invoke its provisions. The defect in the new stock is not merely that it was issued in excess of the corporation’s legal power — without affirmative grant of the right to do so— but that its issuance was in direct violation of a positive prohibition, accompanied by the declaration that stock so issued should be void. In Utilities Co. v. Railway Co., 108 Kan. 285, 195 Pac. 889, a party to a contract, against whom specific performance was sought, contended that it was void because not approved by the utilities commission under section 8364 of the General Statutes of 1915. The majority of the court held that the statute did not apply to the contract involved, but the right of the party to invoke its provisions was not contested by anyone.
2. The defendants offered in evidence copies of reports made by the corporation to the utilities commission in 1917 and 1919 as required by the utilities act. (Gen. Stat. 1915, § 8351; Laws 1917, ch. 254, §1), which contained the answers “1000,” “$25,” and “cash” respectively to tl^p questions “How many shares of stock have been issued?” “What is the par value of each share of stock?” and “State how stock was paid for, that is, in cash, property, service, etc.” The mere fact that reports containing these recitals were filed with the utilities commission would not constitute such an acquiescence by it in the corporation’s increase of capital as to cure the omission to obtain the certificate prescribed by the statute.
3. The defendants claim that the plaintiff and his predecessors in interest were estopped by their conduct from questioning the validity of the new stock: An entry in the record book of the cor-, poration (to which further reference will be hereinafter made) was offered in evidence, reciting that at a stockholders’ meeting held March 24, 1913, a motion for the increase of the stock was carried, the plaintiff voting in favor of it. Nothing in the motion suggested that the new stock was to be issued in exchange for the rural lines, or for anything but cash, and the fact that the plaintiff voted for the increase would not estop him to challenge the validity of stock issued for specific property the valuation of which had not been approved by the utilities commission. The other matters relied upon by the defendants in this connection are not sufficient to compel a finding of estoppel, whether or not they would justify it.
4. The offer to introduce the entry referred to in the preceding paragraph was made by the defendants, and denied on objection of the plaintiff. That ruling is complained of. The plaintiff at the trial objected to its admission upon grounds which his attorney thus stated: “for the reason that the proper foundation has not been laid for their introduction in evidence. I refer particularly that the by-laws provide that notice shall be given that all the stockholders shall be notified of the time and place the stockholders’ meeting shall be called. It is not in evidence, at least on the face of the record, that there has been any compliance with these conditions. I am further calling the court’s attention to where the increase of stock is more than doubled what two-thirds of an increase amounts to; subscribed for at the time the increase was authorized.”
The grounds so stated go rather to the effect than to the competency of the evidence and were not such as to justify its rejection. In this court the plaintiff undertakes to support the ruling by saying in his brief:
“The court sustained an objection to the introduction of pages 35, 36, and 37 of a book labeled ‘Combined Record Book,’ said pages being marked Exhibit ‘D,’ on the ground that no foundation had been laid for the introduction of the said exhibit. Each of the three pages purports to be signed by Mary L. Shideler, Sec.-Treas., and O. W. Shideler, Pres.; but obviously, the whole thing is written and signed by the same hand; the two names as well as the body of the record is all in the same handwriting. The book was produced in court by 0. Bruce Goffe, who first became interested in the telephone company about January, 1917; there was no proof as to where he obtained the book or how he came to be in possession of it; there was no proof as to what if anything was in the book when he first came into possession of it; no proof that said pages 35, 36, and 37 were in the handwriting of anyone who was ever an officer of the company, nor that the book was a corporation record in the year 1913. The proof does not affirmatively show that this whole bqok was not written up after the commencement of this litigation with a view to its use as evidence in this case. And the entire record or purported record pertaining to this so-called increase of capital stock was so thoroughly impeached as a fraudulent and fictitious record that the court was certainly justified in demanding some preliminary proof before admitting the book in evidence.”
A witness identified the book as the “Corporation Record Book” and testified that it was “a record of the meetings and by-laws of the company.” Other entries in it were admitted. We do not think the objection interposed at the trial fairly advised the defendants that a point was intended to be made of the omission to show by whom and when the entries were made. The general objection as to the want of a proper foundation was qualified by the specific application relating to the giving of notice of a meeting. Had the objection now urged been stated at the time, the defendants would have had an opportunity to' meet it which is now denied them.
The statute in terms makes the records of a domestic corporation competent evidence in an action to which the corporation is a party. (Gen. Stat. 1915, § 2160.) This provision is, of course, cumulative and not restrictive. Apart from the statute we think the books of a corporation are admissable to prove its proceedings where the controversy is between stockholders. “The books' and records of a corporation are competent evidence to prove its . corporate acts and proceedings generally.” (22 C. J. 896, 897.) “The minutes of a corporation may be offered in evidence in controversies between members of a corporation.” (Royce v. Insurance Co., 107 Kan. 245, 249, 191 Pac. 581.) See, also, 10 R. C. L. 1168-1170; Note, Ann. Cas, 1917 D 558.
Although we have held that if the plaintiff voted for the stock increase, that would not prevent his attacking the validity of the new stock that was issued, the evidence of what was done at the meeting is an important part of the history of the transaction. Although the stock is invalid as such, its transfer passed to the transferees whatever right the original holder had to look to the corporation or its assets for restoration of what it received from him, and the extent of that right may depend upon the circumstances under which the invalid stock was issued.
5. The plaintiff and most of those whose stock he procured originally held certificates containing statements that the holder of each share was entitled to use a telephone at a cost of not more than 75 cents a month, in lieu of dividends. This arrangement continued until June, 1917, when it was discontinued upon notice from the utilities commission that it amounted to an unlawful discrimination. This circumstance does not, so far as we discover, affect the rights of the parties, with respect to a distribution of the assets. The plaintiff in his brief estimates the saving to the stockholder on account of the cheaper rate while it was in vogue at $1.25 to $1.50 a month.
The whole telephone plant, including the rural lines but not the money on hand, which amounted to $6,076.77, was sold to the defendants in a lump sum for $21,000. The plaintiff’s judgment was for $4,333.33. How it was arrived at is not shown, no special findings having been made or asked for, although the case was peculiarly one in which they would have been of much help to a reviewing court. The plaintiff suggests that the trial court treated the rural lines as no part of the corporate property, and estimated the market value of what the corporation owned, including the $6,076.77, at $20,000, allowing the plaintiff 1sáo of this, or the amount of the judgment — $4,333.33. The plaintiff presents a computation, based on an engineers report made to the corporation in 1920, and filed with the utilities commission, on which he (the plaintiff) figures the value of the corporate property at $20,621.57, made up of these items: cost in 1914, $9,090.50; 60 per cent added for increase, $5,454.30; cash on hand, $6,076.77.
If the judgment were to stand, in return for $25 paid in 1908 for one share of stock, besides haying had the benefit of a reduction in telephone rates for nine years, the plaintiff would receive $334.61, with interest from May 16, 1921, and a like amount upon each of the twelve shares assigned to him. The yield is so disproportionate to the investment as in itself to be a serious challenge of the justice of the decision. The difficulty of the trial judge in reaching a right conclusion was increased by the failure of the defendants to produce evidence upon which a fair adjustment could be made. For the error in the rejection of evidence a new trial will be ordered, the invalidity of the additional stock, however, to be treated as established. We think, moreover, the award to the plaintiff was made upon a wrong theory, although a specific ruling in that regard is prevented because the basis employed is not definitely shown. The rural lines were used in connection with the city plant as one concern. If they were delivered to and accepted by the company in exchange for the invalid stock, and thereafter appropriated by it and used as its own, the former owners making no claim to them, they became substantially a part of the corporate property, notwithstanding the want of legal consideration; and if it shall be found that this took place the defendants, as successors in interest of those who turned the property over to the company, should be compensated by a payment of its value at the time of its delivery, out of the $21,000 for which the whole property was sold, before a distribution of the remainder is made among the stockholders. The failure of those attempting to bring about the increase in the capital stock to comply with the statute sufficiently to make the attempt legally successful was not of such character as to justify denying them or their successors the return of what they actually contributed to the corporation. (See 14 C. J. 501, 502.) The court hás not been asked to set aside the sale of the plant to the defendants on the ground of their having been directors in the corporation, and it is not necessarily void for that reason, for opportunity was given for other bidders. The selling price should therefore be the basis of distribution. If it shall be found that the rural lines did not become the property of the corporation then the $21,000 should be divided in the proportion the value of the corporation property (other than the cash on hand) bears to that of the rural lines, the stockholders as such receiving only the portion corresponding to the value of the corporate property. The cash should be divided between the corporation and the defendants in such proprotion as it shall be ascertained to have been earned by the corporate property on the one hand and the rural lines on the other, as nearly as that matter can be determined, making the division in proportion to the value of the respective properties if no better basis can be found.
The judgment is reversed and the cause is remanded for a new trial.
Buech, J., not sitting. | [
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The opinion of the court was delivered by
Mason, J.;
John A. Hanger brought an action against J. R. Woodward, as the sheriff of Douglas county, asking damages by reason of the defendant, as such officer, having seized and held an automobile belonging to tlie plaintiff, under a claim that it was taken while being used in violation of the prohibitory law. An in structed verdict was returned for the defendant, and the plaintiff appeals.
The material facts, as shown by the undisputed evidence and admissions, may be thus summarized: On November 10, 1919, the defendant, while looking for a stolen automobile, entered the barn of the plaintiff in the south part of Lawrence and found some intoxicating liquor in his car under the back seat — according to the record in the case cited below, four quarts of whisky. He took possession of the liquor and the car, arrested the plaintiff, went to the county attorney’s office and procured a warrant for the arrest of the plaintiff on the charge of having intoxicating liquor in his possession, and a warrant for the seizure of the car as having been used for the transportation of liquor. The plaintiff was convicted, and the conviction was affirmed on appeal. (The State v. Hanger, 108 Kan. 115, 193 Pac. 1052.) On the trial of the question whether the car had been used for the transportation of liquor the court found that it had not been so used and ordered it restored to the owner, the present plaintiff. The state appealed from this decision, and the appeal was dismissed for want of prosecution November 5, 1920. The car was returned to the plaintiff on that day.
The plaintiff contends that the original seizure of the car was wrongful; that the subsequent obtaining of the warrant against it did not render the sheriff’s possession lawful; that if the court should hold to the contrary on the latter proposition, at all events the sheriff had no right to retain the car after the decision by the district court that the charge of its having been used in the transportation of liquor was not sustained; and that the action of the sheriff showed malice, oppression and abuse of process.
1. The trial court held that the sheriff had no right to take the car without a warrant, but after obtaining the warrant his possession became lawful and continued so until the dismissal of the state’s appeal. The plaintiff, upon the announcement of this view, stated that he did not care to take up time in proving damages for the wrongful detention of the car'for the hour or so prior to the obtaining of the warrant, but would test the correctness of the court’s ruling with regard to the defendant’s right to hold the car from that time on. ' The question - of the validity of the original seizure is therefore not before us except as it might affect the legality of the subsequent holding. Assuming for the purposes of the case that the sheriff had no right to take the car without a warrant, this did not prevent his lawfully holding it under the warrant after its issuance. Where a creditor caused the property of his debtor to be seized on Sunday under an order of attachment, and on the next day had an alias order issued and served, it was held that the second levy was not void, but at most only voidable,-and could be challenged only by direct proceedings to set aside the service. (Blair v. Shew, 24 Kan. 280.) In an action brought by the attachment defendant he was allowed to recover exemplary as well as compensatory damages for the levy made on Sunday, on the theory that the seizure was. malicious and in pursuance of a conspiracy to detain the property within the jurisdiction of the court until Monday. The jury also allowed him damages for the detention of the property under the second levy, but the trial court refused to give judgment for him on this part of the verdict. On appeal by both parties the judgment was affirmed, the ruling with respect to the damages disallowed by the district court being based, however, upon extraneous matters not affecting the general question of the right of recovery under the circumstances stated. (Morris v. Shew, 29 Kan. 661.) In Stewart v. Martin, 16 Vt. 397, where a constable who had wrongfully levied upon cattle out of his local jurisdiction, after bringing them into his own township made another levy under the same writ, the second levy was held to be lawful. (See, also, Morrison v. Crawford, 7 Ore. 472.) The plaintiff here has much less basis for claiming damages for the detention of his property after the warrant was issued than the plaintiff in Morris v. Shew had-with respect to the second levy. It is not suggested that if the sheriff had not taken possession of the car at once it would have been spirited out of the jurisdiction of the court before the warrant for its seizure could have been issued and served, and such suggestion could hardly be made in support of the plaintiff’s plea for the enforcement of his legal rights. The service of the warrant was not, as in the case of the writ of attachment, made possible by the prior illegal seizure of the property. The mere moving of the car from the plaintiff’s barn to another part of the city was not essential to the service of the warrant. It could have been served at either place. The invasion of the plaintiff’s rights in the matter was merely technical, justifying no more than nominal damages. The fact that the warrant was issued upon information furnished by the sheriff and upon his complaint, does not affect its validity or force. From the time it was levied the property was in the custody of the law and the sheriff's possession was rightful.
Upon a related question, in the course of a discússion- of liability for false imprisonment, it has been said: “If the arrest was illegal only because made before the issuance of a warrant, the plaintiff can recover damages only for his detention till the time when he was turned over to an officer holding a valid warrant.” (11 R. C. L. 820.) The cases are not unanimous on the subject (Note, 19 Ann. Cas. 971) but we regard that view as the more reasonable.
2. The decision by the district court against the state in the proceeding for the condemnation of the car did not render the sheriff’s possession unlawful, or alter the previous situation in that regard, for the taking of the appeal stayed the execution of the judgment. (Laws 1919, ch. 217, § 5.) '
3. In this state the official prosecuting attorney is, upon grounds of public policy, exempt from liability for malicious prosecution. (Smith v. Parman, 101 Kan. 115, 165 Pac. 663.) In view of the diligence required of sheriffs in the enforcement of the prohibitory law it might well be argued that the same immunity should extend to them. It is not necessary now to go that far. We discover nothing in the evidence to indicate either malice or want of probable cause in the bringing of the proceeding against the automobile, notwithstanding the result of the investigation was to restore it to the plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action on the following promissory note:
“$2,500.00.
Flobence, Kansas, 5/27, 21.
“Three months after date I promise to pay to the order of myself twenty-five hundred and no/100 dollars at the office of-, for value received, negotiable and payable without defalcation or discount and with interest at the rate of 8 per cent per annum until due, and eight per cent after due until paid.
“We, the makers, indorsers, assignors, and sureties, severally waive presentment for payment, demand, protest, or non-payment of this note.
“I or we further agree that should this note be placed in the hands of an attorney for collection after maturity I or we will pay in addition thereto as attorney fees an amount equal to 10 per cent of the balance due.
(Name.) D. F. Urschel.”
. . . [Revenue stamps.]
“On back of note: ‘There are no conditions offsetting this note and any bank, banker, corporation or individual has my permission to purchase the same. D. F. Urschel.’
“T. S. McQueen.”
The plaintiff alleged he purchased the note for a valuable consideration, in due course of business, before its maturity, and that he was the owner and holder of it.
The defendant answered, pleading certain infirmities in the note arising from certain fraudulent conduct of an Associated Mill & Elevator Company for the sale of its stock for notes like the one in suit, and other matters which, so far as necessary, will be noted later in this opinion.
Issues were joined and the cause was tried before a jury. The plaintiff adduced evidence to show his ownership and possession of the note before maturity, and rested. Defendant’s demurrer to the evidence was overruled. Defendant then offered a mass of documents in evidence tending to show the inception and history of a fraudulent undertaking on the part of certain persons who were floating the stock of a trust entitled, “Associated Mill & Elevator Company,” certain pleadings in an insolvency and receivership case involving this company, and a deposition given by its receiver touching its financial affairs and records was likewise offered. This evidence, liberally construed, and disregarding consideration of its challenged competency, may be construed to show that those responsible for putting forth the documents pertaining to the trust had misrepresented the facts concerning its assets and liabilities. The trial court excluded these documents and deposition, and directed a verdict for plaintiff.
Defendant appeals.
The first question of importance to be determined is involved in defendant’s contention that the note sued on is not a negotiable instrument. He argues, first, that the recital that the note is to bear “eight per cent after due until paid” renders the date of payment uncertain, which destroys its negotiability. While the authorities are not uniform on this point (Bracken v. Fidelity Trust Co., 54 L. R. A. 1915 B 1216, and notes), this court has virtually ruled to the contrary. In Parker v. Plymell, 23 Kan. 402, it was held that a promissory note was not rendered nonnegotiable because of a stipulation that it would bear 12 per cent interest after maturity. To the same general effect were Gilmore v. Hirst, 56 Kan. 626, 44 Pac. 603, and Clark v. Skeen, 61 Kan. 526, 60 Pac. 327; and see, also, Crumo v. Bergan, 97 Mich. 293, 37 A. S. R. 345.
Touching the recitals of waiver of presentment, demand and protest, such waivers are quite common in printed forms of promissory notes; they are recognized by the negotiable instruments act itself and have no effect on negotiability. (Gen. Stat. 1915, § 6532, as amended by ch. 244, Laws of 1917, §§ 6609, 6638,’6639.)
(Glaze v. Ferguson, 48 Kan. 157, 159, 29 Pac. 396; Holmes v. Winters, 108 Kan. 227, 194 Pac. 639; Fisher v. Price, 37 Ala. 407; Farmers’ Exch. Bank v. Altura, etc., Co., 129 Cal. 263; State, ex rel. Parks v. Hughes et al., 19 Ind. App. 266; Savings Bank v. Hanna, 124 Iowa, 374; Bank of Morgan City v. Herwig, 121 La. Ann. 514; Parshley v. Heath, 69 Maine, 90; Wolford v. Andrews, 29 Minn. 250; Annville Nat. Bank v. Kettering, 106 Pa. St. 531, 533; Central Bank & Trust Co. v. Hill, [Tex. Civ. App.] 160 S. W. 1097; 8 C. J. 701, 702.)
Touching the stipulation that the note might be placed in the hands of an attorney for collection after maturity and that an attorney’s fee of 10 per cent on the sum due would be paid, this recital is without legal significance. Even a stipulation authorizing a confession of judgment would not impair negotiability. (Laws of 1917, ch. 244.) The right of the holder to place the note in an attorney’s hands for collection is in no wise dependent on this stipulation. This part of the recital neither adds to nor diminishes the holder’s legal rights. And as to the promise to pay an attorney’s fee, that part of the stipulation is wholly void (Gen.' Stat. 1915, § 6475), but such a recital does not destroy the negotiability of a promissory note.
(Seaton v. Scovill, 18 Kan. 433, syl. ¶ 1; Gilmore v. Hirst, 56 Kan. 626, 628, 44 Pac. 603. See, also, note in L. R. A. 1916 B 675, 684, 685; 8 C. J. 148, 150.)
Nor can it be said that the recitals on the back of the note impair its negotiability. The negotiable-instruments act recognizes that indorsers may, as they frequently do, qualify the scope of their indorsements, but the negotiable-instruments act provides that—
“A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed -to be an indorser, unless he clearly indicates by apppopriate words his intention to be bound in some other capacity.” (Gen. Stat. 1915, § 6590.)
(Farnsworth v. Burdick, 94 Kan. 749, 147 Pac. 863; Plow Co. v. Losey, 104 Kan. 400, 179 Pac. 358.)
Now it cannot be said that the recital on the back of this note indicated any intention on the part of the signer to be bound in any other capacity than as indorser, and it is not discernable that the recital had any significance which would add to or detract from the liability of an indorser under ordinary rules of law.' Certainly the indorser’s assurance that there were “no conditions offsetting this note” was not a warning that there was some infirmity in it. It did not destroy the note’s negotiability.
But it is urged that because this was a “myself” note, it is governed by somewhat different principles than those applied to promissory notes where the maker and payee are different persons. The convenience of tradesmen and the wants of the commercial world have necessitated thé use of these “myself” notes. The negotiable-instruments act gives countenance to them and prescribes what is necessary to their completion.
“ . . . Where a note is drawn to the maker’s own order, it is not complete until indorsed by him.” (Gen. Stat. 1915, §6712; see, also, Gen. Stat. 1915, § 6642.)
In 3 R. C. L. 877, 880, it is said:
“But an instrument is not the less a bill of exchange because all the parties to it in the character of drawers, payees and drawees are not different persons. Ordinarily, a bill of exchange has, in the first instance, three parties to it, the drawer, the drawee, and the payee. It is’ not unusual, however, for the drawer to make the bill payable to his own order, and then indorse it and put it into circulation. Indeed, a bill will be valid where there is only one party to it, for a man may draw on himself payable to his own order. And of course a note payable to the order of the maker is negotiable. . . . The practice of issu-' ing such paper has now become very common, and its validity, when indorsed by the maker or drawer, is not questioned.”
(Crane v. Downs, 108 Kan. 599, 196 Pac. 600; Moses v. National Bank of Lawrence Co., 149 U. S. 298, 37 L. Ed. 743; 8 C. J. 176.)
Most of the other matters argued in this case are primarily based on the assumption that this note was nonnegotiable, and since we have seen that such main contention is incorrect, they may readily be disposed of. Once the plaintiff had proved his ownership and acquisition of the note before maturity, his prima facie case was established. And the testimony of Fisher, the plaintiff’s son-in-law, to that effect was competent (Bank v. Robinson, 93 Kan. 464, 144 Pac. 1019), and since it was not shaken by any cross-examination it was sufficient. Moreover, the note being negotiable and properly indorsed, and plaintiff having possession of it, there was a presumption that he was the owner and that he had acquired it for value and in due course and before maturity. (National Bank v. Emmitt, 52 Kan. 603, 35 Pac. 213.) No further burden could be imposed on the holder (Bank v. Myrick, 108 Kan. 191, 193, 194 Pac. 648), until defendant had produced some substantial evidence showing fraud or other infirmity constituting a defense. (Beachy v. Jones, 108 Kan. 236, 241, 195 Pac. 184.)
But it is urged that defendant’s answer was verified, which put the matter of defendant’s indorsement in issue. However, we do not find any denial of the indorsement in the answer. While there was a general denial, its force was rendered nugatory by the other matters pleaded.
(Felix v. Railway Co., 60 Kan. 467, 57 Pac. 128; Elliott v. Hudson, 84 Kan. 7, 113 Pac. 307; Rust v. Rutherford, 95 Kan. 152, 159, 147 Pac. 805.)
After alleging certain false representations on the part of the Associated Mill & Elevator Company and those acting in its behalf, defendant alleged:
“2. That defendant, relying upon such representations, gave ten notes in the sum of $2,500.00 each, one of which is the note in controversy. . . .
“4. Defendant, further answering, states that said note so executed and delivered by him as aforesaid, according to its terms and conditions, is an instrument unknown to the law merchant. . . .
“5. Defendant, further answering, alleges . . . that the memorandum or agreement on back of note is such as to impart actual notice or knowledge of such acts in relation to said note as hereinbefore alleged as to put the plain tiff upon his notice as to the infirmity or defect of said note, and there is no legal indorsement on the part of the defendant to complete contract of note, indorsement or delivery thereof, and no legal indorsement that would carry note free of equities or defenses.”
From these excerpts it is obvious that defendant did not intend to deny his indorsement. He raised no issue of fact about the genuineness of his signature as indorser. He merely swore to his opinion or conclusion that there was no legal indorsement, not that there was no indorsement, nor that-the words “D. F. Urschel” on the back of the note were not his signature.
Defendant complains of the exclusion of the documents and deposition which he offered in evidence. Granting their competency, they did not go far enough to. constitute a defense. Defendant omitted entirely to offer any testimony or other evidence that any false representations of fact were made to him, and produced no evidence that he executed and delivered the note in reliance thereon. When the trial court rejected the documents and deposition, defendant rested. It does appear that defendant took the witness stand, but an objection to the introduction of evidence was sustained. Counsel for defendant then dictated a lengthy statement into the record as to what he proposed to show by the witness. At its conclusion, the following colloquy occurred:
“The Court: Do you desire as a part of this offer to show that the plaintiff was not the owner and holder of this note at the time of the commencement of this action?”
Counsel for Defendant: “Not by this witness. I am going to show that by other witnesses. By other witnesses I expect to show and will make the offer here in regular order, that the plaintiff was not the owner and holder of the note in controversy, in due course. That he had knowledge of the defective title and did not purchase the same in good faith.
“Mr. Rogers: The burden in that instance would rest on the plaintiff to show that he is the owner and holder in due course, should it go that far.”
Counsel for Defendant: “I will let the record stand as I have it.”
The Court: “Refuse’d.”
Neither then nor thereafter, nor in support of the motion for a new trial, was any testimony forthcoming which would tend to establish the defense outlined, in the statement of defendant’s counsel nor as pleaded in his answer. It is familiar law that in such a state of the record there is nothing concerning the exclusion of evidence which this court can review. (State v. Ball, 110 Kan. 428, 432, 433, 204 Pac. 701.) It is entirely proper and good practice for an at torney to apprise the court of,what he hopes or expects-to prove by a witness (Eagon v. Eagon, 60 Kan. 697, 57 Pac. 942), and where the rejected evidence is documentary and is preserved the supreme court can examine it and its formal reoffering in support of the motion for a new trial may be ignored (Bank v. Seaunier, 104 Kan. 7, 8, 178 Pac. 239; Bellport v. Harkins, 107 Kan. 454, 192 Pac. 730); also, where the téstimony of a witness has been introduced or partially introduced and is then excluded, it is unnecessary to reproduce it on the hearing of the motion for a new trial, since the trial court knows what the evidence is and the supreme court can gather its substance (Treiber v. McCormack, 90 Kan. 675, 136 Pac. 268); but the purpose of the statute, (Civ. Code, § 307)—
“Was to prevent the defeated party from seeking a reversal for error in the exclusion of evidence which, had the ruling been in his .favor, he might not have been able to produce.” (Treiber v. McCormack, supra, p. 680.)
In The State v. Ball, supra, it was said:
“The rejection of this tender of evidence cannot be the basis'of error. What the witness would have testified to was never disclosed. It was not produced in evidential form as an affidavit, deposition, nor upon oral examination when the motion for a new trial was presented. The want of this is not supplied by an oral address of counsel to the trial judge, saying: ‘Your honor, we want to show this, that, or the other thing by this witness.’ The statement of counsel as to what he can prove if permitted to do so will not suffice for the evidence itself.” (p. 432.)
In view of the entire absence of any evidence, by affidavit, deposition, or oral testimony, to show what defendant might have proved if he had been permitted to do so, no error can be based thereon (Scott v. King, 96 Kan. 561, 566, and citations, 152 Pac. 653); and as the documentary evidence and deposition which were offered and rejected were insufficient in themselves to constitute a defense, an instructed verdict was proper (Bank v. Myrick, supra); and the result is that the record discloses nothing in the nature of prejudicial error which would justify a disturbance of the judgment. It is therefore affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover on four promissory notes for $200 each, dated -November 9, 1915, alleged to have been executed and delivered by the defendant to the Partin Manufacturing Company and duly sold, indorsed and transferred to the plaintiff before their maturity.
'Defendant’s answer alleged that his signature to the notes was obtained by false and fraudulent representations, that the four notes were printed upon a single sheet of paper without perforation, and this paper also contained a contract which pertained thereto, and that before signing the contract and notes a recital was inserted, viz: “This contract not accepted until approved by myself and my banker, Fred Walker.”
Defendant further alleged that this condition was never fulfilled and that the contract was never accepted, and that the plaintiff was not the real party in interest.
On this joinder of issues, the defendant adduced evidence tending to show that the notes were on one sheet of paper, on which was also a contract relating to an advertising scheme for stimulating the sale of defendant’s merchandise, and which involved the giving of prizes —an automobile, dishes, jewelry and the like. Defendant also pro duced the payee’s correspondence with him, and testified to certain dealings and negotiations with an agent of the payee covering a period of several weeks after the date of the notes in controversy. This evidence established with reasonable clearness that the contract and attached notes were not unequivocally delivered to the payee on the date of their alleged execution, and that their transfer to the plaintiff was a fraud on the defendant.
That evidence being adduced, the burden then shifted to the plaintiff to show that it had received the notes in due course and without notice of any infirmity therein. Plaintiff attempted to shoulder that burden, and the president of the plaintiff corporation, a Chicago concern, testified that he had purchased the notes from the payee, a Tennessee concern, some eight days after the notes were dated and signed, and that he had no notice of any infirmity in them. But it was significantly shown that certain correspondence touching these notes had passed between the plaintiff and the payee after this alleged purchase, and while most of this correspondence was conveniently absent from the plaintiff’s files and not forthcoming at the trial, yet enough of it was produced to show that the plaintiff was taking instructions from the original payee, and that plaintiff’s course of conduct was directed by that party, and that the latter withheld action to recover on these notes until the original payee had exhausted its efforts to induce the defendant to go ahead with the original contract or to enter into a new one. These facts and circumstances tended to prove that the plaintiff did not own the notes as a bona fide holder, and that the action in its name was merely an attempt to cut off such defenses as might be made if brought by the original payee. Mayhap this evidence was not strong, but it certainly went far enough to put the question beyond the power of the trial court todecide in favor of plaintiff as a matter of law, and to make it a jury question; and in response to a special question the jury answered:
“1. Did plaintiff purchase the notes sued upon prior to thair maturity? Answer: No, not purchased at all.”
Judgment was accordingly entered for defendant.
We see no way to disturb this result. The defense of fraud being fully pleaded, the defendant had the right to show the nature of the transaction. He could not produce the original document becaúse it had been mutilated, and part of it was cut up into four separate promissory notes and these were produced at the trial, so that an swers the objection of appellant that the defendant was allowed to testify “to the contents of a written instrument without showing its loss or destruction or that any effort had been made to procure the original.”
The testimony of defendant pertaining to conversations with the agent of the payee after the contract and notes were signed was competent on the question whether that contract was executed and the notes delivered on November 9, 1915, or whether they were to be held in abeyance until the contract was accepted and approved as the defendant alleged.
The general principle of law governing such cases as this is too well understood to justify discussion. When a person is induced by fraud to sign a promissory note and that note turns up in the hands of a third party claiming to own it and seeking to collect on it, the maker may plead and prove that his signature to the note or its delivery was obtained by fraud; and when such showing is made, the burden passes to the plaintiff to show that he became the holder for value, in due course, and without notice of its defects and infirmities. It is also settled law that the determination of such issues of fact is within the province of a jury. (Negotiable Instruments Law, § 66, Gen. Stat. 1915, § 6586; Ireland v. Shore, 91 Kan. 326, 137 Pac. 926; Beachy v. Jones, 108 Kan. 236, 241, 195 Pac. 184; id., 111 Kan. 254, 206 Pac. 895.)
The record discloses no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On August 5, 1914, an arrangement was entered into between Emerson-Brantingham Implement Company and Clarence Wendei for the sale by the former to the latter of a tractor thresher engine, which was at once delivered, the buyer turning in an old engine, paying $500 in cash, and giving two notes for $250 and $750 respectively. The company took a mortgage on the engine securing these notes, and also two notes for the aggregate amount of $1,450 which Wendei had given in part payment for the first engine. On January 11, 1916, the company sold the new engine under its mortgage, crediting $1,453.12, as the net proceeds, upon the notes. On January 10, 1916, Wendei brought this action against the company. On February 9, 1916, he filed an amended petition in which he alleged in effect that the defendant had agreed to furnish him an engine to be run by kerosene, but that the one furnished required the use of gasoline; that he had signed a written contract which described it as a gasoline tractor, but that he did so upon the fraudulent representation that it referred to a machine operated by kerosene, and did not discover the fact in this regard until after the action was begun. The defendant filed an answer relying upon the contract as written, and asking judgment for the balance due upon the notes. On June 2, 1921, the plaintiff filed a second amended petition elaborating the allegations of the first one and in addition setting out some negotiations between the parties after the delivery of the engine. On June 9, 1921, the defendant filed a motion for judgment in its favor upon the entire record' — the pleadings and certain facts said to have been conclusively established in various ways. This motion was overruled, and the defendant appeals..
The ruling complained of is probably in strictness only rendered appealable by regarding it as a demurrer to the second amended petition. However that may be, the principal question presented is whether that pleading states a cause of action.
The defendant asserts that the plaintiff has pleaded upon two entirely different theories and has wholly failed to state a cause of action on either, the petition being so indefinite that it cannot be determined upon which recovery is sought. It invokes the rule that the petition must be framed upon a distinct and definite theory, citing Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619. In that case the petition was attacked by motion as well as by demurrer. Here it was challenged only by a motion for judgment on the entire record, after a partial trial had been had in which evidence was introduced. In that situation its allegations are entitled to the utmost liberality of construction. Moreover, the rule as to presenting the theory of the case is subject to a number of limitations, one of Which is that it “does not require that the plaintiff be entitled to all the relief asked for in the complaint in order to render it sufficient.” (Note, 50 L. R. A., n. s., 12.) Others are that if a good cause of action is stated on one theory the use of words appropriate to another will not change it (Railway Co. v. Hutchings, 78 Kan. 758, 99 Pac. 230); that a plaintiff need not label his action, and if he gives it the wrong label the error is not fatal (Cockrell v. Henderson, 81 Kan. 335, 105 Pac. 443); that if a good cause of action is stated on one theory allegations upon another may be treated as surplusage (Chase v. Railway Co., 70 Kan. 546, 79 Pac. 153); and that “the plaintiff should be given whatever relief the facts entitle him to, even if he has misconceived their legal effect” (Tire Co. v. Kirk, 102 Kan. 418, 420, 170 Pac. 811).
The defendant contends that the second amended petition undertakes to set out one cause of action on the theory that the sale of the machine was induced by fraud, and another on the theory that after the sale was consummated the defendant agreed to make the engine, which was intended to be operated by gasoline, work by the use of kerosene, and that regarded as an action for fraud the pleading is fatally defective in that it does not state that the plaintiff was ignorant of the falsity of the representations made him, or that he believed them or that he relied upon them. We regard the action as one based upon fraud, the allegations regarding the subsequent negotiations being inserted as bearing upon that issue and perhaps as explaining the plaintiff’s conduct. The petition alleges that the plaintiff’s signature to the contract was procured by false statemnets of the defendant’s agent that it was for the purchase of an engine run by kerosene, that the plaintiff wholly relied upon them and that the first knowledge he had of its actual contents was when it was produced in court. Liberally construed we regard these allegations as sufficiently averring that the agent told the plaintiff that the contract described the engine to which it referred as one using kerosene, that he was ignorant of the real fact in that respect, and believed the false statement and relied upon it.
The defendant urges that the action is not for rescission, but for damages, and that the only two items of damage alleged are not maintainable — one for $1,500 for loss of profits because of being speculative, and the other of $100 for freight paid on the engine, because incurred after the discovery of the fraud. The point made as to the recovery of lost profits is good. (35 Cyc. 644; Tire Co. v. Equipment Co., 111 Kan. 719, 726, 208 Pac. 659.) The fraud, however, according to the pleading was not discovered until the written contract was produced in court and the plaintiff learned that it described a gasoline instead of a kerosene engine. The gravamen of the complaint is not that the defendant furnished a defective engine of the kind contemplated but a different kind altogether.
Moreover,.we regard,the petition as fairly stating an action for rescission. It is true it sets up an invalid claim for the loss of profits and describes the action as one brought by the plaintiff “for damages on his agreement for an engine to run by kerosene.” But it also asks a cancellation of the notes, a return of the money paid, and an allowance for the value of the old engine, which relief as well as the recovery of the freight money would be pertinent to rescission. There was no opportunity for the return of the engine, because the defendant had it at the time the fraud was discovered, according to the pleading. Under the liberal interpretation to be indulged for the reasons already indicated the allegations tending to suggest an election to sue for damages in such a way as to bar rescission may be rejected as surplusage and the action regarded as one for the recovery of what the plaintiff had parted with — - the notes, cash payment, the old engine or its value, and freight money — so as to restore the plaintiff to his original condition.
The defendant invokes the statute of limitations as to the second amended petition. We conclude, however, that the first amended petition (which was filed within a few months after the discovery of the alleged fraud) stated a cause of action, which the later pleading merely elaborated, and therefore the plea of the statute is ineffective. (Culp v. Steere, 47 Kan. 746, 28 Pac. 987.)
The defendant suggests that the negotiations pleaded with regard to making alterations of the engine show a condonation of any fraud alleged. But as the fraud according to the pleading had not then been discovered the point is not well taken.
It is contended that the circumstances set out as an excuse for the omission of the plaintiff to read the contract before signing it are insufficient for the purpose. The allegations are that, the contract was presented to him “in the extreme hurry .of the work of threshing and the plaintiff having such work under his control and direction.” Where an actual misrepresentation is made as to the contents of an instrument it may be avoided for the fraud although the signer did not read it and was not .prevented from doing so. (12 R. C. L. 387; 1 Black on Rescission and Cancellation, § 56; Tanton v. Martin, 80 Kan. 22, 101 Pac. 461.)
The contract contains an acknowledgment that the plaintiff had received a copy of it, but as he pleads that he did not read the paper he is not concluded by this as an admission. The chattel mortgage executed by the plaintiff described the engine as a “gasoline tractor.” This tends to show that the plaintiff knew the engine was of that character, but its effect is evidential only — it does not absolutely conclude him nor nullify the effect of his pleading the contrary. The defendant argues that the words “One Reeves 40 Gasoline Tractor” appeared on the face of the contract in such plain characters that the plaintiff could have seen them at a mere glance. This likewise is a matter of evidence.
The considerations already stated make it unnecessary to discuss the effect of matters ouside the pleadings.
The judgment is affirmed. | [
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