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Per Curiam:
This an action to recover damages for personal injuries. The evidence of the plaintiff tended to prove that he had been grievously wounded, his face disfigured, his sight permanently impaired, that he had suffered great pain, lost considerable time from his regular occupation of farming, and incurred expenses to a material amount, by the culpable negligence of one of the defendants, a city marshal, in wrongfully admitting into the jail where the plaintiff was confined several persons armed with various weapons, who thereupon assaulted, wounded and injured the plaintiff. Evidence was offered by the defendants tending to show that these persons were admitted to the jail with the plaintiff’s consent, and that he was the aggressor, but the jury found for the plaintiff, and so the defense failed. Having so found the issues in favor of the plaintiff, it was the duty of the jury to award substantial damages (Miller v. Miller, 81 Kan. 397), but the verdict was for $1 only. The court denied the plaintiff’s motion for a new trial, and rendered judgment upon the verdict agaiiinsit the marshal — a demurrer by the city having been sustained.
That the plaintiff suffered the injuries as stated was not controverted, and it is not claimed that' he was awarded compensation therefor, but it is insisted that the verdict should be treated as a finding for the defendant. This contention is contrary to the views of this court in the Miller case, supra, and for the reasons there stated the judgment is reversed, with directions to grant a new trial of the issues between the plaintiff and defendant Benson. No complaint is made of the ruling upon the demurrer. | [
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The opinion of the court was delivered by
Burch, J.:
As the result of a proceeding in lunacy in the probate court the appellant was adjudged to be insane. On appeal to the district court the same conclusion was reached, and as a result he was ordered sent to the state hospital. In both the probate court and the district court the finding was made by a jury of four,' one of whom was a physician (Laws 1901, ch. 353, § 58, Gen. Stat. 1909, § 8470). On appeal to this court it is urged that the right of trial by jury secured by the constitution (Bill of Rights, § 5) has been violated:
Although the hearing of a case of this kind is ordinarily designated as a trial, it is not so in the sense of the constitution. The proceeding is merely an inquest conducted primarily for the benefit of the person whose mental state is in question, and it bears no resemblance to an action, either civil or criminal. As the court said-in the case of Chavannes v. Priestley, 80 Iowa, 316:
“It is not a case in which he is adjudged at fault, orín default, and for which there is a forfeiture of liberty or property, but only a method by which the public discharges its duty to a citizen. The misfortunes of citizens sometimes place them where, for their care and. preservation, restraints are necessary, and such restraints are even justified at the hands of private persons. They are not in such cases ‘deprived of liberty’ within the meaning of the constitution.” (p. 320.)
On appeal to the district court the nature of the proceeding was not changed. It was still an inquest of lunacy, the same as it had been in the probate court, and the jury provisions of the civil and criminal codes, were not applicable.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The only subject involved in this appeal is that of actual notice of an unrecorded deed, under the act relating to conveyances of real estate, which reads as follows:
“No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.” (Gen. Stat. 1868, ch. 22, § 21, Gen. Stat. 1909, § 1672.)
T. C. Mitchell acquired title to the land in controversy by means of a tax deed, dated October 23, 1899, and recorded October 24, 1899. Mitchell quitclaimed to H. P. Faris on May 1, 1900. This deed was not recorded until October 25, 1904. On February 14, 1903, Mitchell conveyed the land to George Lynn Miller, the deed being recorded March 5, 1903. On July 8, 1904, Miller conveyed to George W. Finnup by ;a warranty deed, which was at once filed for record. In an action of ejectment brought by Faris the trial court held that Finnup was entitled to the land because when he purchased he had no actual notice of the unrecorded deed from Mitchell to Faris. Faris appeals.
Three matters are relied on as affording actual nobice of the appellant’s unrecorded deed. In March, 1900, Mitchell brought suit against a large number of defendants, including the appellant, to quiet his title to a large number of tracts of land, including the one in controversy. On December 6, 1900, this- suit was dismissed as to the appellant. The Mitchell deed to-Miller was somewhat peculiar in form. It remised, released and quitclaimed Mitchell’s interest in the land in controversy and thirty other quarter sections, and then provided as follows,:
“The said parties of the first part, hereby warrant to the -said party of the second part against all conveyances made by the said parties of the first part, to any of said lands to the amount of the purchase price paid for said land.”
When the appellee purchased he knew of no outstanding interest, but he was told by Miller that the title was good except as to one quarter section, which had some little defect which he would have fixed in a few days or in a week or so. The particular quarter section was not specified.
Actual notice may be either express or implied; that is, it may consist of knowledge actually brought personally home, or it may consist of knowledge of facts so informing that a reasonably cautious person would be led by them to the ultimate fact. (Pope v. Nichols, 61 Kan. 230.) No claim of express notice to the appellee is made. Actual notice is implied only when the known facts are sufficiently specific to impose the duty to investigate further, .and when such facts furnish a natural clue to the ultimate fact.
The appellee purchased upon a warranty of full title. Consequently he was not put upon inquiry like one who accepts a quitclaim deed. (Rich v. Downs, 81 Kan. 43.) He could safely rely upon his vendor’s warranty unless the public records disclosed the appellant’s claim or unless cogent facts outside the records, duly brought to his attention, apprised him of it.
Miller’s statement was so utterly indefinite that it directed attention to nothing. It purported to relate to some small matter easily remedied and not to something which went to the very foundation of the title. It opened no path leading to knowledge of any specific defect. Therefore no duty rested upon the appellee, in consequence of the remark, to look beyond the records and the facts suggested by possession. It is not pretended that the appellant ever held possession of the land.
The record of the suit to quiet title afforded no suggestion that the appellant might own the land in controversy. There is nothing to connect his name with any particular tract of the many described in the petition, and the fact of dismissal as to him indicates that he made no claim to any of it, and. so was misjoined, as definitely as it indicates anything.
The appellee was required to take notice of facts appearing upon the face of recorded instruments in his grantor’s chain of title. (Knowles v. Williams, 58 Kan. 221.) The deed from Mitchell to Miller covered many pieces of real estate, aggregating nearly 5000 acres. All of them were in fact conveyed. The collateral contract of warranty contained in the deed did not affect the character of the instrument as a conveyance. Nor did this contract admit that the grantor had made previous conveyances of any of the lands. It merely provided for a return of the consideration for any tract should a previous conveyance of it be produced.
What line of inquiry would such an instrument naturally suggest to a purchaser taking title under a warranty deed ? He would go to the office of the register of deeds to see if any conveyances of his tract had been made. Finding none, he would be assured that it was not involved. He would not be required to find Mitchell and interrogate him. The law casts the duty upon the grantee in a deed to give notice of his right to third persons, and not upon the grantor. Unrecorded deeds are invalid as to subsequent purchasers without information that they have been given, until they are deposited with the- register of deeds for record. Such a purchaser may assume the nonexistence of any instrument which has not been made valid against him in this manner; and before a purchaser taking a warranty deed can be deprived of the benefit of this assumption information that a prior deed is in fact outstanding and unrecorded must be quite definite and specific.
The appellant cites a case in which a deed expressly excepted and reserved from the grant lands which had previously been conveyed. (Adams v. Hopkins, 144 Cal. 19.) The only question determined in respect to that instrument was, however, the scope of the grant. The question of notice was not passed upon, and it was held that the words “previously conveyed” were used in the sense of “previously sold-.”
The judgment of the district court is affirmed.
Mason, J., not sitting. | [
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The opinion of the court was delivered by
Porter, J.:
The defendant appeals from a judgment of conviction under the prohibitory liquor law.
The principal claim of error, and indeed the only one which requires discussion, is that the court had no jurisdiction to try him for the offense charged at the time it did, because the regular term of the court had lapsed or been adjourned and the trial was not held at a regular or special term. The regular term commenced on the first Monday in April, according to section 2420 of the General Statutes of 1909 (Laws 1909, ch. Ill, § 1). This was April 4, 1910. On that day the judge of the district court, the Honorable W. T. Dillon, was absent by reason of sickness. Court convened by order of the sheriff, and C. W. Van de Mark was elected judge pro tem. and took the usual oath of office. Acting as judge pro tem., he adjourned court to April 12. On April 7 Judge Dillon died. On April 12 the sheriff adjourned court until April 13. On April 13 the Honorable John C. Hogin was appointed judge of the district. He qualified on April 14, and on that day opened court and adjourned the same until the 16th, at which time court was again convened and this cause tried.
The statutory provision for the election of judges pro tem. is as follows:
“A judge pro tem. of the district court may be selected in the following cases: First, when the judge shall be sick or absent at the commencement of the term; second, when the judge shall be sick or absent himself during or at the close of any term before alh the cases pending in the court at the commencement of the term shall have been reached for trial; third, when the judge is interested or hag been of counsel in the case or subject matter thereof, or is related to either of the parties, or otherwise disqualified to sit; provided, this act shall not apply to any case now pending. (Laws 1901, ch. 151, § 1, Gen. Stat. 1909, § 2394.) '
“Such selection shall be made by the members of the bar present, and shall be by ballot, under the direction of the judge, or, -in his absence, of the clerk. The parties, or their attorneys, in any case, may select a judge to sit in such case.” (Gen. Stat. 1868, ch. 28, § 5, Gen. Stat. 1909, § 2395.)
The claim is made that Judge Van de Mark was not elected as the regular judge pro tem., because he was elected upon a motion that “the bar proceed to elect-a judge pro tem. for the purpose of considering all matters wherein all parties consent to the trial thereof”; that his election being for certain, special purposes only, he possessed none of the powers of a regular judge pro tem. This contention can not be sustained. He was clearly elected judge pro tem. under the first clause of section 2394, supra: “First, when the judge shall be sick or absent at the commencement of the term.” Section 2397 (Gen. Stat. 1868, ch. 28, §7) of the same statute provides that the judge pro tem. shall take and subscribe the same oath as required to be taken by the regular judge, and that the oath and a minute of the proceedings shall be entered upon the journal of the court. The judge pro tem. in this case took and subscribed to that kind of an oath. Section 2398 declares:
“The judge pro tem. shall have the same power and authority as the regular judge, while holding court, and in respect to cases tried before him, or in which he may have been selected to act.” (Gen. Stat. 1868, ch. 28, § 8.)
The expression “while holding court” limits his authority to act as judge to such time as the court shall be in session. After the court adjourns he no longer possesses the authority of a judge pro tem.
On the day that Judge Van de Mark was elected, and after he had taken and subscribed to the oath as judge pro tem., he adjourned court until the 12th day of April. He had the same authority to adjourn court that the regular district judge would have had, so that, up to this time, there was no lapse of the term. It is contended, however, that the sheriff had no authority to act on the 12th day of April, because his power to adjourn court from day to day is expressly limited to cases where the judge fails to attend at the commencement of the term, and that in order to act at all the sheriff must act within two days from the time the-term was appointed to begin. This contention is sound. Section 744 of the civil code provides:
“If the judge of a court fail to attend at the time and place appointed for holding his court, the sheriff shall have power to adjourn the court from day to day, until the judge attend or a judge pro tem. be selected; but if the judge be not present in his court, nor a judge pro tem. be selected, within two days after the first day of the term, then the court shall stand adjourned for the term.”
It is the manifest purpose to limit the sheriff’s authority to adjourn court to the first two days of the regular term, and he can only act where the judge has failed to attend at the time appointed for the term to begin and where a judge pro tem. has not been selected. (Union Pacific R. Co. v. Hand, 7 Kan. 380.) But we may entirely ignore the action of the sheriff in adjourning the court from day to day and concede that he had no authority to act in the matter. A judge pro tem., regularly chosen under the provisions of the statute, with all the power and authority of the regular district judge, adjourned court from the first day of the term until the 12th day of April. If, when the regular term cornmenced, on April 4, the judge of the court for any reason was not present, the term could only lapse by both the failure to elect a judge pro tern, and the omission of the sheriff to adjourn the court from day to day. After the term of court was regularly commenced and kept alive by the election of a judge pro tem. it continued until there was an adjournment sine die, or until the expiration of the term established by law. The case of Union Pacific R. Co. v. Hand, supra, was one where a verdict was returned and entered on Saturday, the 5th of December, and at the close of the day the court adjourned to Monday, the 7th, but neither on Monday, the 7th, nor Tuesday, the 8th, was there any court held, because the district judge was absent. On both the days last named the court was adjourned by the sheriff because of the absence of the judge, who was detained by a severe storm. It was held that the section authorizing the sheriff to adjourn court from day to day refers only to the beginning of a term, and that his action in adjourning the court afterward was simply a nullity. In the opinion Mr. Chief Justice Kingman, speaking for the court, said:
“Yet we do not think that the term was lost by the adjournment of the court on Saturday till Monday, and its not convening till Wednesday. The term of the court is fixed by law. Having once opened, it so continues till the term expires, or an adjournment sine die is made. The adjournment from day to day does not suspend its functions. After the court has adjourned for the day, it is a common practice for grand juries to continue their sessions, swear witnesses, pursue their investigations, and find bills; and petit juries frequently remain out all night in deliberation, 'and make up their verdicts, while the journal shows that the court has adjourned. Each of these juries is part of the court, performing important functions; and the court is always in session in fact, so that it can protect the juries and enforce proper conduct on their part. ‘For all general purposes the court is considered as in session from the commencement till the close of its term. ’ (Barrett v. The State, 1 Wis. 175.) . . . There is an evident purpose on the part of courts to so construe the law, if possible, as will uphold the sessions of courts actually doing business. (See Womack v. Womack, 17 Tex. 1; Cook v. Skelton, 20 Ill. 107; Jones v. State, 11 Ind. 357.)” (7 Kan. 387, 388.)
In The State v. Bohan, 19 Kan. 28, it was held:
“Where the February term of the district court was continued to the 24th of May next thereafter, and the court did not convene on the said 24th pursuant to adjournment, the court is legally open until it adjourns sine die, or expires by law.” (Syl. ¶ 3.)
Again, in The State v. Palmer, 40 Kan. 474, 478, a judge pro tern, was selected on June 4, 1888, to take charge of a certain, particular case, and the regular judge of the court left the court room and was not present again until June 6. On June 4 the judge pro tern, adjourned the court until June 6. It was held that even after the case placed in his charge was finally disposed of he would still have power to adjourn the court to some other day for the hearing of other cases not disposed of, provided that at the time he acted the regular judge was not present or had not ordered otherwise. It has been frequently held that a court is open from the commencement of the term until its final adjournment sine die or until the expiration of the term established by law. (Palmer v. State, 73 Miss. 780; The People v. The Central City Bank, 53 Barb. [N. Y., Supr. Ct.] 412; People v. Sullivan, 115 N. Y. 185; Jasper et al. v. Schlesinger, 22 Ill. App. 637; Townshend, use of Wyman, et al., v. Chew and Summers, 31 Md. 247; Barrett v. State, 1 Wis. 156; Labadie v. Dean, 47 Tex. 90; In re Dossett, Petitioner, 2 Okla. 369; Schofield v. Horse Springs Cattle Co., 65 Fed. 433; 11 Cyc. 732.)
The recent case of Keys v. Keys, 83 Kan. 92, is not in point. The question there related to the power of the judge pro tem. to act after the death of the regular judge. Here the only question is whether or not the term of court lapsed, the judge pro tem. never having-acted after the death of the regular judge.. The statute fixed the time when the term should begin and end. After a term of court has legally opened the term will continue until the final adjournment of court sine die or until the expiration of the term established by law. The absence of the regular judge did not pervent the-term from beginning, because within the first two days a pro tem. judge was duly elected. There was no adjournment sine die, and nothing to cause the term to lapse until the expiration of the time fixed by the statute. The obvious purpose of the various provisions of the statute which we have quoted is, in the language of the court in Palmer v. State, 78 Miss. 780, “to prevent the inconvenience and mischiefs which flowed from the ancient and unreasonable notion that the absence of the judge for a single day, at any term of court, operated to discontinue all causes undisposed of and' not formally continued to the next term, to discontinue the term, also, and to dissolve the court itself.” (p. 783.)
Complaint is made of certain instructions given and others refused, and it is said that all through the instructions the court assumed that the transactions on the part of the defendant were sales, while the defendant contended that he merely acted as the friendly agent of the purchasers in procuring liquor for them. The instructions given by the court are not all set out in the abstract, and it must be assumed that as a whole they fully covered the law. The defendant can not bring himself within the rule declared in The State v. Turner, 83 Kan. 183, because he offered no testimony of any kind, and what his. particular defense was can only be conjectured from the cross-examination of the state’s witnesses. The evidence of the state made a prima facie case. (The State v. Turner, supra.)
The information substantially followed the language •of the statute, and the motion to quash was properly overruled. (The State v. Sterns, 28 Kan. 154; The State v. Moseli, 49 Kan. 142.) We find no error in the admission of testimony.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by W. E. Feess, C. A. Lambert, P. P. Duffy and C. K. Leinbach, stockholders in the Mechanics’ State Bank, against the Mechanics’ State Bank, Abner Davis, its president, and C. M. Bradway, its cashier, to enjoin the bank and its president and cashier from selling or disposing of any of the assets of the bank or taking them beyond the jurisdiction of the court, and they also asked that a receiver be appointed to take charge of the bank and its assets and perform such other duties as the court might direct. The bank was organized under the laws of Kansas to do a general banking business at Parsons, Kan. It had a capital of $50,000, divided into five hundred shares of the par value of $100 each. Abner Davis, the president, owned three hundred and ninety-four shares and C. M. Bradway owned five shares of the capital stock. Of the complaining parties, Feess owned ten shares, Lambert two and one-half, Duffy two and one-half, Leinbach one, and Mary Allen, afterward made a party, one share. In the petition it was alleged that Davis and Bradway, who owned four-fifths of the stock and controlled the management of the bank, were managing it contrary to the wishes of the directors by allowing customers to overdraw their accounts; by depositing money in a bank in Oklahoma City; by loaning funds to Oklahoma parties and refusing to make loans to parties in Parsons; also in not having the required number of qualified directors; in not conforming to the requirements of the bank commissioner ; and, further, that they were about to dispose of the assets of the bank in a way that would render the .stock of the minority stockholders worthless. On October 28, 1910, the court, without notice to the defendants, granted a temporary injunction as prayed for, upon the giving of a 2000-dollar bond, and at the same time appointed a receiver, not only to take charge of the assets, but also to wind up the affairs of the bank. A bond in the sum of $100,000 was first required from the receiver. As soon as the depositors learned of the order of the court a run was made on the bank,.and all depositors who presented themselves and asked for their money were paid in full. Before the receiver qualified the run had been made and a large part of the cash in the bank drawn out, and the receiver’s bond was then reduced to $50,000. After the receiver took possession he represented to the court that the bank still had $11,150 cash on hand and 'that the depositors had all been paid, except a group of oil companies, all under one control, whose deposits amounted to $11,750, some of which had overdrawn their accounts, and that if a balance were struck the oil companies would be owing the bank $79.65. An application was therefore made to withhold payment of these deposits until the right of the bank to set off the overdrafts against them was determined, and this was granted. On November 3, 1910, the defendants moved for an increase of the injunction bond, alleging that there was no ground for the action; that it incited a run and wrecked the bank and that it had already caused a damage of more than $20,000, but the motion was denied. On the same day the defendants asked for the removal of the receiver appointed by the court, reciting that he had previously acted in bad faith with the bank; had arranged to purchase twenty-five shares of stock with the understanding that he would be elected as a director of the bank ; that he borrowed money and gave his note to the bank for the ostensible purpose of paying for the stock which he had agreed to buy but that he did not take or pay for the stock, and, although he did not qualify as a director; he had acted with the board and had voted with others to approve the loan of $2500 to himself; that he had conspired with plaintiffs, who only represented twenty-two shares of stock, to wreck the bank, and that with them he had endeavored to compel de-. fendants, who represented four hundred and sixty-four shares of stock, to sell their stock or buy plaintiffs’ stock. It was also alleged that, aside from the unpaid loan, he had previously overdrawn his account and had failed to make it good; that he had procured the making of a loan of $750 to parties, upon his guaranty, and when they defaulted he had refused to make good his guaranty; that a coal company, of which he was president, had overdrawn its account with the bank and he had failed to pay the overdrafts; that while acting as director he had undertaken to obtain a loan of $10,000 from the bank for a relative, to be invested in a newspaper enterprise, and when it wás declined he became incensed and entered into the conspiracy mentioned; that he acted with plaintiffs in causing this action to .be brought in order that he might be appointed as receiver and thus obtain control of the bank, and that by his fraudulent actions, his known hostility to defendants and lack of familiarity with the banking business he was an unfit person to have charge of the bank, and "they therefore asked his removal. In that connection they asked that some other person be appointed in his stead. The motion was denied. Afterward the defendants answered alleging that plaintiffs only owned three one-hundredths of the stock of the bank; that there were five qualified directors, all of whom were residents of Labette county, Kansas, except Davis, and that one of them was plaintiff Feess; that plaintiffs Lambert and Leinbach were elected in January, 1910, but they never qualified as directors although they subsequently acted in that capacity. They specifically denied the charges of misconduct and mismanagement made against them. They further alleged that the bánk had at all times been solvent; that its funds had been loaned on good security and that their purpose had been to make it a profitable institution and its stock a desirable investment, and it was also averred that Davis had offered plaintiffs $135 per share for the stock held by them. They asked to have the injunction ■dissolved and the receiver discharged.
The trial court made forty-six special findings of fact holding most if not all of plaintiffs’ allegations to be true. The findings were to the effect that funds, of the bank had been deposited in a bank in Oklahoma City, of which Davis was an officer, without consent of the directors or of the bank commissioner; that the ■president and cashier,“contrary to the wishes of the •directors, had refused to make a loan of $7500 to persons in Parsons to buy a newspaper; that certain city warrants drawing 6 per cent interest had been sold when other surplus funds of the bank were earning a less rate of interest; that patrons of the bank were permitted to overdraw their accounts; that loans had been made upon insufficient security and without authority of the board; that they had refused to sell a controlling interest in the bank after agreeing to do so; that certain papers were discounted without authority ; that the president had tried to find a purchaser of the assets of the bank and had contemplated a liquidation; also a consolidation of it with another bank, and had taken steps to that end, and that plaintiffs were compelled to resort to this action for relief for the reason that it would have been useless and vain to have appealed to defendants or the board. It was found, too, that the assets of the bank, on October 28, 1910, were insufficient to pay its liabilities. On these findings of fact the trial court drew three legal conclusions: (1) That the bank was not conducted in accordance with the laws of the state; (2) that the hank was insolvent; and (3) that the injunction should be made perpetual and the receiver should wind up the affairs of the bank. The defendants appeal, and earnestly insist that there was no ground for injunction; that there was no authority or justification for appointing a receiver; that many of the findings are not supported by the evidence; and that numerous trial errors were committed. There is also complaint of the ruling directing the receiver to pay plaintiffs’ attorneys $1000 out of the funds of the bank.
The defendants have reason to complain of the rulings and judgment rendered by the trial court. The hank was a going concern, doing a fairly good business, it being alleged in the petition that the bank had money and property sufficient to pay all its depositors and also to pay each shareholder not less than 110 per cent of the face value of his capital stock. The court, upon ex parte application and without notice to the defendants, not only issued an injunction but appointed a receiver, and thus summarily wrested the property and business of the bank from its officers and owners. This was done because of dissensions among the stockholders and directors as to the proper method of conducting the business of the bank and where the complaining parties only owned seventeen of-the five hundred shares of the capital stock. It is only in cases of the greatest emergency that courts are warranted in tying up business or property by injunction or by appointing a receiver to take propefty from- the control of the owners without notice to the opposing parties. There are greater reasons for refusing to appoint a receiver upon an ex parte application than for granting an injunction without notice, and as to the latter this court has said that “a court or judge should never grant a temporary injunction in an action involving large pecuniary interests, or other important matters, without notice, where the. party to be affected thereby can be readily notified, except in case of extreme emergency. The hasty and improvident granting of temporary injunctions without notice is not in accordance with a fair and orderly administration of justice.” (A. T. & S. F. Rld. Co. v. Fletcher, 35 Kan. 236, syl. ¶ 7.) There was no reason why the bank and its officers might not have been easily notified, and there was no such emergency or immediate danger to the interests of plaintiffs as to justify the court in taking such summary and drastic action. (French v. Gifford, 30 Iowa, 148; 34 Cyc. 117; High, Receiv., 4th ed., pp. 128, 130.) In this instance the appointment that was made would not have been justified even if notice had been given. The court here not only placed the possession of the assets and business of the bank in a receiver, for which there appears to have been no real necessity, but it ordered him to wind up its affairs and thus practically ended its corporate existence. This was done, not at the instance of the state through its attorney-general or bank commissioner, but at the suit of minority stockholders. The court was without authority to make the order, and indeed there was no application for such an order in the petition on which the order was granted. There is nothing in the statute which authorizes a court ■of equity to dissolve a corporation, or wind up its .affairs, at the instance of a minority stockholder, and in the absence of express statutory authority it can not be done. For certain reasons and by certain methods the bank commissioner is authorized to have a receiver appointed and to wind up the affairs and business of a bank. (Laws 1908, ch. 14, § 1, Gen. Stat. 1909, § 487.) A corporation may be dissolved, its franchise taken away, its affairs wound up and its property distributed in an action brought by the state through its proper officer, but a court of equity can not interpose its authority to forfeit the franchise of a corporation, wind up its affairs or otherwise end its ■corporate existence at the instance of a stockholder.
The supreme court of Iowa has held that “in the absence of express statutory authority, jurisdiction of courts of equity does not exist over corporate bodies to such an extent as to justify them in dissolving corporations, or of winding up their affairs and sequestrating their property.” (Wallace v. Publishing Co., 101 Iowa, 313, 322.) The same view was taken in Folger v. Columbian Insurance Company & trustees, 99 Mass. 267, where it was held to be well established that a court of equity has no power, at the suit of an individual, to decree the dissolution of a domestic corporation and wind up its affairs unless such power has been conferred upon it by the terms of some statute. At common law no such power was vested in courts of equity to be exercised at the suit of an individual. Other authorities to the same point are: Mason et al. v. Supreme Court of the Equitable League, 77 Md. 483; French Bank Case, 53 Cal. 495; Supreme Sitting of the Order of the Iron Hall v. Baker et al., 134 Ind. 293; Texas Consol. Compress & Manufacturing Ass’n. v. Storrow, 92 Fed. 5; Strong v. McCagg, imp., 55 Wis. 624; Pond v. Framingham & Lowell Railroad, 130 Mass. 194; 10 Cyc. 1305, 1307; 4 Thomp. Corp. §§ 4539, 4540, 4553; and Beach, Receiv. § 403.
There was error in the order directing the winding up of the affairs and existence of the bank. Neither were there any good reasons for appointing a receiver to temporarily take control of the assets and business of the bank. There were other adequate remedies to correct any mismanagement of the business and to protect plaintiffs against the alleged misconduct of the bank officers. A receivership may be created upon the application of a stockholder where it is absolutely necessary.
It was held in In re Lewis, Petitioner, 52 Kan. 660, that under the code a receiver may be appointed at the suit of a stockholder “where the business and affairs of a corporation have been so mismanaged that it has become insolvent, and where it is made to appear that all the officers and directors of the same have conspired together to divert its business to another company, dissipate its funds, and fraudulently absorb and apply its assets to the individual benefit of such officers.” (Syl. ¶ 1.) Conduct and conditions less serious than those enumerated would justify the appointment of a receiver, but it is a power that should be sparingly and cautiously exercised. It is a last-resort provision and is only to be employed' where there is a pressing necessity and no other adequate remedy is afforded. It should not be used where it is likely to do irreparable injury to the rights and interests of others, nor where greater injury will probably result from the appointment than if none was made. Caution is especially necessary in case of a bank, which depends so much on public confidence and credit, and is so susceptible to injury from an imputation of mismanagement, dishonesty or weakness. Even a rumor of weakness or wrongdoing, however unfounded, may start a run and bring discredit and ruin to a solvent bank; but where a court summarily orders a receiver to take charge of its assets and business, it necessarily impairs public confidence and paralyzes its business. In this instance it started a disastrous run' which, to a great extent, operated to destroy instead of preserve the assets and business of the bank. In fact it put an end to its business life and sacrificed the interests of all the owners of stock, including the complaining parties who owned less than four per cent of the investment. Although a contrary finding was made, the bank, in our opinion, was a solvent, going concern, and upon plaintiffs’ own statement its stock was worth a premium when the action was begun. The bank seemed to be well prepared to stand the run started.by the unwarranted action. All depositors who presented their demands were paid in cash, and the record does not, in our opinion, sustain the finding of insolvency.- There were disagreements in the board as to methods of business and the policy which should be pursued, but the derelictions complained of were such as might have been easily corrected through the action of the bank commissioner, or, at most, by an order of injunction.
It may have been that too much of the funds of the bank were kept or invested in Oklahoma City, as was alleged, and that a better plan would have been to have made more loans to parties in the vicinity of Parsons. That seems to have been the view of the bank commissioner at one time, but after the matter was brought to his attention that officer permitted the bank to carry-on the business in the same way for about six months, and until the beginning of this action, without directing a change of methods. It may be assumed that if the bank commissioner had thought the policy pursued imperiled the safety or success of the business an order of discontinuance would have been made. If it was contrary to good banking, or to established rules, there was abundant authority in the bank commissioner to stop the practice, and if the of fleers did not follow his directions he had the power to remove them.
A ground of dissension on the board was the refusal of the cashier to make a loan of $7500 to parties to invest in a newspaper enterprise. It is claimed, and the court found, that the directors approved the loan, but .four of the seven directors testified that it was not approved. The president stated that he-advised against it because, as he thought, it would result in the bank acquiring the newspaper and that he had never known such enterprises to pay out. Three of the directors favored it, but in view of all the testimony it can not be said that the officers of the bank acted fraudulently or against the best interests of the bank in declining so large a loan on the security offered. If a majority of the directors, who controlled the bank and the business, had insisted on the loan it could have been made over the objection of the president and cashier, and if the cashier had not carried out their direction he could have been deposed, either through the action of the board or the bank commissioner. (Laws 1909, ch. 59, § 4, Gen. Stat. 1909, § 518.) In either event the refusal gave no ground for the extraordinary action of appointing a receiver. Complaint is made that some loans were refused to other parties, but they are not entitled to serious consideration. It does not appear that fraud 'was committed or that loss resulted to the bank by reason of the refusal of any of the loans.
The action of the cashier in disposing of certain city warrants amounting to $1300, which drew interest at six per cent, and were past due, without the authority or consent of the board, is a subject of complaint. The cashier is vested with considerable discretion in making collections and in realizing on overdue paper. The president advised the cashier to dispose of the warrants' as they were of uncertain value and only had a market value when .a buyer was found, and the cashier stated that the money derived from the sale was loaned to persons in the vicinity of the bank. Even if the sale was unwise it afforded no ground for injunction or the appointment of a receiver.
It was charged and found that quite a number of the customers of the bank had overdrawn their accounts. The amount in each case was not large, and altogether amounted to about $2000 when the action was begun. There is reason to criticize the action of the cashier in permitting so many customers to overdraw, but what the financial condition of those who overdrew was, or whether there was much risk of loss from them, was not disclosed. It is well known that depositors sometimes unintentionally overdraw, where their financial standing is such that a cashier would not be justified in turning down their checks. Then again, an overdraft, for which provision had previously been made by one with ample means, would not be subject to much criticism if the banker acted in good faith. It does not appear that the bank was in great danger of loss from this source, and in any event it was something which the directors might have cured. The amounts of the overdrafts might have been collected from the officers who paid out the money, as the statute provides that they shall be personally liable for the moneys so paid. (Laws 1897, ch. 47, § 39, Gen. Stat. 1909, § 498.)
Much is said about loans to parties in Oklahoma but the greater part of these had been paid before the action was begun. The policy pursued in respect to loans and discounts seems to have been satisfactory to a majority of the directors and to those owning the controlling interest and more than nine-tenths of the capital stock. Those owning the majority of the stock claimed the right to control the management and policy of the bank, and a number of the matters of which complaint is made grew out of the differences of opinion in respect to what was the better policy. The law gives the majority of the stockholders the right to control the policy and business of a corporation and the minority must submit to their decisions when the majority act in good faith and within their powers.
It has been said that “the very foundation principle of a corporation is that the majority of its stockholders have the right to manage its affairs, so long as they keep within their charter rights. No principle of law is more firmly fixed in .our jurisprudence than the one which declares that the courts will not interfere in matters involving merely the judgment of the majority in exercising control over corporate affairs.” (Bartow Lumber Co. v. Enwright, 131 Ga. 329, 333; see, also, 10 Cyc. 969.) The business course of the bank appears to have been satisfactory to all the stockholders, except to those owning less than four per cent of the stock.
There was complaint, too, that three of the directors were not properly qualified. Whether any of them were holding over is not disclosed by the record. It is found that Lambert and Leinbach, who did not qualify, met with the board and tdok part in the proceedings as de facto officers without protest or question by anyone. Madden was chosen to succeed Leinbach and he, too, acted without regularly qualifying, although he had not yet paid for the stock which he had arranged to purchase. There was irregularity in proceeding with the business of the bank when all the elected directors had not been duly qualified, but it appears that two .of those not qualified are now attacking the bank because of this delinquency. The omission could have been remedied without taking the bank and its assets from the control of its owners.
It was charged, and the court found, that Davis, the president, at one time agreed that he would sell a part of his stock to local parties — enough to give them a controlling interest in the bank — and that he had refused to carry out the agreement, but his' failure to sell his stock is no basis for the kind of action that was brought.
There is a claim, and some testimony, that Davis had made an effort to sell the assets of the bank, and. that he had given notice of a stockholders’ meeting, to be held on October 28, 1910, and that his purpose was either to sell the assets of the bank or liquidate the same through a bank at Kansas City, and the court, found that this would have been done if it had not been prevented by the granting of the injunction. Just what action was proposed to be taken at the meeting can not be definitely determined, for no notice of the purpose was stated and the meeting was not held. Davis denied that he had any intention of selling the assets or of making any disposition of his interests in the bank that would have been injurious to the minority stockholders. Some proof was offered, that was credited by the trial court, to the effect that Davis was negotiating a sale of the assets of the bank in a way that might have injured the bank and resulted to the detriment of the minority stockholders. For that reason it can not be said that there was no ground for enjoining the sale of the assets of the bank or the taking of the same out of the state.
On a consideration of all the facts in the case it is clear that there was no necessity for the appointing of a receiver and the wresting of the bank and its management from the owners. The irregularities arid misconduct, which have been referred to, were not so culpable and did not so jeopardize the bank and the rights of the stockholders as to warrant a receiver and the practical destruction of the business. It is argued that, defendants are not entitled to challenge the appointment of a receiver because when, they asked for the removal of the one appointed, on the ground of interest and unfitness, they suggested that another be appointed in his stead. It is clear from the record that defendants were not consenting to a receivership. They had no opportunity to object when the appointment was made, and on the motion for additional security they alleged that there was no ground for the action that was brought, and that when an opportunity was given they intended to make a showing to that effect. When the motion was made to remove Madden as receiver, because of interest and unfitness, the run had been made and the injury done to the bank. It was probably so hurt at that time that it was unable to stand alone while the right to a receivership was being tried. The suggestion of defendants was no more than that some disinterested person should hold what remained of the assets until the question of injunction and receivership should be determined. In their answer they alleged that there were no grounds for injunction or a receivership, and they asked that the injunction be dissolved and the receiver discharged. They objected to the introduction of any testimony upon the same grounds, and at the end of the testimony a like motion was made and overruled. Throughout the controversy the defendants were challenging the right to appoint a receiver, and it would be a harsh rule to hold that they had estopped themselves to contest the question ■because they suggested that some one else than an interested person should hold possession of the bank while the right to a receiver was being tested.. Neither this, nor the stipulation as to the payment of certain depositors or as to the disposition of certain property belonging to the bank, prevents a review of the rulings on the main questions which divide the parties.
It being determined that no grounds existed which justified the appointment of a receiver, it must be held that there was error in ordering the payment of $1000 out of the assets of the bank as a fee to plaintiffs’ attorneys. The action, instead of inuring to the benefit of the bank, operated to diminish, if not entirely destroy, its business. No property was recovered or funds restored through the action of plaintiffs. Under no principle of equity are these parties entitled to have ■their attorneys paid out of the assets of the corporation.
The judgment is reversed and the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action F. J. Feight sought to recover damages from O. L. Thisler for the breach of a contract. It was alleged that Thisler sold Feight a jack for $700, of which Feight paid $100 cash and gave his note for the sum of $600, payable in one year thereafter, and that Thisler warranted the jack to be sound and a fifty-per-cent foal getter. It was stipulated that “in case said jack does not prove to be a fifty-per-cent breeder I agree that he may be returned to my stables, if as sound as when he leaves my barn, and exchanged for another jack of equal value. The above and foregoing agreement shall be construed as a special warranty, and as embracing in its terms the full extent of my liability, in. case of' breach thereof.”
■ It was alleged that the jack was not up to the specified standard and that he did not perform the service for which he was purchased. It was further averred that when Thisler was informed of the indisposition and incapacity of the jack he sent Feight certain tablets to be given to the jack, and that when these were administered they made the jack very sick and he remained in bad condition for more than a year, and for that reason he could not be returned to Thisler in accordance with the conditions of the warranty. It was also alleged that’ Thisler had transferred the 600-dollar note to C. C. Wyandt, before it was due, in- order to avoid the defenses which Feight had against the note; that it was not a bona fide transfer; that Wyandt had sued Feight upon the note in another county, where a judgment against Feight was recovered, and that he had been compelled to employ attorneys in order to make the defense which he had against the note and to establish an illegal transfer. It appears that the judgment obtained by Wyandt was reversed upon appeal to this court. (Feight v. Wyandt, 79 Kan. 309.) For the expenses incurred and the damages sustained Feight asked judgment in the sum of $1137.
The answer of Thisler was that there had been an amicable settlement of the dispute between the parties, and that he was still ready to carry it out. In the answer he further stated that he “now offers to pay to said plaintiff the said sum of $100 and to deliver to said plaintiff said promissory notes of $600 and $100, respectively, or their equivalent in money, if said plaintiff will carry out his said agreement to return and deliver said jack to said defendant in as good condition as he was at the time said agreement to return him was made.” •
Feight replied, denying generally the averments of the answer and also that a settlement had been made. Trial was had on the issues joined, which resulted in a verdict in favor of Thisler, but the court, on motion, set the verdict aside and granted a new trial. Feight’ thereupon filed an acceptance of the tender made in Thisler’s answer, and the case was continued for hearing upon the acceptance of the offer and for final adjustment. When, this hearing came on both parties offered testimony on the question involved, upon which the court found that the jack was in as good condition as When the agreement and tender were made and that Feight was entitled to judgment on the pleadings, offer and acceptance. Judgment was therefore rendered against Thisler for $930.75, but it was further adjudged that he-might pay $828.25 of the judgment by returning to Feight the notes for $600 and $100 mentioned in the answer. Thisler appeals.
It is contended that appellee was bound by the terms of the warranty, and that as he did not return the jack in accordance with the conditions of the warranty he is not entitled to claim' damages. The appellant therefore insists that the court erred in receiving any evidence, in refusing to sustain the demurrer to the evidence, and in granting a new trial. That the jack did not come up to the warranty of soundness and of fitness for service is not contested, and according to all the testimony he was of little, if any, value. It is argued, however, that the failure to return the jack precludes a recovery of damages for the acknowledged breach. The testimony is that the action of appellant induced appellee to retain the jack and to attempt to put him in condition for service, under the direction of appellant and with a remedy which the latter furnished. This was in effect a waiver of the condition to return the jack. Besides, it appears that the remedy provided by appellant rendered the jack sick and unsound, and the agreement provided that he could be returned only if he was as sound as when sold. These things excused the return of the jack, and appellee was entitled to recover such damages as he sustained by reason of the breach of the warranty.
The next contention is that there was error in the judgment rendered on the pleadings. The answer specifically pleaded an offer, which appellee accepted, but it is argued that as the offer was not promptly accepted it was no longer available to appellee. It is true that appellee denied that there had been a settlement, as appellant alleged, but it is also true that instead of accepting the offer he went into a trial, which resulted in an adverse verdict. This was in effect a rejection of the offer, and appellant was then at liberty to with draw it. However, the verdict returned was set aside and the parties were placed in the same position they occupied before the trial. The answer of appellant was not amended, and the offer which it contained was allowed to stand. Ordinarily an offer is only deemed to continue for a reasonable time, and ordinarily one who rejects an offer is concluded by that action. Here, however, the answer containing the offer was not amended or changed. Both parties appear to have treated it as a continuing offer. The appellant did not object to going into a hearing as to appellee’s compliance with the terms of the offer because the offer was no longer in force. While the hearing was in progress, and when counsel for appellee stated that they were ready to return the jack in accordance with appellant’s offer, counsel for appellant, instead of claiming that the offer in the answer was no longer available, objected that the tender of the return of the jack was not made in the proper way, and later he objected to the judgment on the ground that it did not comply with the acceptance of appellee, and also that it did not correspond with the offer contained in the answer. There is a statement in an affidavit made in behalf of appellant that the appellee had forfeited his right to avail himself of the offer, but no such objection was made by counsel present in court when the hearing was on and the terms of the judgment were being settled. There was, as we have seen, no withdrawal of the offer, and when appellee announced an acceptance the parties proceeded as if the offer was open to acceptance, and as. if the only thing left for determination was the mere matter of compliance with its conditions.
The settlement of the terms of the judgment involved the question whether the jack was in as good condition as when the agreement was made, and it is therefore insisted that appellant was entitled to a jury trial of the question. If it be granted that appellant had the right to demand a jury trial on this question, it was a right that could be waived by failing to demand a jury or by acquiescing in the trial of the matter without one. The appellant did not demand a jury trial when the hearing was begun, nor object to a hearing without one. By his action in proceeding with the hearing without asking for a jury the appellant must be deemed to have waived one.
Thé judgment is affirmed. | [
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Per Curiam:
This is an appeal from a judgment in favor of the city of Olathe against the sureties on a bond given by the Missouri & Kansas Interurban Railway Company to insure the payment of a part of the sum promised by it in consideration of the granting of a franchise, as described in the opinion in Olathe v. Edson, ante, p. 408. The questions involved are the same as in that case, and for the reasons there stated the judgment is affirmed. | [
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Hill, J.:
Jeremy L. Rhoads appeals his convictions and sentence for burglary of a motor vehicle, criminal damage to property, and theft.
While on routine patrol, Topeka Police Officer Lance Feyh entered the parking lot behind the Cedar Ridge apartment complex shortly after midnight on May 29,1993. Feyh noticed a figure of a man crouched down next to a vehicle parked in the lot. The man started walking away from the parked car as the officer approached. Officer Feyh became suspicious when a bystander told him the man was running away.
Feyh, first on foot and then in his patrol car, tried to keep the running man in sight. The man ran across a nearby unpaved parking lot next to a church. The officer described the suspect as approximately 5'9" to 5'11" tall, with long blond hair, and wearing overall-type cutoff shorts with the straps hanging down off his shoulders and a white T-shirt. Feyh believed the man was carrying something. When the man ran around the comer of the church, Feyh lost sight of him and called for assistance. Officer Feyh returned to the car parked in the lot, a 1982 Camaro, and noticed that the passenger window had been broken.
Further investigation revealed that the car belonged to Richard Frederick, a resident of the complex. Frederick reported that a floor tom drum, a snare drum, a compact disc player installed in the car, and a compact disc and case had been taken from the car.
Officer William White and “canine officer” Dukes responded to Officer Feyh’s call for assistance. Dukes is a police dog trained to trail a suspect by scent and discover both the suspect and any items dropped by the suspect along the trail. After consulting briefly with Officer Feyh, Officer White set Dukes onto the trail beginning at the Camaro in the parking lot. White gave the command to find the trail and Dukes led White across the unpaved parking lot and alongside the church. This was approximately the same path taken by the man Feyh saw running away.
While Dukes and Officer White were following the trail, Officer Feyh noticed a man at a distance who “briefly fit the description” of the man who had run away. Feyh drove to the man to talk with him. The man was approximately 5’ 10” tall with long blond hair, and he was wearing overall-type cutoff shorts. The overall straps were on his shoulders, and he was not wearing a shirt. Feyh felt certain that this was the man who had run from him earlier. The man identified himself as Jeremy Rhoads. He did not attempt to flee from Officer Feyh, and he answered all of the policeman’s questions.
Meanwhile back on the trail, Officer White heard on his police radio that Feyh was questioning someone about the case. White continued on the trail with Dukes to see if the trail led to the man with Officer Feyh. Dukes continued on the trail to within about 30 yards of Rhoads and Officer Feyh and then stopped and looked up. To White, this meant that Dukes had found his suspect. While Feyh and Rhoads were still talking, Dukes and White returned to the unpaved parking lot to search for evidence. Officer White found a compact disc case that Frederick later identified as one taken from his car. No other items taken in the burglary were found.
Officer Feyh discovered fresh shoe prints in the sand next to the passenger side of the Camaro. Feyh testified that the footprints did not match any of the police officers’ shoes. Feyh testified that Rhoads’ Converse React tennis shoes, which he had seized as evidence, matched the prints found in the sand.
Officer Feyh testified that a scientific investigation unit officer had attempted to take a fingerprint off the Camaro, but that he did not know the results.
The State charged Rhoads with burglary of an automobile in violation of K.S.A. 1992 Supp. 21-3715, theft in violation of K.S.A. 21-3701, and criminal damage to property contrary to K.S.A. 1992 Supp. 21-3720. The juiy trial in this case was on August 30-31, 1993. Rhoads was convicted of burglary of a motor vehicle, a class E felony at the time, and theft and criminal damage to property, both class A misdemeanors.
Rhoads raises three issues on appeal. First, did the trial court err when it held an in-chambers conference with counsel to address questions sent to the court by the jury during its deliberations? Second, is there sufficient evidence to sustain a conviction? And, third, did the trial court fail to follow the Kansas Sentencing Guidelines Act in passing sentence upon Rhoads?
After beginning deliberations on the second day of the trial, the jury sent three questions to the judge. The court consulted with counsel for both the State and Rhoads by using an in-chambers telephone conference. All three agreed upon the answers for the jury. Rhoads had left the courthouse at this time and was not present during the conference call. He now contends that his absence from the conference violated his right to be present at all stages of the proceedings against him as provided by K.S.A. 22-3405(1).
The law provides that Rhoads has a right to be present at all major stages of his trial. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to be present. K.S.A. 22-3405(1) codifies that guarantee in Kansas. It states:
“The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant’s voluntary absence after the trial has commenced in such person’s presence shall not prevent continuing the trial to and including the return of the verdict.”
The Kansas Supreme Court in State v. Mantz, 222 Kan. 453, 565 P.2d 612 (1977), ruled that a defendant need not be present at an in-chambers conference between the trial court and counsel where discussions about instructions occurred, if the trial court made no final decision about the instructions during the conference. The court also ruled that a defendant need not be present during “off the record discussions between court and counsel at the bench involving only matters of law where a defendant’s presence is not essential to a fair and just detennination of some substantial issue.” 222 Kan. at 463-64.
Since Mantz, subsequent cases have held that a defendant must be present: (1) when the jury is in the courtroom or (2) where the defendant’s presence is essential to a fair and just determination of a substantial issue. See State v. Knapp, 234 Kan. 170, 179-80, 671 P.2d 520 (1983); State v. Sanders, 227 Kan. 892, 893-94, 610 P.2d 633 (1980); State v. Sandstrom, 225 Kan. 717, 721, 595 P.2d 324, cert. denied 444 U.S. 942 (1979); State v. Antwine, 4 Kan. App. 2d 389, 400-01, 607 P.2d 519 (1980). Furthermore, where an in-chambers conference involves only a question of law, the defendant’s presence is not essential to a fair and just determination of a substantial issue. See Knapp, 234 Kan. at 180; State v. Marks, 231 Kan. 645, 651, 647 P.2d 1292 (1982); Sanders, 227 Kan. at 894; Mantz, 222 Kan. at 464; Antwine, 4 Kan. App. 2d at 400-01.
The first question posed by the jury was, “What happens if jurors cannot come to a verdict?” The court responded, “The Court will declare a mistrial and the case will be tried to another jury.” The second question asked, “In count 1, please clarify, ‘knowing entry’ ”; and “Does alleged [sic] has [sic] to be seen physically entering in order to convict?” The court answered, “You must find beyond a reasonable doubt that the defendant entered the vehicle and that he did so intentionally and not by accident or inadvertence. You are to decide this question from the evidence presented.” And the third question asked by the jury was, “Is it normal procedure in police investigation in this type of theft to not to dust the [sic] fingerprint?” The court’s answer was, “The Court cannot answer this question as it does not involve issues in the case.”
The conference between the trial court and attorneys took place outside the presence of the jury. After deciding the answers, the trial court then noted that Rhoads was not present in chambers. The following discussion occurred:
“MR. KESSLER: He told me he was going to walk down to Town Crier. I told him to come back at 9:30 and check with Allis.
“THE COURT: Do you waive his appearance here?
“MR. KESSLER: I would waive it, if he’s not out in the hall. I don’t foresee a big problem with that.
“THE COURT: We’ll have to keep the jury waiting another 10 or 15 minutes probably.
“MR. KESSLER: Well, yeah, I don’t think he needs to be there.
“THE COURT: Okay.
“MR. KESSLER: I’ll waive it and you can make a note of that so there isn’t—
“THE COURT: Oh, yeah, we’ve been on the record here.
“MR. KESSLER: Okay.
“THE COURT: All right. Thank you all.”
The questions from the jury are clearly questions of law. Rhoads’ presence was not essential to a fair and just determination of the jury’s questions. Furthermore, the record clearly shows that Rhoads’ counsel waived Rhoads’ right to be present at the in-chambers conference and that he was therefore voluntarily absent as contemplated by K.S.A. 22-3405(1).
Rhoads contends that there was insufficient evidence to sustain a conviction in his case. The main question at his trial was the identity of the man that Officer Feyh originally saw near the automobile that was the object of the burglary.
Rhoads argues that the jury must have drawn inferences upon inferences to find him guilty because of the lack of evidence in his case. The fact that canine officer Dukes “looked up” at him, Rhoads contends, proves nothing. Rhoads argues that the limited opportunity that Officer Feyh had to observe the suspect makes his in-court identification of Rhoads unreliable. Rhoads contends that any person’s tennis shoes could have made those footprints next to the Camaro. He also argues that there was no evidence connecting him with the compact disc case found in the field.
Rhoads mistakenly relies upon State v. Williams, 229 Kan. 646, 630 P.2d 694 (1981), to support his position. However, that case deals with presumptions, which Rhoads confuses with circumstantial evidence. A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. K.S.A. 60-413. In the criminal law, a presumption may not rest on presumptions or inferences on inferences. See State v. Clemons, 251 Kan. 473, 486, 836 P.2d 1147 (1992). In a criminal case, a trier of fact is free to consider or reject a presumption. 251 Kan. at 487. However, circumstantial evidence is different.
“Circumstantial evidence is testimony not based on actual personal knowledge or observations of the facts in the controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved. [Citation omitted.] Circumstantial evidence is used to show the existence of a principal fact. It is well established in this jurisdiction that a conviction of even the gravest offense may be sustained by circumstantial evidence. [Citation omitted.]
“When considering the sufficiency of circumstantial evidence to sustain a conviction of a crime the question on appeal is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That question was for the jury and the trial court. When the sufficiency of circumstantial evidence is challenged, tire 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.” 251 Kan. at 487-88.
Rhoads contests the accuracy of Officer Feyh’s identification of him as the same man Feyh had seen three to five minutes earlier fleeing the scene. Rhoads also contests Officer White’s interpretation of canine officer Dukes’ actions to be an identification of him as the proper suspect. Rhoads also challenges Feyh’s identification of the footprints found near the Camaro as matching Rhoáds’ shoes.
The testimony of Officers Feyh and White leads to the conclusion that Rhoads was the man seen fleeing from the burglarized Camaro. Rhoads’ height, body frame, and clothing matched or were similar to that of the suspect. Furthermore, some stolen property was found in the field through which Rhoads fled. The juiy obviously found Feyh and White to be credible witnesses. “It is the jury’s function, and not an appellate court’s, to weigh the evidence and pass upon the credibility of witnesses.” State v. Holley, 238 Kan. 501, 511, 712 P.2d 1214 (1986). The evidence here is sufficient for a rational factfinder to find Rhoads guilty beyond a reasonable doubt.
Originally, on November 9, 1993, the court sentenced Rhoads to an indeterminate one- to five-year sentence for the automobile burglary conviction and six months on each misdemeanor charge. The sentences were concurrent. The court did not then determine Rhoads’ criminal history classification or compute his sentence under the Kansas Sentencing Guidelines Act. Rhoads did not re ceive probation, but the court suspended his sentence and ordered him to serve “no less than 180 days” in the Labette Conservation Camp.
The State filed a request for a departure sentence on February 2, 1994. The court passed sentence on Rhoads again on February 11, 1994. This sentence was again an indeterminate sentence of 12 to 60 months for the automobile burglary conviction. The trial court found that Rhoads had committed a level 9 nonperson felony and had a criminal history category E. The trial court set a post-release supervision period of 24 months and marked the journal entry to show the 24-month period as a dispositional departure from the guidelines. In the aggravating factors section of the sentencing journal entry, the court marked the “Other” box and noted: “Defendant was unsuccessful with previous probation and also has extensive criminal history.” The court also ordered Rhoads to pay $1,100 in restitution to Frederick. The second sentencing did not address the misdemeanor counts. The court also entered a dispositional departure in this case by denying Rhoads presumptive probation at the second sentencing. The sentencing guidelines call for a determinate 9, 10, or 11-month prison sentence with presumed probation for a severity level 9 category E conviction of a nondrug crime. The guidelines also call for a 12-month post-release supervision period for a severity level 9 crime. K.S.A. 1993 Supp. 21-4704.
This case must be returned to the trial court for resentencing for three reasons. First, during the second sentencing hearing, the trial court failed to impose a sentence for the misdemeanor counts II and III. Second, the trial court failed to properly make findings sufficient for a dispositional or durational departure sentence. And, third, the court failed to impose a determinate sentence.
Counts II and III are class A and B misdemeanors respectively, punishable by a term of confinement up to one year for count II and six months for count III and by imposition of a fine. The length and location of Rhoads' possible incarceration are determined by whether his misdemeanor sentences are to be served consecutive to or concurrent with each other and consecutive to or concurrent with the felony sentence.
The Kansas Supreme Court in State v. Thomas, 239 Kan. 457, 460, 720 P.2d 1059 (1986), defined the act of passing sentence:
“The pronouncement of sentence or rendition of judgment is a judicial act of the sentencing judge, as distinguished from the entry of the judgment, which is a ministerial act of preparing the record for judgment.
“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. . . .
“Clerical mistakes within the record include typographical errors, incorrect statute numbers, failure to include the statute number, failure to state additional true matter, formal or clerical errors and entries concerning matters of procedure. Such omission or errors are correctable by nunc pro tunc orders.”
A trial court’s failure to impose sentence on two misdemeanor counts when the defendant was convicted of two misdemeanor counts and one felony makes the entire sentence ambiguous and therefore illegal.
The second reason that Rhoads must be resentenced is that the trial court failed to set forth substantial and compelling reasons for departing from a guidelines sentence.
Rhoads’ sentence was subject to the limited retroactivity provision of K.S.A. 1993 Supp. 21-4724 because he was convicted of a severity level 9 nondrug felony, even though he committed his crimes before July 1, 1993, but was sentenced after that date. K.S.A. 1993 Supp. 21-4724(f) requires that the computation of his sentence conversion is to be done by the trial court and not the Department of Corrections.
If, after July 1, 1993, a trial court is to depart from the sentencing guidelines in making a retroactive sentence conversion for a crime committed prior to July 1, 1993, it must comply with the departure criteria provided in the Kansas Sentencing Guidelines Act. Those criteria are set out in K.S.A. 1993 Supp. 21-4716 through K.S.A. 1993 Supp. 21-4719. This is consistent with the holding in State v. Gonzales, 255 Kan. 243, 874 P.2d 612 (1994). There the Supreme Court held that for offenses committed prior to July 1, 1993, and sentenced prior to July 1, 1993, conversion was mandatory and that departure provisions of the Sentencing Guidelines Act must be followed.
“We believe that the legislative intent in adopting the retroactivity provision of the Sentencing Guidelines Act was to make conversion mandatory and that the provisions in K.S.A. 1993 Supp. 21-4724(d) require the trial court to settle any disputes concerning criminal history and to impose a sentence within the correct grid box just as if the trial judge were imposing an original sentence under the guidelines. The trial judge may consider any information available as of the original sentencing date that he or she could have considered in imposing an original sentence under the guidelines, and the trial judge may depart from the guidelines. Any departure must be consistent with the departure provisions of the guidelines, and a parole or probation violation after the original sentencing date may not be considered in converting the sentence. Any departure must be justified by the trial court by written findings and an order as required by the guidelines. “ 255 Kan. at 250.
The same reasoning should apply to sentence conversions done after July 1, 1993. To do otherwise would be unfair and incongruous.
Appellate review of a guidelines departure sentence must be on a case-by-case basis, for what is compelling in one case may not exist in the next. The only reason given by the trial court for imposing a departure sentence here was that “[defendant was unsuccessful with previous probation and also has extensive criminal history.” The trial court did not point out any of the aggravating factors listed in K.S.A. 1993 Supp. 21-4716(b)(2).
K.S.A. 1993 Supp. 21-4716(a) of the Kansas Sentencing Guidelines Act states that a sentencing judge “shall impose the presumptive sentence provided by the sentencing guidelines . . . unless the judge finds substantial and compelling reasons to impose a departure.” The term “substantial” here refers to something that is real, not imagined, something with substance and not ephemeral. The term “compelling” here implies that a court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary. Examples of the term can be found in State v. Phillips, 252 Kan. 937, 943, 850 P.2d 877 (1993), where aggravating circumstances can “compel” the outweighing of mitigating circumstances; State v. Macomber, 244 Kan. 396, 405, 769 P.2d 621, cert. denied 493 U.S. 842 (1989), which holds that a trial court must have articulable “compelling” reasons for not using PIK instructions; and State v. Williams, 15 Kan. App. 2d 656, 666, 815 P.2d 569 (1991), which states some “compelling need” must exist for the State to be allowed to obtain certain types of body fluids from a defendant.
The guidelines already take into account the criminal history of a defendant by providing different sentences in the different category boxes on the grid. A defendant with a more extensive criminal history receives a longer sentence for the same crime than a defendant with fewer convictions. A sentencing court, when departing from a guidelines sentence, must state more substantial and compelling reasons than a conclusion of “has extensive criminal history” to depart from the guidelines.
The fact that a defendant has failed on probation in prior cases may be a substantial and compelling reason for a dispositional or durational departure sentence, but the trial court must articulate reasons why it is compelled to depart that are real and not just conclusions. What is it about the fact that Rhoads’ probation had been revoked once that compels the trial court to depart from the guidelines in this case? The record is silent in this regard.
The 24-month post-release supervision period prescribed by the trial court in this case is also a departure from the 12-month presumptive post-release supervision period which the guidelines call for in a conviction for a severity level 9 nondrug felony. K.S.A. 1993 Supp. 22-3717(d)(l)(B). In order to depart from a guidelines presumptive post-release supervision period, a trial court must find substantial and compelling reasons. Such a departure is subject to appeal pursuant to K.S.A. 1993 Supp. 21-4721. See K.S.A. 1993 Supp. 22-3717(d)(l)(C)(ii). The trial court made no findings in this regard.
Finally, trial courts no longer have the option to impose an indeterminate sentence after the passage of the Kansas Sentencing Guidelines Act for crimes designated on the sentencing grids. K.S.A. 1993 Supp. 21-4704 and -4705. Sentences expressed in each grid represent months of imprisonment. K.S.A. 1993 Supp. 21-4704(b).
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GERNON, J.:
In this appeal of his conviction of one count of sale of marijuana, Jasper Jody Gambrel claims the trial court erred by failing to give a cautionary instruction.
We affirm.
Robyn Roberts worked as a confidential informant and was sworn as a deputy with the McPherson County Sheriff’s Department. She was paid $2,000 per month and reimbursed for college expenses at McPherson College. She had previous experience in law enforcement.
Roberts met Gambrel at a bar and, after discussing marijuana, went with him to Roberts’ apartment where Roberts, relying on her law enforcement training and experience, simulated smoking marijuana. Roberts asked Gambrel about getting some marijuana and followed up with four phone calls.
Gambrel told Roberts on the telephone that he had found some marijuana and that the price would be $45 for a quarter ounce. Roberts agreed to meet Gambrel in a bar but first was fitted with a wire transmitter. The sale took place, and Gambrel was arrested.
Gambrel admitted he sold the marijuana but said he did so only to “get [Roberts] off his back” so that she would quit calling.
Gambrel was tried twice. The first trial ended in a hung jury. He relied on an entrapment defense in the second trial and was convicted.
Gambrel requested that the trial court give the following instruction, PIK Crim. 3d 52.18-A: “You should consider with caution the testimony of an informant who, in exchange for benefits from the State, acts as an agent for the State in obtaining evidence against a defendant, if that testimony is not supported by other evidence.”
The trial court refused to give the instruction, stating as follows:
“The bottom line is I don’t believe that particular instruction applies to a deputized pobce or Sheriff’s officer in this case. And I, it’s uncontested that she is, even though you’ve tried to make tadoo [sic] out of the fact she doesn’t have benefits and nothing was withheld. That doesn’t control whether she was a deputized Sheriff’s deputy and it’s clear from the evidence, and in fact it’s unrebutted she was that. This is meant for the type of informant where someone is plea bargaining or something along those lines. I’m not going to give the instruction. You can take that up on appeal.”
In a criminal action, tfre trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. State v. Scott, 250 Kan. 350, 357, 827 P.2d 733 (1992).
Gambrel cites State v. Novotny, 252 Kan. 753, 851 P.2d 365 (1993), and State v. Fuller, 15 Kan. App. 2d 34, 802 P.2d 599 (1990), rev. denied 248 Kan. 997 (1991), to support his contention that it is error not to give a cautionary instruction on the testimony of a paid informant or agent.
Gambrel’s reliance on Novotny and Fuller is misplaced, in our view. In Novotny, the informant had prior contact with law en forcement officers and agreed to work as an undercover agent on a “bounty” basis, being paid an amount which was dependent on the quantity and type of drug purchased. The informant was not deputized.
In Fuller, the informant agreed to work for law enforcement officers after he was arrested for selling drugs. The quid pro quo was that his drug charges were dismissed after a few buys. He then was paid a bounty for each buy.
This precise question has not been ruled on in Kansas. The issue is whether a cautionary instruction is required when a confidential informant has beep deputized, is working on a salary which is not dependent on the number or nature of drugs purchased, and has prior law enforcement training and experience. We conclude it is not required under these facts.
In Bush v. United States, 375 F.2d 602, 604 (D.C. Cir. 1967), the court stated:
“It would be anomalous indeed to single out police officers and include them in a category with the so-called police informant, sometimes less euphemistically described as a ‘stool pigeon.’ The law has recognized that some witnesses, the accomplice and informant, for example, should in some circumstances be the subject of a cautionaiy instruction when requested. But it would be a dismal reflection on society to say that when the guardians of its security are called to testify in court under oath, their testimony must be viewed with suspicion. This would be tantamount to saying that police officers are inherently untrustworthy. The cure for unreliable police officers is not to be found in such a shotgun approach.”
In State v. Mullins, 95 Kan. 280, 302-03, 147 Pac. 828 (1915), our Supreme Court stated the following regarding the testimony of law enforcement officers:
“Detectives perform a valuable and necessary function in modem society. They are merely private citizens trained in the collection of evidence against criminals and in the study of the habits of criminals. Modem governments which are in earnest in seeing that their laws are enforced, that their coinage is preserved from counterfeiting, that their mails are free from molestation and robbery, make free use of detectives and secret service men. The profession of detectives may be regulated by law, but no sound reason can be suggested why their testimony should be singled out as deserving of less credence than the evidence of witnesses in general. Their credibility may be subjected to strict cross-examination, and counsel for the defense may comment freely upon their testimony in argument; but even in this respect the same broad range of comment is accorded to counsel to discuss the credibility of all witnesses.”
We must then answer the question as to whether it makes a difference that the informant here was not employed as a “regular” law enforcement officer.
The first response to such a question is that the inherent nature of a confidential informant's role in law enforcement operations is that the informant not be “regular” in the ordinary sense of the word. Perhaps a better view is to compare confidential informants only. Who is more “regular,” a law-enforcement trained and experienced informant who is deputized and who is working on a salary or one who may be attempting to avoid being charged with a crime and/or works for pay based on the number and nature of drugs purchased? Who is more likely to provide credible evidence under the above scenarios? Who is more likely to engage in activities which might be viewed as entrapment? To ask the questions is to answer them.
Our view is that the paid informant instruction is designed for and ought to be given in situations in which the informant has something personally to gain or has a personal interest in making a buy or a contact.
Other states have taken the same view. In State v. Gurule, 194 Neb. 618, 234 N.W.2d 603 (1975), the defendant requested a cautionary instruction concerning the weight and credibility to be given to a paid informer. The court stated:
“The principal witness for the State in this case was the undercover agent Dillon. Dillon was employed by the State to investigate and gather evidence of drug violations. He was not a regular officer in the sense of a permanent employee, but he was paid a weekly salary while employed and was not employed to seek evidence against a particular person only.
“. . . There was nothing to indicate that Dillon had any greater direct personal interest in supplying evidence against the defendant than any other public officer. We find no error in refusing the requested instruction.” 194 Neb. at 622.
In Turner v. State, 515 P.2d 384, 386 (Alaska 1973), the court stated: “It does not appear that [the informant] had any greater direct personal interest in supplying evidence against the defendant than a police officer normally has in giving evidence in any case.”
Similarly, in United States v. Hoyos, 573 F.2d 1111, 1116 (9th Cir. 1978), the Ninth Circuit held that a cautionary instruction was unnecessary, stating:
“Jimenez had been employed by the DEA as an undercover agent for two years at a set salary, although that arrangement had ended just prior to the trial. The Government’s contention that Jimenez was a special undercover agent for the DEA is supported by the record. He was not a paid informant whose remuneration was tied to the sale of specific information, nor was he a participant in the crime with a promise of immunity.”
Finally, a cautionary instruction regarding an informant is only required under Kansas law where the agent’s testimony was largely uncorroborated. See Novotny, 252 Kan. at 760. Gambrel admitted the facts surrounding the sale, claiming only that he was entrapped by Roberts. Roberts’ testimony was also corroborated by several tape recordings of conversations between her and Gambrel.
The trial court did not err in failing to give the cautionary instruction.
Gambrel next contends that in pronouncing sentence, the trial court improperly denied probation and sentenced him to more than the minimum sentence solely because this was a drug case. See State v. Fisher, 249 Kan. 649, 652, 822 P.2d 602 (1991) (trial court’s comment that it did not grant parole on conviction of cocaine, “ ‘first offense or any other,’ ” was an abuse of discretion because the comment could be interpreted to mean the conviction of a cocaine offense meant an automatic sentence of imprisonment regardless of any other factors present).
“The standard of review for trial court sentencing is abuse of discretion. A sentence imposed within the statutoiy guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partialiiy, prejudice, oppression, or corrupt motive.” State v. Fish, 252 Kan. 985, 985-86, 850 P.2d 250 (1993).
K.S.A. 1994 Supp. 21-4606(a) directs the sentencing court to “fix the lowest minimum term which, in the opinion of such court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.” “K.S.A. [1994 Supp.] 21-4606[b] sets forth seven factors which, while not con trolling, are to be considered by the court in fixing the minimum term of imprisonment.” State v. McDonald, 250 Kan. 73, 82, 824 P.2d 941 (1992).
In pronouncing sentence, the trial court stated as follows:
“Bottom line on this, Mr. Gambrel, is simply that you’re dealing in drugs and when you’re dealing in drugs you get caught, there is a cost to be paid. Dealing in drugs in the community is what leads to, 95 percent of the crimes that we have are somewhere drug related, and being a part of that makes you the forefront of those kinds of problems. That being the case, to grant probation would minimize the seriousness of that particular offense. Probation will be denied. He’ll be remanded to the custody of the Secretary of Corrections to serve the sentence imposed. I’ll reconsider your case, Mr. Gambrel, to be quite honest, once I receive a report from Reception and Diagnostic. That’s not to say that I’ll grant you probation at that time but at least I’ll take another look at it based on what the report tells me. It’s just that simple. Assuming, of course, your attorney files the appropriate motion. Enhanced minimum sentence as well as the denial of probation is based on the prior criminal record of the defendant, together with the seriousness of the offense. I have fully considered those factors contained in K.S.A. 21-4601 and 4606, 4606(a) and (b). Probation and or Community Corrections, there is no presumption on each because of the seriousness of this offense, that being a Class C felony, as opposed to being D or E, as well as by the fact that he has the prior convictions.”
Gambrel fails to demonstrate an abuse of discretion in the trial court’s denial of probation. The court clearly stated that it had considered the statutory sentencing factors set forth in K.S.A. 21-4601 and K.S.A. 1994 Supp. 21-4606 and was denying probation based upon the seriousness of the offense and Gambrel’s prior record. Contrary to Gambrel’s position, nothing about the court’s comments suggests that the court would deny probation for all drug offenses.
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Gernon, J.:
Russell L. Geis appeals the denial of his motions for sentence conversion under the Kansas Sentencing Guidelines Act (KSGA) in both the McPherson County District Court and the Barber County District Court.
In February 1992, Geis pled guilty to terroristic threat in Barber County. At that time, he had previously served terms after entering a plea of nolo contendere to two counts of terroristic threat and one count of unlawful possession of a firearm in McPherson County. The 4- to 15-year sentence on the McPherson County case ran concurrent with a sentence Geis received for a conviction of terroristic threat in Marion County.
The Barber County District Court sentenced Geis to a one- to five-year sentence. The sentence was consecutive to the 4- to 15-year term because Geis was on parole. His controlling sentence thus became 5 to 20 years.
The KSGA went into effect on July 1, 1993. In August 1993, the Department of Corrections (DOC) issued a sentencing guidelines report for Geis which indicated he was not eligible for conversion to a sentence under the KSGA. The guidelines report listed the following convictions as current offenses:
Terroristic Threat - 91 CR 72 - Level 9
Terroristic Threat - 85 CR 32 - Level 9
Unlawful Possession of Firearm - 86 CR 2129 - Level 8
Terroristic Threat - 86 CR 2129 - Level 9 Geis’ crime severity level was set at 9. The guidelines report then listed the following convictions under Geis’ criminal history:
Terroristic Threat - 85 CR 32 - Level 9 - Person Felony
Unlawful Possession of Firearm - 86 CR 2129 - Level 8 - Nonperson Felony
Terroristic Threat - 86 CR 2129 - Level 9 - Person Felony
The person felonies constituted a B criminal history classification. The combination of Geis’ crime severity level and criminal history precluded him from retroactive sentence conversion because his 9-B grid box was a presumed imprisonment box.
Geis filed motions in Barber Couilty and McPherson County objecting to the guidelines report and requesting conversion. Both courts denied Geis’ motions and his motions for consideration. Geis appeals.
Geis first contends that the McPherson District Court failed to hold a conversion hearing within 60 days following his motion for hearing and, therefore, he should be granted default judgment. The record supports Geis’ claim that the McPherson district court failed to satisfy the statutory mandate within K.S.A. 1993 Supp. 21-4724(d)(3). Geis filed his motion on August 17, 1993. On October 18, 1993, he filed a motion for default conversion. Inexplicably, the initial conversion hearing was not held in McPherson County until February 9, 1994, and then was continued to March 8, 1994.
K.S.A. 1993 Supp. 21-4724(d)(3) states: “In the event a hearing is requested, the court shall schedule and hold the hearing within 60 days after it was requested and shall rule on the issues raised by the parties within 30 days after the hearing.”
The State contends the issue is moot so far as McPherson County was concerned because Barber County had already ruled on Geis’ eligibility for conversion. The State also contends that there is no language within the KSGA which suggests that a default judgment on behalf of an inmate is the appropriate remedy should a court fail to hold a timely hearing.
Default judgment is authorized within the code of civil procedure. Provisions within the code of civil procedure apply to criminal actions when no contrary provisions exist within the code of criminal procedure. See State v. Johnson, 255 Kan. 140, 155, 871 P.2d 1246 (1994).
K.S.A. 60-255(a) states that default judgment can be rendered against a party upon a proper showing by die moving party. K.S.A. 60-255(b) allows for a default judgment to be set aside when the party in default satisfies K.S.A. 60-260(b). K.S.A. 60-260(b) indicates that default judgment may be set aside for reasons including mistake, excusable neglect, surprise, fraud, and any other reason justifying relief from the default judgment. The law favors a hearing on the claims raised by the parties in order to address the merits of the arguments and issues presented. See Tyler v. Cowen Construction, Inc., 216 Kan. 401, Syl. ¶ 2, 532 P.2d 1276 (1975).
Our question here is whether any remedy exists if a district court judge fails to hold a hearing within the time constraints of K.S.A. 1993 Supp. 21-4724(d)(3), and, if so, what is the remedy.
We conclude that K.S.A. 60-255 cannot be used by Geis to force this court or any court to allow him a default judgment. K.S.A. 60-255 plainly states that it applies to the parties. No mention is made there, or anywhere else, of allowing a default judgment to be entered on the basis of the inexplicable delay of a court to hold a hearing, as is the case here. In addition, the court’s delay in holding a conversion hearing could arguably fall under the concept of excusable neglect mentioned in K.S.A. 60-260(b).
We conclude that in the case before us, the error was harmless. We need to emphasize, however, that not in all cases would the error be harmless. Should an incarcerated individual be eligible for conversion, such delay would be inexcusable. The test for harmless error in a criminal action is whether an appellate court can find that the error does not appear to have prejudicially affected the substantial rights of the party and “substantial justice” has resulted despite the error. See State v. Ferguson, 254 Kan. 62, 85, 864 P.2d 693 (1993).
It is only because Geis’ arguments on all of the issues raised here will not prevail on the merits that we can say that a substantial injustice has not been done by the trial court’s failure to hold the hearing within the required time. The merits of Geis’ argument against his preclusion from sentence conversion were not diminished by the delay only because he will not prevail.
Geis next attacks the KSGA’s failure to specifically address the conversion status of an inmate with a severity level ranking that permits conversion but with a criminal history that prevents conversion.
Geis claims the Barber District Court should have converted his sentence. The State argues that his criminal history removed him from the pool of inmates the legislature intended to convert under the guidelines. When called upon to interpret the KSGA, the Kansas Supreme Court has referred to the two primary rules of statutory interpretation: First, the intent of the legislature controls when that intent can be, ascertained. State v. Gonzales, 255 Kan. 243, 248-49, 874 P.2d 612 (1994). Second, the courts must give effect to plain and unambiguous language used within a statute by the legislature. 255 Kan. at 249.
K.S.A. 1993 Supp. 21-4724(b)(l) states:
“Except as provided in subsection (d), persons who committed crimes which would be classified in a presumptive nonimprisonment grid block on either sentencing grid, in grid blocks 5-H, 5-1 or 6-G of the nondrug grid or in grid blocks 3-H or 3-1 of the drug grid, pursuant to the provisions of subsection (c) of K.S.A. 1993 Supp. 21-4705 . . ., if sentenced pursuant to the Kansas sentencing guidelines act, and were sentenced prior to July 1, 1993, shall have their sentences modified according to the provisions specified in the Kansas sentencing guidelines act.” (Emphasis added.)
The conversion process is described as follows:
“(1) Except as provided in subsection (f), the department of corrections shall conduct a review of all persons who committed crimes and were sentenced prior to July 1, 1993, and are imprisoned in the custody of the secretary of corrections as of that date. The department shall prepare a sentencing guidelines report on all such imprisoned inmates except those who have convictions for crimes which, if committed on or after July 1, 1993, would constitute a severity level 1, 2, 3 or 4 felony on the sentencing guidelines grid for nondrug crimes or a severity level 1, 2 or 3 felony on the sentencing guidelines grid for drug crimes, but, including those in grid blocks 3-H or 3-1 of the drug grid, pursuant to the provisions of subsection (c) of K.S.A. 1993 Supp. 21-4705 and amendments thereto, which shall review and determine what the person’s sentence as provided by the crime severity and criminal history grid matrix established by the Kansas sentencing commission guidelines act would be as if the crime were committed on or after July 1, 1993. A copy of the report shall be transmitted to the inmate, the county or district attorney for the county from which the inmate was sentenced, and the sentencing court.
“(5) The department of corrections shall complete and submit to the appropriate parties the report on all imprisoned inmates with a controlling sentence which, if committed on and after July 1, 1993, would constitute a severity level 9 or 10 felony on the sentencing guidelines grid for nondrug crimes by August 15, 1993.
“(6) The department of corrections shall complete and submit to the appropriate parties the report on all imprisoned inmates with a controlling sentence which, if committed on and after July 1, 1993, would constitute a severity level 7 or 8 felony on the sentencing guidelines grid for nondrug crimes by October 15, 1993.
“(7) The department of corrections shall complete and submit to the appropriate parties the report on all imprisoned inmates with a controlling sentence which, if committed on and after July 1, 1993, would be classified in grid blocks 5-H, 5-1, 6-G, 6-H or 6-1 of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-H or 3-1 of the drug grid, pursuant to the provisions of subsection (c) of K.S.A. 1993 Supp. 21-4705 and amendments thereto, by December 1, 1993.” K.S.A. 1993 Supp. 21-4724(c).
“Within 30 days of the issuance of such report, the person who committed the crime and the prosecution officer shall have the right to request a hearing by filing a motion with the sentencing court, regarding conversion to a sentence under the Kansas sentencing guidelines act to be held in the jurisdiction where the original criminal case was filed. The secretary of corrections shall be provided written notice of any request for a hearing. If a request for a hearing is not filed within 30 days of the issuance of the report, the department shall convert the person’s sentence to one provided for under the sentencing guidelines and provide notification of that action to the person, the prosecution officer, and the court in the jurisdiction where the original criminal case was held. The conversion by the department of corrections to the sentencing guidelines shall be to the mid-point of the range in the applicable grid box. The secretary of corrections shall be authorized to implement a converted sentence as provided in this section, if the secretary has not received written notice of a request for a hearing by the close of normal business hours on the fifth business day after expiration of the 30-day period.” K.S.A. 1993 Supp. 21-4724(d)(l).
The language of the KSGA has been interpreted to require conversion for an individual who falls within a presumptive non- imprisonment grid box or “border box.” See State v. Gonzales, 255 Kan. 243, Syl. ¶ 5. The Kansas appellate courts have also addressed requests for conversion by inmates who were not issued guidelines reports because they committed crimes with a severity level ranking of 1, 2, 3, or 4 on the nondrug grid or 1, 2, or 3 on the drug grid; these inmates are not eligible for conversion. See Chiles v. State, 254 Kan. 888, 869 P.2d 707, cert. denied 115 S. Ct. 149 (1994); State v. Jones, 19 Kan. App. 2d 913, 878 P.2d 845 (1994), rev. denied 255 Kan. 1009 (1994).
Geis argues that no specific statutory language directs mandatory conversion or mandatory preclusion from conversion for individuals whose severity level ranking does not preclude conversion but whose criminal history classification places him in a presumptive imprisonment grid box. Stated differently, he argues that the KSGA requires his conversion because no statute expressly forbids conversion and the KSGA directs a guidelines report be issued to all inmates similarly situated to his. We reject Geis’ argument.
First, the rule of legislative interpretation, in pari materia, directs a court to read the provisions of the guidelines together to make them reasonable and sensible.
Second, the limited retroactivity of the KSGA is controlled by two matters: (1) the seriousness of an inmate’s offense and (2) the seriousness of an inmate’s criminal history.
Third, classification within the “conversion pool” defined by K.S.A. 1993 Supp. 21-4724(b)(l) and (2) is the exclusive means of gaining conversion to a guidelines sentence.
Fourth, a serious criminal history classification, such as Geis has, can remove an otherwise eligible inmate from the “conversion pool.”
Geis next contends that the retroactivity provisions of the KSGA do not contemplate a multi-county, multi-conviction situation, and, therefore, the fact that Barber County decided not to convert his sentence should not preclude McPherson County from doing so.
The State responds that Geis is not eligible for conversion in any county because he failed to satisfy the provisions of K.S.A. 1993 Supp. 21-4724(b)(l).
K.S.A. 1993 Supp. 21-4724(c)(l) directs that a guidelines report be sent to the inmate, the county or district attorney of the county in which the inmate was sentenced, and the sentencing court. K.S.A. 1993 Supp. 21-4724(d)(l) directs that objections to an issued guidelines report be filed in the sentencing court where the original criminal action was prosecuted. The KSGA provisions do not outline a procedure for deciding the appropriate county for filing of an objection to a guidelines report that includes convictions from various counties. The silence of the KSGA on this issue, contrary to Geis’ arguments, does not mean that inmates can have their sentences converted within one county while remaining ineligible for conversion in other counties.
The most important rule of statutory interpretation is that the intent of the legislature controls when that intent can be ascertained. State v. Gonzales, 255. Kan. at 248-49. The KSGA does not indicate that the legislature intended inmates to separately attempt to have their sentences converted within various counties.
Review of K.S.A. 1993 Supp. 21-4724 indicates a guidelines report is prepared to indicate whether an inmate with crime severity level rankings from 5-10 is eligible for conversion under the standard set forth in K.S.A. 1993 Supp. 21-4724(b)(l). The guidelines report compiles information relevant to an inmate’s eligibility for conversion from various state sources. See K.S.A. 1993 Supp. 21-4724(c)(2), (3). K.S.A. 1993 Supp. 21-4711(e) indicates that even out-of-state convictions and federal and military convictions are to be converted to an appropriate classification under the KSGA.
The clear intent of the legislature in creating a process to determine retroactive conversion eligibility was simple: perform a comprehensive review of an inmate’s criminal record and determine whether the inmate constituted a less serious offender. The extensive information used to prepare the guidelines report definitively designates an inmate as eligible or ineligible for sentence conversion; this classification applies to the inmate as an individual under supervision of the DOC. The designation does not apply differently from county to county. The McPherson District Court did not err by refusing Geis’ request to convert his McPherson County sentences to the exclusion of his indeterminate Marion County and Barber County sentences.
We note that the KSGA provides no indication of where an inmate ought to file an objection to a guidelines report when the report lists convictions from numerous counties.
Our reading of K.S.A. 1993 Supp. 21-4724(c)(4), which states in part that “the sentencing court shall determine” a person’s criminal histoiy classification, leads us to conclude that multicounty challenges should be filed in each appropriate district court, with each challenge accompanied by notice of any challenges raised in other counties. In addition, any challenge to a specific conviction within a criminal history listing should be filed in the sentencing court of that conviction. A general challenge to a guidelines report should be filed in the district court which imposed the sentence on the conviction event that comprises the current controlling offense.
Geis next seeks to have this court require the conversion of his McPherson County convictions, alleging that they were improperly charged and should have been charged as nonperson misdemeanor harassment by telephone.
There is nothing in the record on appeal which indicates that any argument was made to the district court attacking the McPherson County convictions for terroristic threat. Generally, issues not raised before the district court cannot be addressed on appeal. State v. Johnson, 253 Kan. 75, 91, 853 P.2d 34 (1993).
Appellate courts will address newly raised issues if such consideration is necessary to serve the interests of justice or prevent a denial of fundamental rights. State v. Clemons, 251 Kan. 473, 483, 836 P.2d 1147 (1992).
Geis raises the Supreme Court’s ruling in Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (1994). Carmichael raised, for the first time on appeal, a challenge to his rape convictions because the more specific offense of aggravated incest should have been charged. The Kansas Supreme Court evaluated the issue, despite the fact that it had not been raised at the district court level.
Geis’ challenge to this issue is controlled by the recent Supreme Court decision of LaBona v. State, 255 Kan. 66, 872 P.2d 271 (1994). In LaBona, the Kansas Supreme Court held that an appellant’s guilty plea constituted a waiver of the right to challenge the State’s failure to charge the specific offense of aggravated incest. Therefore, LaBona acquiesced in his convictions.
Geis pled guilty to two disputed convictions of terroristic threat. LaBona controls, and Geis’ argument on this issue is without merit.
Finally, Geis challenges the use of convictions as criminal history, despite the fact that his aggregate sentence includes sentences from these convictions.
Geis is serving a controlling sentence of 5-20 years. His controlling sentence is comprised of his sentences from his Barber County, McPherson County, and Marion County convictions. The DOC lists all Geis’ convictions as current offenses on his guidelines report. The guidelines report then lists all his convictions, except the most recent, to compute his criminal history classification. The report omits one of die McPherson County terroristic threat convictions from the list of all his convictions and the criminal history list.
The issue is whether, under the guidelines, convictions that make up Geis’ controlling sentence are all considered part of the current offense and cannot be used to compute a criminal history classification. K.S.A. 1993 Supp. 21-4724(c)(l) directs the DOC to review inmates sentenced prior to July 1, 1993, who are not precluded by a serious severity level ranking and to prepare a guidelines report that “shall review and determine what the person’s sentence as provided by the crime severity and criminal history grid matrix established by the Kansas sentencing commission guidelines act would be as if the crime were committed on or after July 1, 1993.”
The KSGA unfortunately fails to indicate what constitutes “the crime” for conversion purposes. The reference is clear for individuals serving a distinct criminal sentence who have satisfied the sentences imposed for past convictions. The designation is not so clear for individuals with a controlling sentence that includes sentences from separate convictions imposed over a period of time.
The intent of the legislature governs when it can be ascertained. Gonzales, 255 Kan. at 248-49. The legislature presumably intends that a statute be read and construed to circumvent an absurd result. Todd v. Kelly, 251 Kan. 512, 520, 837 P.2d 381 (1992). Also, the provisions within an act are to be construed together to effectuate a sensible and consistent construction of the legislation. See 251 Kan. at 516.
The general intent of the legislature concerning conversion to a guidelines sentence is expressed within K.S.A. 1993 Supp. 21-4724(b)(1). K.S.A. 1993 Supp. 21-4724(b)(l) states that inmates shall be eligible for conversion if they committed crimes that would be classified in a presumptive nonimprisonment grid box or border box “if sentenced pursuant to the Kansas sentencing guidelines act, and were sentenced prior to July 1, 1993.”
For KSGA sentencing purposes, a crime breaks down to a conviction event, defined as “one or more felony convictions occurring on the same day and within a single court. These convictions may result from multiple counts within an information or from more than one information.” K.S.A. 1993 Supp. 21-4703(c). When a person is convicted of more than one crime the severity level ranking is determined by the conviction with the most serious ranking. K.S.A. 1993 Supp. 21-4707. For criminal history purposes, however, each separate conviction is calculated in the criminal history score regardless of the concurrent or consecutive nature of the sentences. K.S.A. 1993 Supp. 21-4710(c).
Application of the KSGA to Geis’ criminal convictions reveals three separate conviction events. His earliest conviction event was his 1985 Marion County conviction for terroristic threat. His second conviction event occurred in 1986 when he pled guilty to two counts of terroristic threat and one count of unlawful possession of a firearm in McPherson County. His most recent conviction was his 1991 conviction for terroristic threat in Barber County.
The use of Geis’ most recent conviction event as the controlling offense was consistent with the intent of the KSGA. Pursuant to K.S.A. 1993 Supp. 21-4724(b)(l), if Geis had been sentenced for his 1991 conviction for terroristic threat as if the KSGA were in effect, his conviction event severity level would be a 9. His correct criminal history would include three person felonies and one nonperson felony, although the guidelines report only listed two person felonies. Thus, his criminal history score would be an A or a B. Placement at either a 9-A or 9-B grid box would leave Geis in a presumptive imprisonment grid box. K.S.A. 1993 Supp. 21-4724(b)(1) dictates that Geis is not eligible for conversion.
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Rulon, J.:
Bryan Niewald and Todd Jung, defendants, challenge the district court’s jurisdiction over, and the constitutionality of, the issuance of an administrative search warrant allowing the City of Overland Park, plaintiff, to inspect defendants’ business for compliance with municipal fire codes. We affirm.
The facts in this case are not in dispute.
Defendants own Central Video Services in Overland Park and refused to allow plaintiff’s fire department into their building to inspect for compliance with city fire codes. Upon defendants’ refusal to submit to a fire inspection, plaintiff filed a petition in district court asking for an administrative search warrant to allow the City to inspect defendants’ business.
Defendants filed a pro se answer challenging the district court’s jurisdiction over the matter and generally stating that there was no statutory authority for such a warrant. Defendants further contended if such authority existed, there was no probable cause to issue a warrant. Defendants filed a counterclaim seeking a permanent injunction preventing plaintiff from inspecting their business.
The district court ruled that the challenged city ordinance was constitutional and enforceable against the defendants. The court granted the plaintiff’s motion for summary judgment and held that a warrant to enforce the annual fire inspection would be issued to the City.
JURISDICTION
Defendants argue the district court did not have jurisdiction because this was a suit in equity and the plaintiff had not shown a concrete harm or an injury in fact. Defendants contend that absent proof of the court’s jurisdiction, the district court did not have jurisdiction and, therefore, the court’s order is void.
Aaticle 3, § 6 of the Kansas Constitution provides that the district courts shall have such jurisdiction as may be provided by law. K.S.A. 20-301 states that the district courts “shall have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law.” Defendants cite no authority indicating that the legislature has enacted provisions excluding an action such as this from the district court’s jurisdiction. Consequently, the plain language of the statute indicates that the district court shall have jurisdiction unless the legislature provides that it does not or that jurisdiction lies elsewhere. See Murphy v. City of Topeka, 6 Kan. App. 2d 488, 496-97, 630 P.2d 186 (1981).
Here, plaintiff was seeking an administrative search warrant to allow inspection of the defendants’ building in order to determine compliance with an Overland Park city ordinance. By statute, the municipal court could not issue such a warrant. See K.S.A. 12-4104. Necessarily, absent any limiting statute, the issuance of an administrative search warrant is within the general jurisdiction of the district court.
ADMINISTRATIVE SEARCH WARRANTS
Defendants next claim that because there is no statutory authority for issuance of an administrative search warrant, the district court was required to apply K.S.A. 1994 Supp. 22-2502, which mandates a showing of probable cause before issuing the warrant. Defendants contend, because the plaintiff admitted that it had no probable cause to believe that the defendants’ property was in violation of any fire code, the district court had no basis to issue a search warrant. We disagree.
The Fourth Amendment to the United States Constitution is identical in scope to § 15 of the Bill of Rights of the Kansas Constitution; both prohibit unreasonable searches and seizures. State ex rel. Love v. One 1967 Chevrolet, 247 Kan. 469, 476, 799 P.2d 1043 (1990). Consequently, United States Supreme Court decisions discussing the constitutionality of administrative searches are persuasive.
Two of the seminal cases dealing with administrative search warrants are Camara v. Municipal Court, 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967), and See v. City of Seattle, 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967). The Camara Court held that administrative searches of dwellings were significant intrusions upon the interests protected by the Fourth Amendment and that such searches conducted without warrant procedures lacked the traditional safeguards guaranteed by the Fourth Amendment. 387 U.S. at 534. However, such a finding was only the beginning of the analysis. Because the governmental interest in administrative searches is simply to prevent conditions which constitute hazards to public health and safety, the intrusiveness of such searches must be weighed in terms of the reasonable goal of enforcement of safety codes. 387 U.S. at 534-35. The Court went on to hold:
“ ‘[Pjrobable cause’ to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based on the passage of time, the nature of the building . . ., or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling.” 387 U.S. at 538.
The Camara Court further noted that such programs have a long history of judicial and public acceptance and that no other technique would be practical to insure that all dangerous conditions are prevented. “Many such conditions — faulty wiring is an obvious example — are not observable from outside the building and indeed may not be apparent to the inexpert occupant himself.” 387 U.S. at 537.
Similarly, and more on point, in See v. City of Seattle, the Court considered the same question as in Camara, but in the context of a commercial warehouse owner who denied a city inspector access to his building because the inspector did not have a warrant and did not have probable cause to believe a violation of any ordinance existed. The See Court concluded the businessperson, like the occupant of a residence, has a constitutional right to be free from unreasonable official entries upon his or her private commercial property. 387 U.S. at 543. The Court concluded that “administrative entxy, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure.” 387 U.S. at 545. The Court was careful to note that it was not implying that business premises could not reasonably be inspected in more situations than private homes, nor did it question the use of licensing regulations which require periodic inspections as a condition of licensing. 387 U.S. at 546. In a later case, the Court noted that inspections of commercial property may be unreasonable if the inspections are so random, infrequent, or unpredictable that the owner has no real expectation that his or her property will periodically be inspected. Donovan v. Dewey, 452 U.S. 594, 599, 69 L. Ed. 2d 262, 101 S. Ct. 2534 (1981).
Only one Kansas case has specifically dealt with administrative searches. In State v. Marsh, 16 Kan. App. 2d 377, 823 P.2d 823 (1991), this court addressed the issue of the circumstances under which a warrantless administrative search may be carried out. However, the Marsh analysis is only relevant to warrantless search cases involving closely regulated businesses. Here, there is no indication the defendants’ business is a closely regulated industry.
Several other states have addressed the issuance of administrative search warrants. In Owens v. City of North Las Vegas, 85 Nev. 105, 450 P.2d 784 (1969), the defendant challenged the validity of an administrative search warrant because the state statute authorizing search warrants did not specifically authorize such a warrant. The Owens court stated: “The question is not whether the search was authorized by our state law. The question is, rather, whether the search was reasonable under die Fourth Amendment to the United States Constitution.” 85 Nev. at 107. The Owens court relied upon die Camara analysis and concluded that the search met the standard of reasonableness.
In Accident Prevention Division v. Hogan, 37 Or. App. 251, 586 P.2d 1132 (1978), an accident prevention officer tried to inspect the workplace of the defendant but was denied access to the premises. The officer subsequendy obtained a warrant and inspected the business. Hogan challenged the citations that were issued as a result of die inspection, claiming the affidavits that were presented to the judge who issued the warrants were insufficient to establish probable cause. The Hogan court, quoting Camara, noted that probable cause in a criminal sense was not required. The Oregon Court of Appeals ruled that the amount of evidence necessary to show probable cause would depend on the nature of the intrusion and its potential consequences. “Where, as in the administrative inspection area, the inspection will be without potential criminal consequences, issuance of a warrant will be justified without any showing of a history of wrongdoing so long as there are ‘reasonable legislative or administrative standards.’ [Citations omitted.]” 37 Or. App. at 257.
In Seattle v. Leach, 29 Wash. App. 81, 627 P.2d 159 (1981), the owner of an apartment building sought review of her municipal court conviction for violations of city fire codes. The violations were discovered during an inspection conducted pursuant to an administrative search warrant. The Leach court adopted the analysis set out in Camara and See and concluded that a lesser degree of probable cause is necessary to support an administrative search warrant than is required in a criminal case. “An administrative inspection warrant may be based on either (1) specific evidence of an existing violation, or (2) a general inspection program based on reasonable legislative or administrative standards derived from neutral sources.” 29 Wash. App. at 84. However, the Leach court concluded the affidavit supporting the warrant was not sufficient because it failed to describe the program for inspection in sufficient detail to allow a detached and neutral magistrate to determine there was a reasonable legislative or administrative inspection program and that the desired inspection fit within that program. 29 Wash. App. at 85. Consequently, the Leach court reversed the defendant’s conviction because the conviction stemmed from the illegal inspection.
In Kansas, the issuance of search warrants in criminal cases is governed by K.S.A. 1994 Supp. 22-2502. That statute provides in relevant part: “(a) A search warrant shall be issued only upon the oral or written statement ... of any person under oath or affirmation which states facts sufficient to show probable cause that a crime has been or is being committed.”
Here, the district court ruled that K.S.A. 1994 Supp. 22-2502 was inapplicable and did not limit the court’s jurisdiction to issue an administrative search warrant. We are convinced, however, based on the analysis found in Camara and See, that the existence of an administrative policy or ordinance which, specifies the purpose, frequency, scope, and manner of the inspection provides a constitutional substitute for probable cause that a violation has occurred. No statute exists in the Code of Civil Procedure which authorizes administrative search warrants. We conclude that, under the provisions of K.S.A. 1994 Supp. 22-2502, prior to issuing an administrative search warrant, a magistrate or district judge is required to find the pertinent regulation meets the requirements established in Camara, thus providing probable cause to issue the warrant.
The parties here stipulate that plaintiff has a municipal ordinance which calls for the annual inspection of all businesses to check for violations of the City’s fire prevention code. The purpose of the code is to ascertain and correct any conditions that could contribute to the spread of fire or interfere with firefighting operations. The code provisions before us here meet the Camara criteria of a valid administrative regulation which provides for inspections pursuant to a legitimate government policy and calls for inspections to be carried out on a regular, periodic basis to insure compliance with city fire codes.
As we understand, plaintiff does have an administrative plan that calls for annual inspections. We are convinced the district court was correct in finding that the administrative search warrant was constitutional even though the court erroneously concluded probable cause was not required. “The judgment of a trial court, if correct, is to be upheld even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. [Citations omitted.]” State v. Wilburn, 249 Kan. 678, 686, 822 P.2d 609 (1991).
ENFORCEABILITY OF ORDINANCE
Defendants argue that the plaintiff’s fire code is not applicable to them. Specifically, defendants claim that because § F-101.1 of the fire code states that the code is not applicable to existing conditions which do not constitute a distinct hazard to life or property, absent a showing their property constitutes a distinct hazard to life or property, plaintiff has no authority to conduct an inspection. The BOCA Fire Prevention Code was adopted by reference in the City of Overland Park’s municipal ordinance BC-FP-1671 and 1720. Overland Park, Kan., Municipal Code § 16.14.010 (1992). (BOCA stands for Building Officials & Code Administrators International, Inc.).
Defendants’ argument is similar to the previous issue; whether the plaintiff needed probable cause to seek a search warrant.
Section F-101.1 reads:
“The provisions of this code and the building, mechanical and plumbing codes listed in Appendix A shall apply equally to new and existing buildings and conditions.
“Exceptions
“1. Existing conditions which do not constitute a distinct hazard to life or property.”
Defendants correctly quote the fire code but fail to recognize the difference between an existing condition and an existing structure. An existing structure may have existing conditions that are not visible from the outside and thus without inspection could not be discovered to constitute a hazard to life or property. Also, § F-101.4.1 provides that when any provision of the code is found to conflict with another provision of the code, the provision which establishes the higher standard for promotion and protection of the safety and welfare of the public shall prevail. Also, § F-107.3 gives code officials the right to enter any premises either for purposes of enforcing the code or when the official has reasonable cause to believe a condition exists which makes the premises unsafe. These two sections arguably give inspectors the right to enter a building to check for code compliance to insure that no condition exists which is a fire hazard. While § F-107.3 appears in conflict with the language in § F-101.1, its terms establish procedures which promote and protect the safety of the public and, therefore, pursuant to § F-104.1, an inspector may enter an existing structure to determine if an existing condition violates the fire code or poses a threat to public safety.
RIGHT TO CONTRACT
Defendants make a final argument that they are not bound by the plaintiff’s fire code because such constitutes an adhesion contract between defendants and plaintiff’s fire department. Defendants claim that such a contractual arrangement forces them to allow the fire department onto their property, thereby exposing them to liability “engendered by the terms of that contract.” Defendants cite no authority for this argument. Defendants further fail to provide a copy of any contract between plaintiff and the fire department which would substantiate their claim that they are somehow exposed to liability by its terms. Defendants have the burden to designate a record to substantiate their claim of error. See State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989). Absent a showing they could be harmed in any way, defendants’ claim fails.
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Burgess, J.:
The Board of County Commissioners (BOCC) of Franklin County appeals from an order issued by the trial court enjoining the county from enforcing its zoning regulations against Patricia and Dennis Weber.
The Webers raise greyhounds for racing on property they own and live on in rural Franklin County. There are approximately 25 greyhounds on their land. The Webers race the dogs in Colorado and Texas but do not sell or board dogs for a fee.
In June of 1993, the Zoning and Planning Administrator notified the Webers they were violating the zoning regulations of Franklin County by operating a dog kennel in an area zoned as an agricultural district. The Administrator informed the Webers they would need a zoning variance for an agricultural-transitional district and a conditional use permit in order to operate a dog kennel. The BOCC denied the Webers’ request for a zoning variance, following the recommendation of the planning commission.
The Webers then requested a permanent injunction against the enforcement of the county’s zoning regulations. After hearing testimony from Dennis Weber and the Administrator, the trial court reversed the BOCC’s decision and enjoined the BOCC from interfering with the Webers’ use of the property for raising greyhounds.
The trial court issued the following findings of fact and conclusions of law:
“1. The mere keeping of greyhounds on land owned by the [Webers] does not constitute the operation of a dog kennel as that term is used in Franklin County zoning regulations. Therefore, no conditional use permit and no rezoning is necessary for the activities of the [Webers] on their premises as those activities were described in the testimony presented to the court.
“2. That any attempt by the defendant to arbitrarily limit the number of dogs which may be owned and kept by a resident of the county is an unconstitutional exercise of police power under Sec. 1 of the Bill of Rights of the Kansas Constitution. [Citation omitted.]
“3. That the raising and keeping of greyhounds for racing or sale constitutes the use of land for an agricultural purpose as contemplated by K.S.A. 12-758, K.S.A. 19-2908, K.S.A. 19-2921 and K.S.A. 19-2929, and may not be regulated by zoning. [Citations omitted.]”
On appeal, the BOCC does not dispute the trial court’s findings of fact or the first two conclusions of law. This leaves the trial court’s decision that the raising and keeping of greyhounds for racing or sale is an agricultural purpose as the only unresolved issue. The BOCC agrees the Webers are not technically operating a kennel as that word is defined in the regulations. As a result, our determination on appeal as to the issue appealed will not affect the trial court’s ruling concerning the Webers. However, resolution of the issue becomes applicable to others who may be found operating a kennel in the county without the proper use permits and is applicable to the Webers should they begin to sell dogs or board them for a fee. We reverse the trial court’s ruling as to the third conclusion of law.
The BOCC argues that raising and keeping greyhounds for racing or sale is not an agricultural use of the land. Consequently, the county contends it may regulate this use through its zoning regulations. The Webers argue that raising greyhounds is an agriculture use of the land and, thus, is outside the regulatory zoning power of the county.
The standard of review concerning zoning matters is stated in VanGundy v. Lyon County Zoning Board, 237 Kan. 177, 179, 699 P.2d 442 (1985) (citing Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 [1980]).
“(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change zoning.
“(2) The district court’s power is limited to determining
(a) the lawfulness of the action taken, and
(b) the reasonableness of such action.
“(3) There is a presumption that the zoning authority acted reasonably.
“(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence.
“(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.
“(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.
“(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.
“(8) An appellate court must make the same review of the zoning authority’s action as did the district court.”
The issue here involves an inteipretation of county zoning statutes. “Interpretation of statutes is a question of law.” Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). The appellate court’s review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Kansas courts and the legislature have not definitively answered the question presented by this appeal. However, several cases have considered whether related activities fall within the term “agricultural purposes.” Additionally, the Kansas Attorney General has issued two opinions on this issue.
Counties are given general zoning authority “for the protection of the public health, safety and welfare.” K.S.A. 12-741(a). This authority shall not apply “to the use of land for agricultural purposes” or to buildings erected on that land for agricultural purposes. K.S.A. 1993 Supp. 19-2908. This restriction on zoning authority is applicable to townships (K.S.A. 1993 Supp. 19-2908), counties (K.S.A. 1993 Supp. 19-2921), and city planning commissions (K.S.A. 12-715b; K.S.A. 12-758[b]). The purpose of the restriction on zoning authority is to favor agricultural uses and farmers. VanGundy, 237 Kan. at 181 (citing Blauvelt v. Board of Leavenworth County Comm’rs, 227 Kan. 110, 605 P.2d 132 [1980]). The legislature was attempting to “spare the [family] farmer from governmental regulations and not to discourage the development of this state’s farm industry.” 237 Kan. at 182. With this purpose in mind, we turn to the following cases that have considered what constitutes “agricultural purposes” as used in the zoning statutes.
In Board of County Commissioners v. Brown, 183 Kan. 19, 325 P.2d 382 (1958), it was noted that the raising of canaries was similar to the raising of chickens which is commonly regarded as an agricultural pursuit.
Hogs were the subject in Carp v. Board of County Commissioners, 190 Kan. 177, 178-80, 373 P.2d 153 (1962). There, the court found that agriculture includes animal husbandry, which is the raising and feeding of livestock. The court held that Carp’s hog raising and feeding operation was within the “general realm of agriculture” and therefore the county could not interfere with Carp’s agricultural business.
In Fields v. Anderson Cattle Co., 193 Kan. 558, 563-65, 396 P.2d 276 (1964), the court considered whether the operation of livestock feedlots was an industrial or an agricultural enterprise under G.S. 1949, 19-2929 (1961 Supp.). The court first noted that agriculture includes “the breeding, rearing and feeding of livestock in preparation for market. The preparation of farm products for market is the dominating purpose of the agriculturalist.” The court held “the feeding of livestock for market is an agricultural pursuit.”
A farmhouse and accessory buildings were determined to be exempt from zoning regulations pursuant to K.S.A. 19-2921 in Blauvelt v. Board of Leavenworth County Comm’rs, 227 Kan. 110, 114, 605 P.2d 132 (1980). The court held that the county’s zoning authority did not reach “the 40 acres of admitted agricultural land . . . occupied by the farmer-owner who intends to live and carry on 'agricultural purposes’ upon the property.”
In VanGundy v. Lyon County Zoning Board, 237 Kan. 177, a farmer was blasting and excavating his land in order to build a pond for recreation and irrigation purposes. He sold the excavated rock to third parties. The court held that VanGundy was blasting rock to excavate a pond for agricultural purposes and was therefore exempt from county zoning regulations under K.S.A. 19-2921.
Finally, in Corbet v. Board of Shawnee County Comm’rs, 14 Kan. App. 2d 123, 783 P.2d 1310 (1989), we considered whether the proposed operation of a wildlife hunting preserve was an agricultural use. Since the Corbets had planted crops specifically for the purpose of providing wildlife food sources, the operation of a hunting preserve was found to be an agricultural use of the land.
The Kansas Attorney General has issued two opinions on the issue in this case: Att’y Gen. Op. No. 90-68; Att’y Gen. Op. No. 81-173. Both opinions concluded that greyhound operations were not agricultural uses and could be regulated through county zoning ordinances.
K.S.A. 2-3201 declares that the policy of Kansas is “to conserve and protect and encourage the development and improvement of farmland for the production of food and other agricultural products.” Further, “agricultural activity” is defined as “the growing or raising of horticultural and agricultural crops, hay, poultry and livestock, and livestock, poultry and daily products for commercial purposes.” K.S.A. 2-3203(a). Although this statute was passed to provide protection from nuisance suits, it expresses the same pur pose as that exempting agricultural uses from county zoning authority. See Corbet, 14 Kan. App. 2d at 127. Therefore, using this definition, if dogs are considered livestock, the raising of dogs would be an agricultural activity.
Chapter 47 of the Kansas Statutes Annotated addresses livestock and domestic animals and contains several definitions of “livestock.” For branding purposes, “livestock” means “cattle, sheep, horses, mules or asses.” K.S.A. 47-414(b). For purposes of diseased stock and quarantine, the statutes regulate “cattle, calves, sheep, swine, horses, mules, goats, domesticated deer ... or any other animal that may be used in the preparation of meat or meat products.” K.S.A. 47-607(a). For public livestock market purposes, “livestock” means “cattle, swine, sheep, goats, horses, mules and domesticated deer and any other animal as deemed necessary by the commissioner.” K.S.A. 47-1001(b).
For purposes of humane slaughter, “livestock” means “cattle, calves, sheep, swine, horses, mules, goats, aquatic animals, domesticated deer and any other animal which can or may be used in and for the preparation of meat or meat products.” K.S.A. 47-1402(c). For feedlot purposes, “livestock” means “cattle, swine, sheep and horses.” K.S.A. 47-1501(c). Dogs are not included under any Kansas statutory definition of livestock.
Dogs are generally regulated under the Kansas Animal Dealers Act, K.S.A. 47-1701 et seq. However, greyhounds are not covered by this Act, but instead are regulated under the Kansas Parimutuel Racing Act, K.S.A. 74-8801 et seq. Greyhounds, as defined in K.S.A. 74-8802(i), are subject to rules and regulations formulated by the Kansas Racing Commission.
In summary, the Carp decision held that agriculture includes animal husbandry which is the raising and feeding of livestock. In Fields, the court noted that agriculture includes “breeding, rearing and feeding of livestock in preparation for market." In Corbet, this court noted that agriculture involves the “utilization of the resources of the land for production of plants and animals.” Kansas has not generally included dogs in the definition of livestock. The raising of dogs does not involve the utilization of the resources of the land such as that considered in Corbet where crops were planted for feeding wildlife. Finally, the Webers’ raising of greyhounds is not ancillary to an agricultural purpose as was considered in VanGundy. Based on our analysis of these decisions, we hold that in Kansas the raising of greyhounds is not an agricultural use of the land.
Three decisions from other jurisdictions considered nearly the same question. A dog breeding and kennel operation was not considered a farming activity in North Carolina. Development Associates v. Board of Adjustment, 48 N.C. App. 541, 269 S.E.2d 700 (1980), cert. denied 301 N.C. 719 (1981).
The Nebraska Supreme Court considered whether the operation of a dog kennel for stray dogs was “animal husbandry” in City of Beatrice v. Goodenkauf 219 Neb. 756, 758, 366 N.W.2d 411 (1985), and found that statutory definitions of livestock did not include dogs. It held that the raising of dogs was not animal husbandry or an agricultural use of the land.
The Ohio Supreme Court reached the opposite result in Harris v. Board, 44 Ohio St. 2d 144, 148-50, 338 N.E.2d 763 (1975). This case involved breeding and raising of show dogs. The court found that dogs were domestic animals and breeding them fell under the definition of animal husbandry, a “branch of agriculture.”
Using the language from cases which consider what is the “use of the land for agricultural purposes” together with various statutory definitions, we hold that dogs do not fall into this category. Kansas greyhounds are regulated by the Kansas Racing Commission. This removes these animals further from the definitions of livestock and agriculture. We hold that raising and keeping greyhounds for racing or sale is not an agricultural use of the land and is subject to the zoning authority of K.S.A. 12-741 et seq.
Reversed. | [
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|
Larson, J.:
The father of Baby Boy W. appeals the trial court’s decision terminating his parental rights pursuant to K.S.A. 1993 Supp. 59-2136(h)(4) and (5).
The 16-year-old mother and 21-year-old father of Baby Boy W. began dating in December of 1991. They had been sexually active before the relationship ended after two and one-half months.
When the mother learned she was pregnant in March 1992, she told a relative of the father who relayed the information to him. The father called the mother a week later and made a general offer of support. He told her to let him know if she needed anything.
Conflicting testimony was given concerning additional contacts directly between the father and the mother. The father claimed he spoke with the mother four or five times and left several unretumed messages. The mother admitted receiving three or four calls which included offers of assistance by the father. The trial court found that after the initial conversation, the father did not talk to the mother until July or August of 1992.
In September of 1992, the father sent the mother a check for $50 which the mother kept and used when she needed it around Christmas of 1992. Baby Boy W. was bom in late October 1992.
The father’s parents went with the mother and her mother to the first prenatal doctor’s appointment. The father’s parents told the mother they would help out in any way on behalf of the father, but they did not come forth with anything specific. The father’s parents did not pay for any of the mother’s doctor’s appointments or her prescription vitamins, purchase food or clothes, pay any of her other living expenses, or otherwise offer specific sums of money to the mother. The father’s parents simply told the mother to let them know what she needed.
The father’s offer to the mother was that “if she needed anything to tell me I would do it.” The father did not offer to give the mother specific sums of money, take the mother to her doctor’s appointments, pay for the mother’s prescription vitamins, buy food or clothes, or pay any of her other living expenses. The mother received nothing from the natural father except the $50 check. During the time the mother was pregnant, the natural father lived with his parents, worked at a car dealership, and later worked for his father’s carpet cleaning business.
The mother did not want anything from the father and made no effort to follow up on his or his parents’ general offer of assistance. The mother believed that if she accepted anything from the father or his parents, it would give him rights to the child. The mother did not want the father to have rights to the child because it upset her to think about what she would have to go through to share the raising of the child with him. The father had proposed that after the child was bom he and the mother could alternate custody on a week-to-week basis. The mother wanted the child to be raised in a stable two-parent home.
Baby Boy W. was placed with the proposed adoptive parents whose petition for adoption was contested by the father. The trial court found the father had failed without reasonable cause to provide the mother with support in the six months preceding the child’s birth and that the father had abandoned the mother after he learned of her pregnancy. The father appeals.
K.S.A. 1993 Supp. 59-2136(h) states in relevant part:
“(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:
(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;
“In making a finding under this subsection, the court may disregard incidental visitations, contacts, communications or contributions.”
The father contends the trial court erred by concluding that his offer of financial assistance to the mother without actually tendering any money and without the mother s rejection, or without actually setting aside money for that purpose, was not sufficient to establish failure without reasonable cause to provide support under K.S.A. 1993 Supp. 59-2136(h)(4). The father argues that the mother interfered with and failed to cooperate with him, which he claims are significant factors in determining if his efforts were reasonable. The father defines the mother s interference and lack of cooperation as the rejection of every offer of assistance made by him or his parents on his behalf, with the motive to accomplish an adoption without his consent. He asserts that an actual tender of support would have been futile.
A trial court’s order severing a nonconsenting parent’s rights pursuant to K.S.A. 1993 Supp. 59-2136(h) must be supported by substantial competent evidence. In re Adoption of Baby Boy B., 254 Kan. 454, 460, 866 P.2d 1029 (1994); In re Adoption of Baby Boy S., 16 Kan. App. 2d 311, 312, 822 P.2d 76 (1991).
“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).
“This court will search the record only to determine whether substantial competent evidence exists to support the trial court’s findings, and will not weigh the evidence or pass upon the credibility of witnesses. The reviewing court must review the evidence in the light most favorable to the party prevailing below.” In re Adoption of F.A.R, 242 Kan. 231, 238-39, 747 P.2d 145 (1987).
“The term ‘support,’ as used in K.S.A. [1993] Supp. 59-2136(h)(4), does not mean total support for the mother, nor is it sufficient if it is incidental or inconsequential. ‘Support’ must be of some consequence and reasonable under all the relevant circumstances existing in the case.” In re Adoption of Baby Boy B., 254 Kan. 454, Syl. ¶ 3.
In determining whether a nonconsenting father has failed without reasonable cause to provide support for the mother during the last six months of her pregnancy, all the relevant surrounding circumstances must be considered. In re Adoption of Baby Boy B., 254 Kan. 454, Syl. ¶ 4. The court must determine whether the natural father has pursued the opportunities and options which were available to carry out his duties to the best of his ability. In re Adoption of Baby Boy B., 254 Kan. at 463. The mothers refusal of assistance offered by the natural father is a factor in determining if the father provided support to the mother. In re Adoption of Baby Boy B., 254 Kan. at 465.
We have reviewed the record and hold the trial court’s decision that the father failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth is supported by substantial competent evidence.
The record shows the mother never declined or rejected the only assistance, financial or otherwise, she received from the father, a $50 check. The only tender of support made by the father was not futile but was accepted by the mother. We cannot surmise that additional tenders of support would have been futile.
We hold the mother’s failure to act upon a general offer of assistance by not contacting the father and telling him what she specifically needed does not amount to interference or a refusal of financial help. Cf. In re Adoption of Baby Boy B., 254 Kan. at 464-65 (father had reasonable cause for not supporting mother more than he did; mother refused the natural father’s offer of $1,000 from his income tax refund and offer to pay her $1,100 for living expenses for the month after the baby was bom). The mother is not required to request support from the father.
We further hold to be without merit the . father’s alternative argument that he was not required to provide support to the mother because she was a minor who was supported by her mother and was receiving assistance from the adopting parents. K.S.A. 1993 Supp. 59-2136(h)(4) contains no such qualifying language.
Because we hold that substantial competent evidence exists to support the findings of the trial court under K.S.A. 1993 Supp. 59-2136(h)(4), we need not consider the fathers contention that the trial court erred by also concluding that under K.S.A. 1993 Supp. 59-2136(h)(5) he abandoned the mother after having knowledge of the pregnancy.
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|
Gernon, J.:
Larry D. Tittel, Ness County Attorney, appeals from a district court decision reversing his finding that the recall petitions submitted by Vicky Cline, Diane Dexter, and Dave Compton (Committee) regarding certain members of the Board of Education of U.S.D. No. 303 (Board) failed to state sufficient grounds for recall.
The Committee submitted recall petitions for three members of the Board to Tittel for his review pursuant to K.S.A. 25-4318. The petitions were identical, except for the name of the person sought to be recalled, and provided as follows:
“The undersigned hereby seek the recall of Mark Kerr from the Board of Education of Unified School District 303, Ness County, Kansas, on the grounds that:
“In April 1993 the Board of Education voted to implement a wrestling program for Ness City High School and Ness City Junior High. Subsequently and with participation by Mark Kerr, contracts for wrestling coaches were approved in the sum of approximately $4,918; 12 wrestling meets for Ness City High School and 6 wrestling meets for the Junior High were scheduled with other schools; and wrestling supplies were purchased for the sum of approximately $9,190. Outlay for the wrestling program for the 93-94 school year will equal approximately $14,108.
“At a special meeting of the Board of Education on September 13, 1993, Board Member Mark Kerr voted to discontinue the wrestling program notwithstanding the commitments to coaches and other schools and the costs already incurred with his approval. The agenda for the September 13 meeting did not inform the public that discontinuance of the wrestling program would be considered by the Board.
“Mark Kerr has ignored the plainly expressed desire of his constituents concerning the wrestling program. That, combined with Iris wasteful, arbitrary and secretive conduct as a member of the Board, demonstrates his incompetence to continue to serve.”
All three of those to be recalled had recently been elected to the Board and took office on July 1, 1993. The Board’s decision to create the new wrestling program had been made in April 1993, prior to the election.
On November 17, 1993, Tittel issued a letter to the members of the Committee regarding the recall petitions. Tittel found that based upon his examination of the petitions and his review of the law, the petitions were not sufficient for recalling the local officers. Noting that no misconduct was alleged, Tittel stated that an elected officer’s vote on a controversial issue was not sufficient grounds for recall.
Pursuant to K.S.A. 25-4331, the Committee then petitioned the district court for review of Tittel’s decision. Specifically, the Committee argued that Tittel was not cloaked with the authority to rule on the sufficiency of the grounds for recall and could only determine whether the form of the petition complied with the applicable statutes and whether the grounds for recall were alleged with sufficient particularity to allow for a response by the elected officers.
The district court held that whether recall is justified, as based upon the grounds set forth in a recall petition, is a matter to be decided by the voters and not the county attorney or the courts. The court found particularly persuasive the concluding sentence of K.S.A. 25-4302, which states: “No recall submitted to the voters shall be held void because of the insufficiency of the grounds, application, or petition by which the submission was procured.” (Emphasis added.)
The court concluded that “the grounds for recall as stated in the Recall Petitions filed by Plaintiffs are sufficient under K.S.A. 25-4302 in that each petition contains grounds of incompetence stated with particularity in not more than two hundred (200) words. The grounds alleged are sufficiently specific to allow the elected officials to respond.” Tittel appeals.
The Kansas Recall of Elected Officials Act, K.S.A. 25-4301 et seq., governs the procedure required for voters to exercise their right to recall public officials. This right is guaranteed by Article 4, Section 3 of the Kansas Constitution, which provides: “All elected public officials in the state, except judicial officers, shall be subject to recall by voters of the state or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by law.”
K.S.A. 25-4320 lists several requirements recall petitions must satisfy:
“(a) Each petition for recall of a local officer shall include: (1) The name and office of the local officer sought to be recalled; (2) the grounds for recall described in particular in not more than 200 words; (3) a statement that the petitioners are registered electors of the election district of tire local officer sought to be recalled; (4) the names and addresses of three registered electors of the election district of the officer sought to be recalled who shall comprise tire recall committee; (5) the statement of warning required in K.S.A. 25-4321, and amendments thereto; and (6) a statement that a list of all sponsors authorized to circulate recall petitions for such recall may be examined in the office of the county election officer where the petition is required to be filed. Each sponsor shall be a registered elector of the election district of the local officer sought to be recalled and of the county in which such sponsor circulates the petition.”
None of these requirements is at issue in the present case.
This case involves an interpretation of the language of K.S.A. 25-4302. Prior to 1987, this statute provided: “Grounds for recall are conviction of a felony, misconduct in office, incompetence or failure to perform duties prescribed by law. No recall submitted to the voters shall be held void because of the insufficiency of the grounds, application, or petition by which the submission was procured.” K.S.A. 25-4302 (Ensley 1986).
K.S.A. 25-4302 (Ensley 1986) was amended in 1987 as follows:
“Grounds for recall are conviction of a felony, misconduct in office, incompetence or failure to perform duties prescribed by law. The county or district attorney of the county where petitions are required to be filed shall determine the sufficiency of the grounds stated in the petition for recall of a local officer. In the case of a recall of the county or district attorney, a judge of the district court of such county shall designate an attorney to determine the sufficiency of the grounds stated in the petition for recall. Such attorney shall perform the duties imposed on the county or district attorney in the recall of other local officers. No recall submitted to the voters shall be held void because of the insufficiency of the grounds, application, or petition by which the submission was procured.” L. 1987, ch. 130, § 1; see K.S.A. 1987 Supp. 25-4302.
Prior to the adoption of this amendment, the Kansas Recall of Elected Officials Act did not expressly provide for a review of the “sufficiency of the grounds” stated in the recall petition.
Here, we are required to interpret the following sentence from K.S.A. 25-4302: “The county or district attorney of the county where petitions are required to be filed shall determine the sufficiency of the grounds stated in the petition for recall of a local officer.” (Emphasis added.)
Both parties offer differing interpretations as to the scope of this duty and the corresponding role of the county or district attorney in a recall action.
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 die district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
“ ‘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) (quoting West v. Collins, 251 Kan. 657, Syl. ¶ 3, 840 P.2d 435 [1992]).
“ 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, 626, 829 P.2d 561 (1992) (quoting Randall v. Seemann, 228 Kan. 395, Syl. ¶ 1, 613 P.2d 1376 [1980]).
The Committee contends that the county attorney has only a limited duty to determine whether recall petitions comply with the form provided in the statute. The Committee argues that this duty extends only to a determination of whether one of the grounds required by K.S.A. 25-4302 is alleged and whether the facts in support thereof are described with particularity. In other words, as long as there is an allegation of one of the grounds listed in K.S.A. 25-4302 and that allegation is described “in particular in not more than 200 words,” K.S.A. 25-4320, it is for the electors to decide whether the officers should be recalled as a result of the conduct alleged.
The Committee contends that the county attorney does not have the authority to exercise a right guaranteed to the voters by the Constitution, that this a political question and not a legal question, and, finally, that the merit and quality of the conduct alleged to demonstrate grounds for recall is an issue to be resolved by the voters.
Tittel argues that for the 1987 amendment to 25-4302 to have any meaning, the legislature must have intended county and district attorneys to assume more than a ministerial role in reviewing recall petitions. Tittel points out that prior to the 1987 amendment, the Act did not provide for any determination to be made regarding the sufficiency of the grounds alleged for recall.
Prior to the 1987 amendment, the couniy election officer was responsible for performing all of the work involved in verifying recall petitions.
“The county election officer of the county where petitions are required to be filed, with the assistance and cooperation of each other county election officer involved, shall determine the sufficiency of each petition for recall of a local officer. Within thirty (30) days of the date of filing, such county election officer shall review the petition and shall notify the recall committee and the local officer sought to be recalled whether the petition was properly or improperly filed. Such county election officer shall notify the recall committee that the petition was improperly filed if he or she determines that (a) there is an insufficient number of subscribing qualified registered electors, (b) the petition was filed within less than one hundred and eighty (180) days of the termination of the term of office of the local officer sought to be recalled, (c) the local officer sought to be recalled has been or is being subjected to another recall election during his or her current term of office, (d) petitions for the recall of other local officers serving on the same governing body have been properly filed and elections thereon have not been held and the number of such local officers equals a majority of the members of the governing body minus one or (e) the petition does not conform to any other requirement of this act.” (Emphasis added.) K.S.A. 25-4326.
The Committee argues that the 1987 amendment merely placed the duty of verifying whether the grounds alleged in a particular petition are grounds set forth in K.S.A. 25-4302 and whether the grounds are stated with sufficient particularity in not more than 200 words with-- the county attorney instead of the county election officer.
“ ‘It is presumed the legislature understood the meaning of the words it used and intended to use them; that the legislature used the words in their ordinary and common meaning; and that the legislature intended a different meaning when it used different language in the same connection in different parts of a statute.’ ” Bank of Kansas v. Davison, 253 Kan. 780, 788, 861 P.2d 806 (1993) (quoting Boatright v. Kansas Racing Comm’n, 251 Kan. 240, Syl. ¶ 8, 834 P.2d 368 [1992]).
“ In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be1 accomplished and the effect the statute may have under the various constructions suggested.’ ” State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994) (quoting Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 [1978]).
The legislative history of the 1987 amendment to 25-4302 indicates that the amendment was requested by the Secretary of State’s office in light of a decision made by a Butler County district judge who found that it was the county clerk’s responsibility to determine the sufficiency of the grounds asserted in the recall petition, presumably under K.S.A. 25-4326(e). The Secretary of State suggested an amendment providing that the district or county attorney make a determination regarding the sufficiency of the grounds for recall. Minutes of the Senate Elections Committee Meeting of March 18, 1987. The amendment was proposed in the hope that it would alleviate the number of lawsuits filed pursuant to K.S.A. 25-4331 by persons aggrieved by a determination made by the county election officer regarding the sufficiency of recall petitions. Att’y Gen. Op. No. 91-59.
The Kansas Attorney General’s office issued an opinion in 1991 which stated as follows:
“While the county or district attorney is obligated to determine the sufficiency of the grounds asserted in a petition seeking the recall of a local officer, the county or district attorney does not determine whether the grounds asserted should subject the local officer to recall. The electors are as qualified to determine the capability and efficiency of their elected officials, after giving those officials an opportunity to perform the duties of their offices, as they were when they first selected the officials to fill the positions. [Citation omitted.] The truth or falsity of the grounds must be determined by the electors. [Citation omitted.] Bather, the county or district attorney determines only whether the petition includes ‘the grounds for recall described in particular in not more than 200 words.’ K.S.A. 1990 Supp. 25-4320(a)(2).” (Emphasis added.) Att’y Gen. Op. No. 91-59, p. 5.
The attorney general interprets the amendment in the same manner as the Committee in the present case; a limited duty that merely checks form and word count. We agree.
This initial review by the district or county attorney, in addition to the review conducted by the county election officer, saves the public and local officers the time and expense of circulating and responding to a petition which is fatally defective. By performing this review, the county attorney is not determining whether the grounds asserted should subject a particular local officer to recall, but whether the facts stated in the petition allege one or more of the four statutory grounds for recall listed in K.S.A. 25-4302 with sufficient particularity in not more than 200 words. This ap pears to be the only reasonable interpretation of the language of the 1987 amendment.
One troubling question remains to be considered. The last sentence of K.S.A. 25-4302 states: “No recall submitted to the voters shall be held void because of the insufficiency of the grounds, application, or petition by which the submission was procured.” This statement conflicts with the earlier provision requiring the district or county attorney to determine the sufficiency of the grounds alleged in the petition.
Rather than treating this sentence in K.S.A. 25-4302 as mere surplusage, it can be understood to mean that, should the grounds later be determined to be insufficient after a recall election has already been held, the election cannot be voided. In the absence of any indication to the contrary, there is a presumption that the legislature does not intend to enact useless or meaningless legislation. The legislature is also presumed to intend that a statute be given a reasonable construction so as to avoid unreasonable or absurd results. See Todd v. Kelly, 251 Kan. at 515, 520. “ ‘The several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire statute if it is reasonably possible to do so/ ” Guardian Title Co. v. Bell, 248 Kan. 146, 151, 805 P.2d 33 (1991) (quoting Easom v. Farmers Insurance Company, 221 Kan. 415, Syl. ¶ 3, 560 P.2d 117 [1977]).
As a final matter, Tittel asks this court for guidance on what to do when, in his opinion, blatantly false statements are contained in the recall petitions. With regard to the present case, he argues that the minutes of the school board meetings demonstrate that several of the allegations contained in the recall petitions are false. Tittel suggests that he should have no duty to review petitions containing blatantly false allegations.
First, the minutes to which Tittel refers are attached only as an appendix to the appellant’s brief and, thus, cannot be considered by this court. Kansas Supreme Court Rule 6.02(f) (1994 Kan. Ct. R. Annot. 28) clearly states that material annexed to an appellate brief by way of an appendix is not a substitute for the record itself. See In re Appeal of News Publishing Co., 12 Kan. App. 2d 328, 333, 743 P.2d 559 (1987).
Moreover, the court’s opinion in Unger v. Horn, 240 Kan. 740, 742, 732 P.2d 1275 (1987), makes it clear that the truth or falsity of the allegations asserted in a recall petition is a matter properly left to the determination of the electorate.
In the present case, the recall petitions alleged incompetence, one of the four grounds for recall listed in K.S.A. 25-4302, and the allegations were described with sufficient particularity in not more than 200 words so as to allow the officers to respond. The district court’s decision reversing Tittel’s findings is affirmed.
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|
Rulon, J.:
Jillian T. Waesche and Georgina Adami appeal from a contempt citation. We reverse and remand with directions.
The facts are essentially undisputed and are as follows:
On July 27,1993, the State charged defendant, David Williams, with numerous offenses, including first-degree murder and rape. Acting Chief Public Defender Jillian T. Waesche and Assistant Public Defender Georgina Adami, appellants, represented Williams. On February 14, 1994, the defense filed a notice of intent to use an insanity plea. The public defender’s office scheduled and paid for a psychiatric examination of defendant. The State filed a motion to compel discovery of the report from the psychiatric examination. The State claims K.S.A. 1993 Supp. 22-3219 required the release of this psychiatric report.
Appellants refused to release the report to the State because the district court had not ordered the examination. Appellants also claimed the State’s request was premature because the defense had not decided whether to raise an insanity defense. The district court ordered the defense to make the report available by May 4, 1994.
Ultimately, the defense withdrew its notice of intent to use the insanity plea. On May 4, 1994, appellants notified the district court that an insanity defense would not be presented. Defense counsel requested that the court vacate its order to produce the psychiatric report. A hearing was held, and the district court ordered the report produced “whether it’s going to be used to not.” Appellants refused to comply.
During an off-the-record discussion, the district court and the State agreed the order to produce would be satisfied if appellants turned the report over to the court. Appellants refused to produce the report. The court found each appellant guilty of direct contempt and ordered the public defender’s office to pay $25 per day per attorney until the report was produced.
STANDARD OF REVIEW
Appellants argue this contempt finding should be set aside because the underlying court order to produce the report was erroneous. Specifically, appellants contend that a general discovery provision, K.S.A. 1993 Supp. 22-3212(c), applied after the insanity defense was withdrawn.
The standard of review for an order of contempt is abuse of discretion. In re Conservatorship of McRoy, 19 Kan. App. 2d 31, 33, 861 P.2d 1378 (1993). The appellate court reviews the record to determine if the district court’s exercise of discretion constituted reversible error. Edmiston v. First Nat’l Bank of Holcomb, 242 Kan. 13, 15, 744 P.2d 829 (1987); Electronic Realty Assocs., Inc. v. Gomez, 18 Kan. App. 2d 122, Syl. ¶ 1, 848 P.2d 458 (1993). Appellate review focuses on whether the facts of the case show conduct that constitutes contempt. State v. Pondexter, 225 Kan. 425, 429, 590 P.2d 1074 (1979). Transcripts from contempt hearings should be preserved in order to facilitate comprehensive review of the circumstances surrounding a contempt order. See Johnson v. Johnson, 11 Kan. App. 2d 317, 320-21, 721 P.2d 290 (1986).
“Whether a particular act or omission is contemptuous depends upon the nature of the act or omission as well as all surrounding circumstances, including the intent and good faith of the party charged with contempt.” (Emphasis added.) 19 Kan. App. 2d at 33 (citing Threadgill v. Beard, 225 Kan. 296, 304, 590 P.2d 1021 [1979]).
VALIDITY OF PRODUCTION ORDER
Contemptuous conduct is that which obstructs or tends to obstruct the administration of justice. 225 Kan. at 429 (citing In re Sanborn, 208 Kan. 4, 14-15, 490 P.2d 598 [1971]). Direct contempt occurs in the presence of the judge or during the sitting of the court. See K.S.A. 20-1202. Generally, if the contempt in question is a violation of an order made for the benefit or advantage of another party, the contempt will be considered civil. Electronic Realty Assocs., Inc. v. Gomez, 18 Kan. App. 2d at 125. Here, appellants refused to follow an order to produce made by the trial judge in open court.
The actions of appellants are not disputed. The question is whether the refusal to comply with the district court order can be excused by the circumstances surrounding the order to pro duce the report. Appellants’ primary argument is that the district court’s order to produce was erroneous. Our Supreme Court, however, has held a valid contempt order can be based upon failure to obey an erroneous order:
“Even if a court issues an erroneous order, the parties to the litigation must obey the order when it was within the court’s jurisdiction, and, for the sake of orderly administration of justice, any disobedience with that order may be punished as contempt.” Koch Engineering Co. v. Faulconer, 227 Kan. 813, 329-30, 610 P.2d 1094 (1980) (citing Small v. Small, 195 Kan. 531, 534, 407 P.2d 491 [1965]).
Generally, the appropriate method for challenging the validity of a court order is to challenge the order by moving the court to set it aside. See, e.g., State, ex rel., v. Engler, 181 Kan. 1040, Syl. ¶ 2, 317 P.2d 432 (1957).
Despite the above-noted general rule, our Supreme Court has indicated a willingness to review the merits of an order to produce underlying a contempt citation. See In re Pennington, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied 440 U.S. 929 (1979). In Pennington, a newspaper reporter refused to disclose the identity of a confidential source who provided information relevant to the defense in a first-degree murder trial. The district court found the reporter in contempt because the information was not protected by any interpretation of constitutional privilege. Pennington appealed and argued that the district court’s order should be reversed and the contempt citation vacated. 224 Kan. at 574.
In Pennington, this court and our Supreme Court reviewed the district court’s ruling on a claim of constitutional privilege. The Supreme Court discussed and specifically affirmed the lower court’s ruling as to the relevance of the information ordered to be produced. 224 Kan. at 577; see In re Pennington, 1 Kan. App. 2d 682, 573 P.2d 1099 (1977) (summarily affirming the trial court’s order). Our Supreme Court indicated the contempt citation was valid because Pennington voluntarily refused to comply with a district court order. 224 Kan. at 578.
The United States Supreme Court has recognized the .general validity of a contempt citation based upon an erroneous order. See Maness v. Meyers, 419 U.S. 449, 459, 42 L. Ed. 2d 574, 95 S. Ct. 584 (1975). The Maness Court however, created an exception to the stated general rule. In Maness, an attorney advised his client not to comply with an order to produce documents in a civil case. The attorney believed, in good faith, that the materials (pornographic magazines) would incriminate his client. 419 U.S. at 458. The trial judge found both the attorney and client guilty of contempt. The Court held it was necessary to evaluate the underlying discovery order because the Fifth Amendment’s protection against self-incrimination was involved. 419 U.S. at 461.
The Maness Court decided that pre-compliance review was appropriate because adherence to the challenged order could have caused “irreparable injury because appellate courts cannot always ‘unring the bell’ once the information has been released.” 419 U.S. at 460. The Maness Court reversed the challenged contempt citation, stating:
“[I]t appears that there was no avenue other than assertion of the privilege, with the risk of contempt, that would have provided assurance of appellate review in advance of surrendering the magazines. We are satisfied that petitioner properly performed his duties as an advocate here, and he cannot suffer any penalty for performing such duties in good faith." 419 U.S. at 470.
The exception crafted in Maness has been expanded by the Illinois state courts to create a clear rule for evaluating contempt citations arising from discovery orders. Consequently, in Illinois, refusal to comply at the risk of a contempt citation is an acceptable method for challenging the validity of a discovery order. See, e.g., CNR Invest. v. Jefferson Tr. & Sav. Bank, 115 Ill. App. 3d 1071, Syl. ¶ 8, 451 N.E.2d 580 (1983). If the underlying order is erroneous, the appellate court vacates the contempt citation. Anderson v. St. Mary’s Hospital, 101 Ill. App. 3d 596, 530, 428 N.E.2d 528 528 (1981).
Appellants argue the order here to produce the report in question violated the defendant’s Fifth Amendment protection against self-incrimination. We are convinced the United States Supreme Court’s decision in Maness supports our appellate review of the challenged production order.
Here, the district court held that K.S.A. 1993 Supp. 22-3219 required the defense to produce the psychiatric report. We must decide if the district court’s interpretation of the statute was correct. Statutory interpretation is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). Appellate review of a question of law is unlimited. See Hillman v. Colonial Penn Ins. Co., 19 Kan. App. 2d 375, 376, 869 P.2d 248 (1994).
K.S.A. 1993 Supp. 22-3219(1) prohibits the introduction of evidence of a mental disease that legally excuses criminal culpability unless a defendant files a timely notice of intent to raise an insanity defense. K.S.A. 1993 Supp. 22-3219(2) states:
“A defendant who files a notice of intention to assert the defense of insanity .. . thereby submits and consents to abide by such further orders as the court may make requiring the mental examination of the defendant and designating the place of examination and the physician or licensed psychologist by whom such examination shall be made. No order of the court respecting a mental examination shall preclude the defendant from procuring at such defendant’s own expense an examination by a physician or licensed psychologist of such defendant’s own choosing. ... A report of each mental examination of the defendant shall be filed in the court and copies thereof shall be supplied to the defendant and the prosecuting attorney.” (Emphasis added.)
Two rules of statutory construction are particularly applicable in our review. First, Kansas courts recognize a duty to give effect to the plain and unambiguous language of a statute. State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994). Second, the courts are to presume the legislature intended that a statute be given a reasonable construction in order to prevent unreasonable consequences. Todd v. Kelly, 251 Kan. 512, 520, 837 P.2d 381 (1992).
Here, appellants argue that K.S.A. 1993 Supp. 22-3219(2) does not require production of a report obtained independently by the defense after filing notice under K.S.A. 1993 Supp. 22-3219(1). Additionally, appellants argue this statute does not apply after the insanity defense has been withdrawn.
Appellants’ first argument is unpersuasive. The plain language of K.S.A. 1993 Supp. 22-3219(2) requires psychiatric reports to be furnished to the court and the opposing party when such reports are made after the filing of a notice of intent to plead insanity. The statute does not distinguish psychiatric exams ordered by the court from those ordered by the defense or prosecution; “each” report must be made available. K.S.A. 1993 Supp. 22- 3219(2). The district court acted correctly when the court initially ordered the defense to furnish the psychiatric report.
The district court erred, however, when it refused to reconsider the production order after defense counsel withdrew the notice of intent to plead insanity. K.S.A. 1993 Supp. 22-3219(1) prohibits admission of any evidence concerning an insanity defense unless a notice of intent to plead insanity has been timely filed or accepted by the court. After appellants withdrew defendant’s insanity notice, they became estopped from attacking the presumption of sanity surrounding defendant. K.S.A. 1993 Supp. 22-3219 no longer controlled the discovery of defendant’s psychiatric report after defendant’s notice of intent to plead insanity was withdrawn.
The spirit of a statute and the purpose to be accomplished by a statute are relevant factors when reviewing the construction of a statute. State v. Gonzales, 255 Kan. at 249. The clear purpose of K.S.A. 1993 Supp. 22-3219(2) is to provide the State and defense equal and adequate access to psychiatric information that serves as the foundation for an insanity defense. Absent an insanity defense, the access mandated by K.S.A. 1993 Supp. 22-3219 is no longer justified.
The State asserts that the report was once discoverable and should remain discoverable despite the withdrawal of the insanity defense. Criminal statutes are construed strictly against the State. State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993). Once the insanity defense was withdrawn, K.S.A. 1993 Supp. 22-3212(c), the general discovery statute for criminal actions, became applicable. That statute states that the criminal defense must permit State inspection of any medical reports, scientific reports, and other documents which the defendant intends to produce at trial, and which are material to the case and not unreasonably burdensome to the defense.
Appellants advised the district court that the psychiatric report would not be offered at trial and the examining physician would not testify. Moreover, the defense could only raise the issue of insanity upon filing and acceptance by the court of another notice of intent to plead insanity. Under the provisions of K.S.A. 1993 Supp. 22-3212(c), defendant’s psychiatric report was not discoverable by the State.
Defense counsel’s withdrawal of its notice of intent to plead insanity terminated the need to satisfy the requirements of K.S.A. 1993 Supp. 22-3219. The discovery rules expressed by K.S.A. 1993 Supp. 22-3212(c) were applicable to the State’s motion to compel discovery of defendant’s psychiatric report. The district court erred by ordering appellants to produce die report. Under the facts shown, appellants’ refusal to comply was based on a good faith belief that the district court’s erroneous order would violate constitutional protections guaranteed a criminal defendant. Consequently, appellants’ contemptuous actions are excusable. See Maness, 419 U.S. at 470.
In light of the above, we need not reach other issues presented.
We reverse the district court’s finding of contempt and remand the cause with directions that the district court vacate the contempt citation forthwith. ■ , | [
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Lewis, J.:
In 1972, Irene Murdock died testate. In her will, she created the “Leslie and Irene Murdock Educational Scholarship Fund.” The Fort Hays State University Endowment Association was named as trustee. In general, the trust was designed to provide scholarship funds for students from Ness County to attend Fort Hays State University. In this action, the trustee seeks to modify or release certain restrictions pursuant to K.S.A. 58-3607. The trial court denied the relief requested.
The record on appeal contains little, if any, evidence. We do not have, for instance, a copy of the decedent’s last will and testament. At the very best, we have counsel reading into the record what purports to be the residuary clause of that will. Since no one appeared to oppose the application, we are not inclined to accept that reading as evidence. We are being asked to render an opinion on an issue about which very little is said or divulged. The state of the record limits our decision to a significant degree.
It appears that the trust was created by the residuary clause of Irene Murdock’s will. Since we do not have access to the will', we cannot be absolutely certain of the language used. Apparently, the testator instructed her executor to establish “an educational scholarship fund similar to the Rebecca Dubbs scholarship fund.” The “Rebecca Dubbs Memorial Fund” was created in 1939. We do have in the record a number of documents which purport to be the Rebecca Dubbs scholarship trust.
We also have in the record a document prepared by the executor of Irene Murdock’s last will and testament. This document established the conditions of the trust. We have no way of determining whether the document is consistent with the wishes and desires of the decedent. This document was apparently drawn up some time after the death of Irene Murdock. The trustee, however, does not seek to reform the trust conditions.
Irene Murdock left the bulk of her estate to certain individuals for the period of their lifetimes. Upon the death of the life tenant, the property was to become a part of the residuaiy and, as a result, a part of the trust. It is apparent that for a good number of years, little, if anything, passed to the trust. However, the life tenants are now deceased, and the trust appears to have a significant amount of money to expend.
The trustee filed this action to modify or repeal certain of the trust provisions.
The trust document provides that the trust assets are to be deposited in time accounts in Ness County banks or used to purchase Kansas municipal bonds. The trustee seeks more freedom of investment and asks to be released from the investment restrictions noted above.
The trust agreement provides that the trustee is to provide scholarships to graduates of Bazine High School, Utica High School, Ransom High School, and Ness City High School. These scholarships are to be rotating — the first year a student from Ba-zine High School will receive the scholarship, the next year it will be a graduate of Utica High .School, the next year a graduate of Ransom High School, and the next year a graduate of Ness City High School. The following year, the cycle is to start all over again with a graduate of Bazine High School. The trust agreement goes on to provide that “no member of the family of a School Board member shall be eligible to receive the income.” The trustee sought release from the provisions of the trust requiring rotating scholarships on an annual basis and prohibiting families of school board members from receiving trust funds.
The record consists of a conversation between the trial court and counsel for the trustee. No witnesses were called and no evidence was presented on any of the issues raised by the trustee.
The trial court, after hearing the comments of counsel, denied the application of the trustee and held as follows:
“1. The Court is unaware of any law that would allow the modification of provisions of the Educational Trust in the absence of circumstances that would constitute a frustration of the purpose of the Trust.
“2. The Application of the Fort Hays State University Endowment Association and evidence proffered herein do not establish that the Trust purpose has been frustrated and, therefore, the Application to release restrictions should be and is hereby denied.”
We note that the attorney general was served with notice in this action as required by statute but filed a disclaimer of interest.
The net result is that not only was there no opposition in the trial court, only the appellant has filed a brief in this court.
THE MERITS
For the reasons stated in this opinion, we conclude that the trial court erred in its interpretation of the law regarding removal and modification of trust provisions. However, despite this error, we are unable to reverse the decision of the trial court. We cannot reverse because under any standard one might wish to apply, the trustee offered no evidence to justify modification. Therefore, even though the trial court may have announced the wrong reason, it did not err in refusing to modify or release the trustee from the provisions in question.
Since the question of the applicable standard for modification of trust provisions is one of first impression, we will deal with it in this opinion for future application.
The trial court held that it could not modify the trust provisions “in the absence of circumstances that would constitute a frustration of the purpose of the Trust.” The trustee suggests that this is the wrong standard, and we agree.
In 1973, Kansas adopted the Uniform Management of Institutional Funds Act, K.S.A. 58-3601 et seq., which is controlling upon the issues involved.
K.S.A. 58-3607 deals with “[r]elease of restrictions on use or investments” and provides:
“(a) A restriction on the use or investment of an institutional fund imposed by the applicable gift instrument may be released, entirely or in part, by the governing board with the written consent of the donor.
“(b) If consent of the donor cannot be obtained by reason of the death, disability or unavailability, or impossibility of identification of the donor, upon application of the governing board, a restriction on the use or investment of an institutional fund imposed by the applicable gift instrument may be released, entirely or in part, by order of the district court after reasonable notice to the attorney general and an opportunity for him or her to be heard, and upon a finding that the restriction on the use or investment of the fund is obsolete, inappropriate or impracticable. A release under this subsection may not change an endowment fund to a fund which is not an endowment fund.
“(c) A release under this section may not allow a fund to be used for purposes other than the educational, religious, charitable, or other eleemosynary purposes of the institution affected.
“(d) The provisions of this section do not limit the application of the doctrine of ctj pres.” (Emphasis added.)
This statute controls, and we hold that a restriction in a trust of the nature presently before this court may be released “upon a finding that the restriction on the use or investment of the fund is obsolete, inappropriate, or impracticable.” (Emphasis added.) This is the standard which should have been applied by the trial court in dealing with the trustee’s request for the release of the restrictions on investments. There is no requirement that a frustration of trust purpose be shown in order to release an investment restriction, and the trial court erred in concluding that such a showing was necessary.
The provisions of the Uniform Management of Institutional Funds Act would not apply to the trustee’s application to remove the rotating scholarship requirement and the provision prohibiting scholarships from being given to families of school board members. The trustee takes tie position that these restrictions frustrated the purpose of the educational trust since more money was now available than could be awarded.
This application seems to be an effort to apply the doctrine of cy pres. That is a recognizable doctrine in this state, and our Supreme Court recently examined the application of that doctrine as it now exists:
“The doctrine of cy pres permits a court to implement a testator’s intent and save a gift to charity by substituting beneficiaries when the named charitable beneficiary is unable to take the gift. In order for the doctrine to apply, several conditions must be met. First, the gift must be to a charitable organization for a charitable purpose. Second, it must be impossible, impractical, or illegal to carry out the donor’s stated charitable purpose. Finally, it must appear that the donor had a general charitable intent. The fundamental concept of the doctrine is that a donor may have a general charitable intent and that the particular charitable institution designated as recipient of the gift is only an agent for effectuating that gift. Therefore, when it becomes impossible for the gift to take effect exactly as the donor specified, the court must look for another agent, as nearly like the designated one as possible, that will receive the gift and effectuate the general intent expressed in the will or gift instrument.” In re Estate of Crawshaw, 249 Kan. 388, Syl. ¶ 4, 819 P.2d 613 (1991).
Under the doctrine of cy pres, it must be impossible, impractical, or illegal to carry out the donor’s stated charitable purpose. The few facts we have available indicate that the doctrine is not applicable. There is no impossibility of the gift or trust taking effect, and it is not illegal to carry out the donors stated charitable purpose. We conclude that under the facts shown, the doctrine of cy pres would not apply to entitle the trustee to a release from the two trust provisions now being discussed.
In any event, the trustee alleged that the restrictions frustrate the purpose of the educational fund. The trustee produced no evidence to prove that there was, in fact, any purpose of the educational fund being frustrated by the provisions in question. Neither do the allegations of the application allege facts which, if true, would meet the standard in question.
Having concluded that the trial court adopted the wrong standard in rejecting the application of the trustee, we still affirm the decision of the trial court. It is well established that a trial court’s decision may be upheld if the ultimate decision was right, albeit for the wrong reason. Bank of Kansas v. Davison, 253 Kan. 780, 792, 861 P.2d 806 (1993).
As we have indicated, the trustee presented no evidence on which the trial court could have granted it relief under any standard. There were no witnesses called and no evidence proffered to show that the restrictions on investments in the trust were obsolete, inappropriate, or impracticable. There were no witnesses called and no evidence proffered to show that the rotating schedule of schools and the prohibition of awarding scholarships to families of school board members either frustrated the purpose of the trust or made it impossible, impractical, or illegal to carry out the donor’s stated charitable purpose. There was a total failure of proof on the trustee’s allegations, and based on the lack of evidence presented, the trial court had no reason or basis on which to grant the relief requested.
We deal here with eliminating provisions in a trust document established in 1972. We must assume that these provisions reflect the intent and desire of the donor. It seems obvious that courts should not rewrite a donor’s trust agreement in the absence of compelling evidence to indicate that the provisions in question are “obsolete, inappropriate, or impracticable,” “frustrate the pur pose of the trust,” or make it “impossible, impractical, or illegal to carry out the donors stated charitable purpose.” In the absence of any evidence to this effect, the trial court had no choice but to deny the application. The elimination of restrictions and directions in a testamentary charitable trust should not occur unless the record shows that such action is necessary. In the instant matter, no such showing was made.
The only thing in the record that might support the allegations of the trustee are statements of its counsel. “Assertions or arguments of counsel before the trial court, the appellate court, or in an appellate brief are not evidence and do not remedy inadequacy in the record on appeal.” Kenyon v. Kansas Power & Light Co., 17 Kan. App. 2d 205, Syl. ¶ 3, 836 P.2d 1193 (1992). Therefore, we disregard the statements of counsel since such statements are not evidence.
It is possible that the trustee concluded that since there was no opposing party, it was not required to prove its allegations but could proceed as if it were taking a default judgment under the civil code. We do not agree.
These proceedings were conducted under the probate code and not under the civil code. It is our judgment that the concept of default is not well defined under the probate code. We conclude that the default of parties, for lack of a better word, does not relieve an applicant in a probate proceeding of the burden of proof.
K.S.A. 59-2213 provides:
“No judgment or decree shall be rendered in a probate proceeding without proof. The court shall have control of its orders, judgments, and decrees for thirty days after the date of the rendition thereof. Thereafter such orders, judgments, and decrees may be vacated or modified as provided by K.S.A. 60-260(b) of the code of civil procedure.” (Emphasis added.)
Before the adoption of the current probate code, issues litigated under the former code were seldom considered to be final. In 3 Bartlett, Kansas Probate Law & Practice § 1161, p. 15 (rev. ed. 1953), Bartlett states one reason for the old rule was that probate proceedings were frequently ex parte and judgments were rendered without notice and without proof. Bartlett then states:
“The probate code has wholly removed the . . . reason assigned (1) by making probate proceedings adversary from the beginning, (2) by providing for adequate notice of hearing in all cases to all interested parties, and (3) by providing that no judgment or decree shall be rendered in a probate proceeding without proof." (Emphasis added.)
In 3 Bartlett, Kansas Probate Law & Practice § 1194, the following is offered:
“No judgment or decree shall be rendered in a probate proceeding without proof. . . . One reason assigned by the courts for allowing collateral attacks upon probate judgments and decrees is that ‘the question may be decided by default, although the practice is a bad one, without hearing and without any actual notice.’
“Probate proceedings are, at least for the most part, proceedings in rem, and proof should be offered to sustain them. The mere fact that particular evidence is uncontradicted does not require the trial court to make a finding in accordance therewith.” (Emphasis added.)
It is apparent from a reáding of Bartlett that he believed the legislature had a definite reason for requiring that no judgment or decree should be rendered in a probate proceeding without proof. That rule is stated clearly by statute, and we believe it renders the concept of the default judgment nonexistent under the probate code.
In addition to the above, there is the rule that all probate proceedings are adversarial. In re Estate of Reed, 157 Kan. 602, 612, 142 P.2d 824 (1943); Egnatic v. Wollard, 156 Kan. 843, 854, 137 P.2d 188 (1943). See K.S.A. 59-2237; K.S.A. 59-2208. The concept of all probate hearings being adversarial hearings indicates to us that the default of an interested party does not change the nature of the hearing. Regardless of the issue and of the default of interested parties, proof is required before the proponent can carry the burden of proof.
It has been held that a waiver of notice by a party does not reheve the proponent of the burden of proof: “[The waiver of notice by a party] did not waive any substantive rights possessed by appellant and left appellee to sustain the burden of proving the will was entitled to probate under existing provisions of the probate code.” In re Estate of Reed, 157 Kan. at 613.
Reasoning by analogy from this decision, it seems reasonable to us to conclude that the default or failure of a party to attend a hearing does not relieve the proponent of the burden of proving the allegations which the proponent contends should carry the day.
We hold that, under the probate code, no judgment or decree can be rendered without proof. This statutory provision is not diluted or rendered irrelevant by the default of an interested party. Therefore, the mere fact that no one appeared to contest the trustee’s application did not relieve the trustee of the burden of proving its application by substantial competent evidence.
On appeal, the trustee appears to argue that the restrictions in question were not contained within the four comers of the last will and testament of Irene Murdock. This argument would be the basis of an action to reform the trust instrument if it is, in fact, supported by the evidence. The problem at this juncture is that we do not have in the record on appeal a copy of the last will and testament of Irene Murdock. Further, this issue was neither pled nor raised to the trial court, and no evidence was offered to sustain it. For those reasons, we consider this argument to be without merit.
The absence of evidence proving the allegations of the application left the trial court with no authority to grant the application. While the trial court did attempt to impose an incorrect standard, its decision to deny the application was nonetheless correct.
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Royse, J.:
Gaiy Eastridge was convicted by a jury of one count of arson, one count of conspiracy to commit arson, and one count of misdemeanor theft. He was sentenced to a controlling term of 8 to 24 years. He appeals his convictions and sentence, arguing (1) the convictions of arson and conspiracy to commit arson are unconstitutionally multiplicitous; (2) the district court erred in failing to intervene during the State’s closing argument; (3) the district court erred in admitting evidence of prior crimes committed by Eastridge; and (4) the district court erred in enhancing his sentence under the Habitual Criminal Act, K.S.A. 1992 Supp. 21-4504(c).
Firefighters were called to Paula Combs’ home in Olathe during the evening of January 23, 1992. After they put out the fire, the firefighters discovered two beer bottles in the garage. Both bottles were stopped with rag wicks and contained gasoline and an unknown white substance. Combs told the police that she believed Eastridge was responsible for the fire.
Eastridge was charged with arson and conspiracy to commit arson in connection with the fire. In addition, he was charged with misdemeanor theft for taking property belonging to Combs without her permission. The theft allegedly occurred a week before the fire. Following a trial, a jury found Eastridge guilty of all three offenses. The district court applied the Habitual Criminal Act to the arson conviction and imposed a controlling sentence of 8 to 24 years.
MULTIPLICITY
Eastridge’s first argument on appeal is that the convictions of arson and conspiracy to commit arson are unconstitutionally multiplicitous. Eastridge did not raise this issue in the district court. He correctly notes, however, that multiplicity may be raised for the first time on appeal if necessary to serve the ends of justice or to prevent denial of fundamental rights. State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984).
The Supreme Court has stated that multiplicity is “the charging of a single offense in several counts of a complaint or information.” State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984). The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the double jeopardy clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1992).
General principles regarding multiplicity were listed in State v. Games, 229 Kan. 368, 373, 624 P.2d 448 (1981):
“(1) A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the basis for more than one criminal prosecution.
(2) If each offense charged requires proof of a fact not required in proving the other, the offenses do not merge.
(3) Where offenses are committed separately and severally, at different times and at different places, they cannot be said to arise out of a single wrongful act.”
See State v. Warren, 252 Kan. 169, 175, 843 P.2d 224 (1992); State v. Woods, 250 Kan. 109, 119-20, 825 P.2d 514, cert. denied 121 L. Ed. 2d 100 (1992).
The traditional test of whether charged offenses are multiplicitous is whether each charge requires proof of a fact not required in proving the other. State v. Crawford, 253 Kan. 629, Syl. ¶ 5, 861 P.2d 791 (1993); State v. Mason, 250 Kan. 393, 398, 827 P.2d 748, (1992); State v. Scott, 250 Kan. 350, 356, 827 P.2d 733 (1992); State v. Woods, 250 Kan. at 119; State v. Zamora, 247 Kan. 684, 694, 803 P.2d 568 (1990); State v. Hobson, 234 Kan. 133, 137, 671 P.2d 1365 (1983).
With limited exceptions, the general rule is that a conspiracy to commit a crime is an offense separate and distinct from the crime that is the object of the conspiracy. State v. Matson, 14 Kan. App. 2d 632, 635, 798 P.2d 488 (1990), rev. denied 249 Kan. 777 (1991). See, e.g., State v. Hobson, 234 Kan. at 138. When the traditional test is applied in this case, it is apparent that the convictions for arson and conspiracy to commit arson were not multiplicitous.
In this case, the jury was instructed that the charge of arson required the State to prove the following elements:
“1. That the defendant intentionally damaged a building, to-wit: a residential house located at 12150 Timberlane Road by means of fire or explosive;
2. That the defendant did so without the consent of Paula E. Combs; and
3. That this act occurred on or about the 23rd day of January, 1992, in Johnson County, Kansas.”
Additionally, the jury was instructed that the charge of conspiracy to commit arson required proof of the following elements:
“1. That the defendant knowingly and intentionally agreed with Eric Riley to assist in the commission of the crime of arson;
2. That the defendant did so agree with the intent that the crime of arson be committed;
3. That the defendant or any party to the agreement acted in the furtherance of the agreement by transporting six long-neck beer bottles filled with gasoline and rag wicks by automobile to a location of 12150 Tim[b]erlane, Olathe, Johnson County, Kansas. Further, on January 23, 1992, the defendant acted in furtherance of the agreement by throwing a gas-filled beer bottle, commonly termed a [M]olotov cocktail, into the house of Paula Combs;
4. That this act occurred on or about the 23rd day of January, 1992, in Johnson County, Kansas.”
A review of the instructions makes clear that arson requires proof of damage by means of fire or explosion, an element not required to prove conspiracy. On the other hand, conspiracy requires proof of an agreement, an element not required to prove arson. In fact, the essence of conspiracy is the agreement. Matson, 14 Kan. App. 2d at 635. Because each charge requires proof of a fact not required in proving the other, the charges are not multiplicitous.
In support of his multiplicity contention, Eastridge relies on the two-prong test set forth in State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), for determining whether a crime is a lesser included offense. The Supreme Court did recently examine a multiplicity issue under the second prong of the Fike test in State v. Warren, 252 Kan. at 176. The court commented: “There is no doubt the concepts] of multiplicity and included offenses are related. Case law does not explain clearly the relationship between the two concepts and increasingly is blurring any distinction.” 252 Kan. at 177.
Fike described the two-prong test for lesser included crimes under K.S.A. 21-3107(2)(d) as follows:
“The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of the test, even if the statutory elements of the lesser crime are not all included in the statutory elements of the crime charged, the lesser crime may still be a lesser included crime under K.S.A. 1987 Supp. 21-3107(2)(d) if the factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime.” 243 Kan. 365, Syl. ¶ 1.
Application of the Fike test in this case produces the same result reached under the traditional test: the charges of arson and conspiracy to commit arson were not multiplicitous. Arson is a class C felony, K.S.A. 21-3718, and conspiracy to commit arson is a class E felony, K.S.A. 21-3302. Conspiracy to commit arson is not a lesser included offense of arson under the first prong of Fike, because conspiracy requires proof of an element not required to prove arson (an agreement).
Under the second prong of the Fike test, the factual allegations in the charging document and the evidence required to prove arson did not necessarily prove conspiracy. The complaint alleged that Eastridge did unlawfully, knowingly, willfully, and feloniously damage a residence, without the consent of Combs, by means of fire. The State presented evidence that Eastridge threw a Molotov cocktail into Combs’ garage window, causing a fire. The evidence required to establish arson in no way relied on evidence of an agreement. Thus, in proving the arson charge, the State did not necessarily prove the crime of conspiracy to commit arson. The convictions are not multiplicitous.
Eastridge argues that the State proved conspiracy by proving the intent element of the crime of arson. This argument is without merit. First, the second prong of Fike requires an examination of the evidence which “must be adduced at trial,” 243 Kan. at 368, to prove arson. “Multiplicity does not depend on whether the facts proved at trial are actually used to support the convictions of both offenses; rather, multiplicity turns on whether the necessary elements of proof of the one crime are included in the other.” (Emphasis added.) State v. Mason, 250 Kan. 393, Syl. ¶ 3; see State v. Hobson, 234 Kan. at 140.
Second, the State presented testimony that Eastridge said he had thrown a beer bottle at the house, it had bounced off the house, and he had retrieved it. Eastridge had recounted relighting the beer bottle, throwing it through the garage window, seeing the flames, and running away. This evidence established intent to commit arson, without regard to any evidence of agreement which may also have been introduced. Thus, the evidence necessary to establish intent to commit arson did not necessarily also prove conspiracy. The mere fact the evidence of a conspiracy was also presented at trial does not warrant the conclusion the charges are multiplicitous.
CLOSING ARGUMENT
Eastridge’s second argument on appeal is that the district court erred by failing to intervene when the State made an improper closing argument. Eastridge takes the position that the prosecutor’s closing statement deprived him of a fair trial. Eastridge acknowledges that he did not object to any of the closing argument at trial.
The Supreme Court has frequently commented that in criminal trials,
“the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Improper remarks made by the prosecutor in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and to deny the defendant a fair trial. [Citation omitted.]
“In closing argument to the jury, the prosecutor should not use statements calculated to inflame the passions or prejudices of the jury. The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury’s verdict. [Citation omitted.] In closing argument, an attorney may indulge in impassioned bursts of oratory or may use picturesque language as long as he or she introduces no facts not disclosed by the evidence. [Citation omitted.]
“In summing up a case before a jury, the prosecutor may not introduce or comment on the facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in discussing it.” State v. Duke, 256 Kan. 703, 718-20, 887 P.2d 110 (1994).
See State v. Hays, 256 Kan. 48, 68, 883 P.2d 1093 (1994); State v. Borthwick, 255 Kan. 899, 919, 880 P.2d 1261 (1994); State v. Ruff, 252 Kan. 625, 633, 847 P.2d 1258 (1993).
The Supreme Court has noted repeatedly the rule that reversible error may not be predicated upon a complaint of misconduct of counsel during argument where no contemporaneous objection to that conduct is lodged at trial. State v. Reed, 256 Kan. 547, Syl. ¶ 8, 886 P.2d 854 (1994); State v. Sexton, 256 Kan. 344, Syl. ¶ 7, 886 P.2d 811 (1994); State v. Crabtree, 248 Kan. 33, 37, 805 P.2d 1 (1991); see State v. Murrell, 215 Kan. 10, 12-13, 523 P.2d 348 (1974) (rule “firmly established”).
Eastridge counters with a statement which appears almost as often in Supreme Court decisions, describing
“ ‘the duty of the district courts in jury trials to interfere in all cases of their own motion, where counsel forget themselves so far as to exceed the limits of professional freedom of discussion. Where counsel refers to pertinent facts not before the jury, or appeals to prejudices foreign to the case, it is the duty of the court to stop him then and there. The court need not and ought not to wait to hear objection from opposing counsel. The dignity of the court, the decorum of the trial, the interest of truth and justice forbid license of speech in arguments to jurors outside of the proper scope of professional discussion.’ ” State v. Wilson, 188 Kan. 67, 73, 360 P.2d 1092 (1961).
See State v. Gibbons, 256 Kan. 951, 963-64, 889 P.2d 772 (1995); State v. Green, 254 Kan. 669, 685, 867 P.2d 366 (1994); Ruff 252 Kan. at 634-35; see also State v. Netherton, 128 Kan. 564, 573, 279 Pac. 19 (1929) (objection lodged after jury had retired).
In addition, Eastridge points out that our Supreme Court in Gibbons, 256 Kan. at 961, recently examined a claim of improper closing argument where no objection was lodged at trial. In Gibbons, 256 Kan. at 962, the defendant framed the issue as a question whether he was denied a fair trial by the trial court’s refusal to grant a mistrial. We note in passing that Eastridge made no request for mistrial in this case.
Eastridge complains that the State in its closing argument characterized Eastridge and the witnesses who corroborated his alibi as liars. Eastridge also says that by commenting on the credibility of the defense witnesses and telling the jury that those witnesses were lying, the State went outside the evidence and interjected its own opinion.
The Supreme Court recently discussed a similar argument. In State v. Whitaker, 255 Kan. 118, 132, 872 P.2d 278 (1994), the defendant argued for the first time on appeal that “comments by the prosecuting attorney vouching for the complaining witnesses’ credibility and casting doubt on Whitaker’s veracity when testifying were improper comments.” Whitaker also argued that the comments went beyond the evidence and prejudiced his right to a fair trial. 255 Kan. at 132-33.
The Supreme Court examined the language used by the prosecuting attorney in discussing the inconsistencies in Whitaker’s testimony:
“ ‘You were lied to during this trial. Somebody sat on that witness stand, took [an] oath to tell the truth, looked at all of you and out and out lied. Was it [the alleged victims] Trotter and Carr? Well now, let’s see. They both told the same story. They didn’t have time to concoct it. The police are on the scene like that (indicating) because an officer is shot. And strangely enough all the physical evidence backs up their story. We find the handcuffs, we find the chains, we find the tape, we find Ford Carr’s shoes where he has bailed out of the car, and we find the ‘phone cover, we find everything. There are 90 some exhibits that all match up with what Trotter and Carr told you happened. Even the defendant admits being there. There [are] a few problems that he couldn’t deal with when he testified. Did someone lie? Yeah. He is sitting right there (indicating). You see, the defendant told you — although he had studied the police reports, there was a couple of oops he made while testifying. . . .
‘And the empty holster? You’ve got to love the empty holster. He wants you to believe that he is being threatened somehow by Aldred Neal, although he wasn’t afraid, he wasn’t scared, he knew he wasn’t going to shoot him. But, he was being threatened. He gets away, goes into his house, clips on a holster and then can’t find his gun. And he gets back into the car with Aldred Neal who has a gun and who he is afraid of and wants Aldred Neal to see his holster and wonder if he has a gun? Come on. He had the holster because he had the gun. It fits the holster. There is no reason for Aldred Neal to have a .32. That is just a blatant lie. Afraid of him and hides in his house?
‘The one thing that he couldn’t handle when he testified, the one lie he hadn’t prepared, didn’t know how to deal with was, there was Marsha Woltman and Lee and Tom York. He couldn’t fit it into his story. You know, Mr. York sat there and told you, I am not a hundred percent sure, but that is the guy, the one in the purple shirt standing next to the guy with the briefcase, the guy in the purple shirt doing all the talking that we sent down to Ford Carr’s house where they opened a briefcase, pounded on the door and ultimately walked away. He was there and he just wants you just to ignore that. Mysteriously it just couldn’t have been him. And he can’t tell you who it was. He spends all the time before this happens and all the time after this happens with Aldred Neal, but somehow in this little 15 minute time span someone else dressed like him, looking exactly like him, shows up with Aldred Neal at Ford Carr’s house. He can’t explain that because he’s lying to you. He has sat here and bold face lied to you.
‘Do you want to put any weight into what a fiar tells you on the witness stand throughout his testimony? There are 20 some witnesses, 90 some exhibits, that also support what Trotter and Carr told you, as well as Officer Don Taylor. And there is no doubt that they planned and jointly committed each and every one of these crimes they are charged with.’ ” State v. Whitaker, 255 Kan. at 133-34.
After summarizing the relevant case law, the court held: “In this case, the comments improperly characterized Whitaker as a liar but did not so prejudice the jury against him as to deny him a fair trial.” 255 Kan. at 135.
The comments challenged by Eastridge are similar to those discussed in Whitaker. The prosecuting attorney reminded the jury it would be comparing witnesses and evaluating their credibility. The prosecutor reiterated the testimony of the State’s witnesses: Eastridge talked about putting gasoline and hair conditioner into beer bottles and throwing it at Combs’ house; East-ridge said they should wear gloves to avoid leaving fingerprints; Eastridge took a pair of gloves and a pistol when he left Harrisonville, Missouri; Eastridge said they would get gasoline along the way; upon his return, Eastridge stated that they had gone to Combs’ house and thrown gasoline-filled bottles at her house; and Eastridge stated they left when they determined the house was on fire. The prosecuting attorney pointed out that Eastridge and the defense witnesses claimed Eastridge was in Garden City, Missouri, at the time of the fire.
Obviously, Eastridge could not be in two places at once. The State’s position throughout the trial was that the Eastridge alibi was a fabrication. The prosecutor argued in closing that East-ridge’s witnesses were liars and they had lied to the jury. The prosecutor further argued it was unlikely the State’s witnesses had concocted their version of the events in order to get even with Eastridge and cover up Combs’ destruction of her own house.
Whitaker seems to require the conclusion that the State’s closing argument improperly characterized Eastridge as a liar. 255 Kan. at 135. In light of the entire record, however, the State’s closing did not so prejudice the jury as to deny Eastridge a fair trial. See U.S. v. Moore, 11 F.3d 475 (4th Cir. 1993) (no prejudice where improper closing argument did not mislead jury); U.S. v. Tullos, 868 F.2d 689 (5th Cir. 1989) (characterization of defendant as a liar in closing argument was based on the evidence); U.S. v. Sblendorio, 830 F.2d 1382, 1395 (7th Cir. 1987) ( characterizing defense as “phony,” “bogus,” “smoke screen” and “lame” did not deny defendant a fair trial); U.S. v. Moore, 710 F.2d 157, 160 (4th Cir. 1983) (no prejudice where jury had been instructed that credibility was for it to determine).
EVIDENCE OF PRIOR CRIMES
Eastridge argues on appeal that the district court violated his right to a fair trial by admitting evidence of prior crimes and wrongdoing contrary to K.S.A. 60-455. Eastridge complains of three particular statements contained in the record of trial: (1) accounts of statements by Combs to the police that she was afraid of Eastridge because he had bragged about burning down other homes, “to me he’s dangerous. . . . He’s a criminal”; (2) a witness’s statement that he could not sleep after the fire, because “I’d never been around anybody that’s done something like this. Never been around anybody that’s ever killed anybody”; (3) and testimony that Eastridge had been convicted of aggravated robbery and aggravated assault in another case.
Eastridge admits that no objection was lodged at trial to the first two statements listed above. “ ‘The admission of evidence, even if erroneous, may not be raised as an issue on appeal unless there appears of record a timely objection so stated as to make clear the specific ground of the objection.’ [Citation omitted.]” State v. Synoracki, 253 Kan. 59, 70, 853 P.2d 24 (1993).
With regard to the third statement listed above, the record reflects that Eastridge did object at trial on the grounds the question was beyond the scope of the examination and was improper. Eastridge did not object that the evidence violated K.S.A. 60-455. “The defendant cannot object to the introduction of evidence on one ground at trial and then assert a different ground on appeal." Synoracki, 253 Kan. 59, Syl. ¶ 10. Moreover, the record reflects that the district court sustained Eastridge’s objection, holding that the testimony was inadmissible hearsay. Eastridge now argues that the district court should have admonished the jury to ignore the statement. The failure to request such an admonition at trial bars our consideration of this argument. K.S.A. 60-404; Hogue v. Kansas Power & Light Co., 212 Kan. 339, 344, 510 P.2d 1308 (1973).
Eastridge attempts to avoid the contemporaneous objection rule by couching his argument as a constitutional issue. He contends the admission of evidence of prior crimes and wrongdoing denied him a fair trial. This claim was not asserted in Eastridge’s motion for new trial. “When constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review.” State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993). In any event, we do not consider that the evidentiary matters Eastridge complains about were such extreme errors as to deny Eastridge a fair trial.
SENTENCING
Eastridge’s final argument on appeal is that the district court erred in enhancing his sentence under the Habitual Criminal Act, K.S.A. 1992 Supp. 21-4504. That statute provides, in pertinent part, that upon motion by the State the trial judge shall enhance the defendant’s sentence
"[i]f [the] defendant is convicted of a felony other than a felony specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated having been convicted at least twice before for any such felony offenses or comparable felony offenses under the laws of another state, the federal government or a foreign government,” K.S.A, 1992 Supp. 21-4504(c).
The district court found Eastridge had prior convictions for felony theft, K.S.A. 21-3701, and burglary, K.S.A. 21-3715, in enhancing Eastridge’s sentence for arson, K.S.A. 21-3718. Eastridge attacks the enhanced sentence on the grounds that K.S.A. 1992 Supp. 21-4504 is ambiguous and that only arson may be considered in enhancing a sentence for conviction of arson. These arguments are without merit.
This court recently examined K.S.A. 21-4504 in State v. Hankins, 19 Kan. App. 2d 1036, 1041, 880 P.2d 271 (1994):
“This statute unambiguously provides for enhanced sentences for defendants who are convicted of felony offenses not specified in article 34, 35, or 36 of K.S.A. chapter 21, after ‘having been convicted at least twice before for any such felony offenses.’ The ‘any such felony offenses’ language pertains to any felonies not specified in articles 34, 35, or 36. This interpretation follows from the ordinary meaning of the words employed by the legislature. ‘Such’ in modifying ‘felony offenses’ refers to the kind of felony offenses previously discussed— felonies not listed in articles 34, 35, or 36 of K.S.A. chapter 21.
“The district court correctly used the Habitual Criminal Act to enhance Han-kins’ sentence. The jury found Hankins guilty of possession of cocaine and marijuana — crimes not listed in articles 34, 35, and 36 of K.S.A. Chapter 21. The trial court found Hankins had prior felonies for burglary and theft — crimes not listed in articles 34, 35, and 36 of K.S.A. Chapter 21. The district court did not err in imposing sentence under the Habitual Criminal Act.”
Hankins controls the sentencing issue in this case. The district court did not err in sentencing Eastridge for arson under the Habitual Criminal Act.
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Gernon, J.:
J. Mark Hixon, Shawnee County Appraiser, (Appraiser) appeals a district court order which granted the Archbishop for the Catholic Archdiocese of Kansas City, Kansas, (Archbishop) a tax exemption for a 2.8-acre tract used as a soccer field. The Board of Tax Appeals (BOTA) had previously denied the exemption, but the district court reversed BOTA’s decision and found that the property was used exclusively for an educational purpose and was, therefore, exempt from ad valorem taxation.
The Appraiser has conceded that the property has been used exclusively as a soccer field. Therefore, the only question before us is whether such a use is for an educational purpose.
The 2.8-acre soccer field is part of a larger 10.9-acre tract, the remainder of which, for the time period involved in this tax case, was planted with brome grass. The property was first used as a soccer field in 1990 when teams were barred from practicing at a city park due to excessive damage the practices were causing to the park field. Only teams from the Topeka Parochial League and the Topeka Sunflower League are allowed to practice on the field. A member of the parish whose church is adjacent to the field must either be a team member or coach in order for a team to use the field. However, there is no 'prohibition against anyone playing on the field when it is not in use by a scheduled team. The parish does not charge for the use of the field.
BOTA seemed to believe that the fact the soccer field was not associated with an educational institution was significant. At the time involved in this dispute, the church did not have a school as part of its facilities. However, except for the years directly involved in the case before us, the construction of a school on the site, which is now taking place, will render this matter moot.
The Archbishop requested the exemption pursuant to K.S.A. 1993 Supp. 79-201 Second, which exempts from ad valorem taxation “[a]ll real property, and all tangible personal property, actually and regularly used exclusively for literary, educational, scientific, religious, benevolent or charitable purposes, including property used exclusively for such purposes by more than one agency or organization for one or more of such exempt purposes.”
This statute is drawn from Article 11, Section 1, of the Constitution of Kansas, which provides in part: “All property used exclusively for . . . educational . . . [and] religious . . . purposes . . . shall be exempted from property taxation.”
BOTA denied the exemption, finding there was no evidence that the other teams allowed to use the soccer field were using it for educational purposes. The district court on appeal concluded that BOTA erroneously interpreted the law and reversed BOTA’s decision. The district court determined that qualification for an educational use exemption is not dependent upon the subject of the property being associated with a school and that physical training serves educational purposes.
This court must make the same review of the Board’s action as did the district court. See 537721 Ontario, Inc. v. Mays, 14 Kan. App. 2d 1, 2, 780 P.2d 1126, rev. denied 245 Kan. 785 (1989).
The question before us is whether the taxpayer’s soccer field qualifies for the educational-use exemption from taxation pursuant to K.S.A. 1993 Supp. 79-201 Second.
A number of general rules applicable in this regard are found in In re Tax Appeal of Derby Refining Co., 17 Kan. App. 2d 377, 380-81, 838 P.2d 354 (1992), rev. denied 252 Kan. 1092 (1993):
“In Kansas, taxation is the rule and exemption is the exception. Assembly of God v. Sangster, 178 Kan. 678, 680, 290 P.2d 1057 (1955). The burden of establishing an exemption from taxation is on tire party claiming the exemption. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 454, 691 P.2d 1303 (1984). One who claims a tax exemption must bring himself clearly within the exemption provisions of the statute. Warren v. Fink, 146 Kan. 716, Syl. ¶ 1, 72 P.2d 968 (1937). Statutory exemption provisions are strictly construed against the party requesting exemption. Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 635, 694 P.2d 462 (1985). All doubts concerning exemption are to be resolved against the exemption and in favor of taxation. Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, 851, 473 P.2d 1 (1970).”
Both BOTA and the district court based their decision in part on National Collegiate Realty Corp. v. Board of Johnson County Comm’rs, 236 Kan. 394, 690 P.2d 1366 (1984) [National Collegiate]. In that case, the National Collegiate Realty Corporation sought an exemption from ad valorem taxation pursuant to K.S.A. 1983 Supp. 79-201 Second (now K.S.A. 1993 Supp. 79-201 Second) for the national headquarters of the National Collegiate Athletic Association (NCAA) in Johnson County, Kansas. BOTA denied the exemption, concluding that the property was not being used exclusively for educational purposes. 236 Kan. at 395.
The Kansas Supreme Court reversed this ruling by BOTA, concluding that the activity conducted at the headquarters of the NCAA qualified as an exclusively educational use. 236 Kan. at 404-05. In so doing, the court endorsed a broad definition of “education” accepted by other courts and legal authorities. For example, the court cited with approval Mtr. of Syracuse Univ., 59 Misc. 2d 684, 300 N.Y.S.2d 129 (1969), which defined “ ‘educational’ ” as “embracing mental, moral and physical education.” 236 Kan. at 400. The court also cited Albach v. Odle, 531 F.2d 983 (10th Cir. 1976), which described education as follows:
“ ‘The educational process is a broad and comprehensive concept with a variable and indefinite meaning. It is not limited to classroom attendance but includes innumerable separate components, such as participation in athletic activity and membership in school clubs and social groups, which combine to provide an atmosphere of intellectual and moral advancement.’ ” 236 Kan. at 400.
The Kansas Supreme Court concluded that the various activities of the NCAA, including rule-making, publication and dissemination of information, investigation of recruiting violations and discipline thereof, and promoting championship events, were educational purposes within the meaning of 79-201 Second. 236 Kan. at 404-05.
It is clear, therefore, that affiliation with an educational institution is not a requirement for exemption under National Collegiate.
Other courts have defined educational purposes.
In Boney v. Kinston Graded Schools, 229 N.C. 136, 140, 48 S.E.2d 56 (1948), when the question of defining an educational purpose was partially at issue, the court there cited the concept of education expressed by the Montana Supreme Court as follows:
“ ‘By its voluntary act, the state has assumed the function of education primarily resting upon the parents, and by laws on compulsory education has decreed that the custody of children be yielded to the state during the major portion of their waking hours for five days a week, and, usually, nine months in the year. In doing so, the state is not actuated by motives of philanthropy or charity, but for the good of the state, and, for what it expends on education, it expects substantial returns in good citizenship. With this fact in mind, it is clear that the solemn mandate of the Constitution is not discharged by the mere training of the mind; mentality without physical well-being does not make for good citizenship — the good citizen, the man or woman who is of the greatest value to the state, is the one whose every faculty is developed and alert. Education may be particularly directed to either mental, moral, or physical powers or faculties, but in its broad est and best sense it embraces them all.’ McNair v. School District No. 1 of Cascade County, 87 Mont. 423, [428,] 288 P. 188, 69 A.L.R. 866.”
In Burgoon et al. v. Z. H. Bd. of Charlestown T., 2 Pa. Commw. 238, 240, 277 A.2d 837 (1971), a Pennsylvania appellate court held that an equestrian center with the stated purpose of “ ‘instructing pupils in the techniques of horsemanship’ ” constituted a special exception for zoning purposes as an “ ‘educational use.’ ” The court stated: “In its ‘broadest sense’ the term ‘educational use’ in the . . . ordinance encompasses institutions which conduct moral, intellectual, or physical training. The court below erred in demanding specifically classified training in every phase of academic pursuit.” 2 Pa. Commw. at 244-45.
Given the broad definition of “educational use” as stated by the Kansas Supreme Court in National Collegiate and in the courts of North Carolina and Pennsylvania as stated above, we conclude the “educational use” exception has been sufficiently met for the purposes of the statutes in the case before us.
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The opinion of the court was delivered by
Porter, J.:
The appellees recovered a judgment against the appellant in a suit in the district court of Miami county upon the covenants of warranty of title in a bill of sale of seventy-one steers. The bill of sale was in writing, and was executed on February 14,1900. At that time the First National Bank of Cobleskill, New York, held a chattel mortgage on the steers, and subsequently recovered them from the appellees in a suit in the district court of Reno county. The judgment in that case was affirmed. (Dendy v. Bank, 76 Kan. 301.) After the decision of the district court of Reno county the appellees sued Russell in the district court of Miami county on the covenants of title, and he answered setting up an oral agreement with them that no liability should attach to him by reason of the bill of sale until after the final termination of the litigation between the appellees and the bank. The district court decided in his favor and held that the appellees were not entitled to prosecute the action at that time. That case was likewise appealed and the judgment affirmed. (Dendy v. Russell, 67 Kan. 721.)
The litigation with the bank of Cobleskill having terminated in favor of the bank, the appellees again brought suit upon the covenants of title in the bill of sale. In his answer the appellant takes a position inconsistent with that taken when the first suit was brought, and now claims that the statute of limitations has barred the action. This, of course, he can not be permitted to do. The decision in the first case had the effect to suspend the right of the appellees to sue on the bill of sale, and while they were prevented from maintaining the action the running of the statute was tolled. This seems too plain to require the citation of authorities.
The court properly sustained an objection to the in troduction of testimony under the sixth defense, in which the appellant pleaded the oral agreement not to sue on the bill of sale until the termination of the litigation over the steers and set up a counter claim for damages for the failure to keep the agreement and for expenses, attorney fees and damages in defending the former action. There is nothing to suggest that the former action was not prosecuted in good faith, and the answer nowhere alleges malice or want of probable cause. Where a person has been sued in a civil action he can not, in the absence of a showing of malice, maintain another action to recover damages on the ground that the first action should not have been brought. (Deere v. Spatz, 78 Kan. 786. See, also, Lake v. Hargis, 82 Kan. 711.)
If the appellant ever had a claim arising out of the breach of the oral agreement it accrued when the first action terminated, and is barred by the statute of limitations. We are not advised upon which ground the court sustained the objection, but either was sufficient. None of the defenses set up by the appellant possesses any merit, and the judgment is affirmed. | [
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'The opinion of the court was delivered by
BURCH, J.:
A complaint was filed before a probate judge, as judge of the juvenile court, charging the petitioner with causing and contributing to the delinquency of a female child under the age of sixteen years. (Laws 1907, ch. 177, § 1, Gen. Stat. 1909, § 5114.) A warrant was duly issued to the sheriff, who took thé petitioner into custody and brought him before the court on January 11, 1911. The petitioner furnished bail, was discharged from custody, and the hearing was continued to January 23. On that day a motion was made to quash the complaint, on the ground that the statute under which the proceeding was commenced is unconstitutional. The motion was denied and the cause was again continued. It is still pending and undetermined. Under these circumstances the proceeding here is virtually an appeal from an order denying a motion to quash pending the trial. The writ of habeas corpus is not designed to perform any such function. The petitioner should first exhaust his or dinary remedies. Although the court has held the statute to be constitutional on a motion to quash, the ruling is not final, and it will not be assumed that ultimately an unwarranted judgment will be pronounced.
Section 699 of the present code of civil procedure (former code, § 671, Gen. Stat. 1901, § 5167) provides as follows:
“No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: . . . Fourth, upon a warrant or commitment issued from the district court or any other court of competent jurisdiction upon an indictment or information.”
In the case of In re Gray, 64 Kan. 850, it was held that a commitment issued from a court of competent jurisdiction, upon a complaint which in that court corresponds to an indictment or information, is within the statute. The syllabus reads as follows:
“By the provisions of section 671 (Gen. Stat. 1901, § 5167) of the code, courts and judges of this state are without power to inquire into the constitutionality of a city ordinance upon the application of one arrested for a violation of such ordinance who, in default of recognizance, is committed to the city jail to await a speedy trial for the offense charged.”
In the opinion it was said:
“The lawmaking power of this state has spoken in emphatic language. This language must be obeyed. The reason for the limitation placed upon the power to issue this writ, if reason need to be sought, is apparent in this case. The court of exclusive original jurisdiction was proceeding with dispatch in the usual and ordinary course by law provided to give the petitioner a speedy trial. If, as he contends, the ordinance under which he was arrested is unconstitutional and void, it will be presumed that the court wherein his case was pending will so hold, and should the court err in its ruling the petitioner has his right of appeal for the correction of errors until this court is reached.” (p. 854.)
(See, also, In re Terry, 71 Kan. 362.)
The uncontradicted return to the writ shows that the petitioner has not been in the sheriff’s custody since he gave bond for his appearance. Indeed, he does not appear to be under any restraint except a moral restraint, from which he can not be relieved by habeas corpus. (The Territory, ex rel., v. Cutler, McCahon, 152, 1 Kan. [Dass. ed.] 565.) Therefore the proceeding is dismissed at the cost of the petitioner. | [
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The opinion of the court was delivered by
Benson, J.:
The plaintiff asks for a writ of mandamus to compel the defendant to publish six certain bills passed by the legislature at the session of 1911, which it is alleged are public statutes. Five of the. bills, having been duly passed by the senate and house, enrolled and certified, were presented to the governor on March 18. The legislature adjourned on March 15, at 6 o’clock, p. M., and on that day the governor sent the bills without his signature to the secretary of state with a communication stating that they had. been received only two days before the final adjourn ment of the legislature, and not being signed by him did not become laws, referring to section 14 of article 2 of the constitution, which provides:
“If any bill shall not be returned within three days (Sunday excepted) after it shall have been presented to the governor, it shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent its return, in which case it shall not become a law.”
The contention of the attorney-general is that the period of three days referred to in the above provision is to be computed by including the day on which the' bill was presented to the governor, and that the time expired on the day he sent the bills to the secretary, that is to say, that the 13th, 14th and 15th days of March should be counted, thus making up the constitutional period, and that as the bills were not returned to the house within that time they became laws under the provision above quoted. The rule for the computation of time in certain cases, as announced by this court, is that when the computation is to be made from an act done, or from the time of an act, the day on which the act is done is to be included, but when the computation is from a date or the day of a date the •day of the date is excluded. (Coal Co. v. Barber, 47 Kan. 29; Kansas City v. Gibson, 66 Kan. 501.) This distinction does not prevail in all the states, but the general rule need not be reconsidered here. The clause in question must be interpreted as it was intended when the constitution was adopted. The meaning of a constitution is fixed when it is adopted, and afterward when the courts are called upon to interpret it they can not assume that it bears any different meaning. (Black, Inter, of Laws, § 9; 1 Story on the Const., 5th ■e'd., § 427.) The rules for the computation of time declared by this court in the cases referred to having "been announced long after the adoption of the constitution, are not necessarily controlling upon the ques tion now presented. The federal constitution and the constitutions of several of the states containing provisions similar to the one quoted above were before the convention that framed our constitution; and the constitution of the United States was referred to in the debates as a model for this clause. (Proceedings and Debates of the Kan. Const. Conv. pp. 58-55.) It may be fairly presumed that any judicial interpretations previously given to like constitutional provisions were known to and considered by the members of the convention, and that the language used was employed in the sense in which it had been thus judicially interpreted. In Price v. Whitman, 8 Cal. 412, in an opinion by Mr. Justice Burnett, in the year 1857, construing this provision of the'constitution of California, it was said:
“On the third day of April, 1856; a bill, which had duly passed both branches of the legislature, was presented to the governor. The governor returned the bill to the senate, in which it originated, with his objections, and the veto was concurred in by that body. The journal of the senate shows that the bill was returned on the fifteenth of the same month. . . . The third day of April being Friday, there were two Sundays intervening between the third and fifteenth. . . . The seventh section of the fourth article of the -constitution provides that if any bill presented to the governor, ‘shall not be returned within ten days after it shall have been presented to him (Sundays excepted), the same shall be a law, in like manner as if he had signed it, unless the legislature, by adjournment, prevent such return.’ . . . The two intervening Sundays not being counted, the only question is, whether the return on the fifteenth was within the ten days allowed by the constitution; and the answer to this question will depend upon whether the first and' last days be both counted. If both are included, then the bill was not returned in due time, but if either be excluded, the bill did not become a law by lapse of time. . . ' . It would be impracticable to lay down any rule in advance, applicable to every case that may arise. "When the entire validity of an instrument or a title must fail, and the true intention of the parties be defeated unless the first day be included, then it should be done.
“But when a certain time for deliberation is given, the exclusive rule should be adopted. It was doubtless the intention of the framers of the constitution, not only to fix a definite time within which the governor should return the bill, but also to allow him ten full days for deliberation. If this were not so, Sundays would not have been excluded. And as a fraction of a day can not be counted, by excluding the first and counting the last day, the full time will be in general allowed the executive. This rule substantially allows, the governor the same time as if it were computed from the exact moment the bill w.as presented, to the exact time when returned. It is a rule more in consonance with the reason of the case, and the fair intent of the constitution. It also accords with the rule in civil practice in our courts. Under all the circumstances, we think it the most satisfactory.” (pp. 414, 415, 417.)
Similar clauses in the constitutions of several other-states existing at the time of the adoption of the Kansas constitution have been construed since in the same way as in California. (The People, etc., v. Hatch, 33 Ill. 9; Corwin v. Comptroller General, 6 S. C. 390; Beaudean v. The City of Cape Girardeau, 71 Mo. 392; Hyde v. White, 24 Tex. 137; State ex rel. State Pharmaceutical Association et al. v. Secretary of State, 52 La. Ann. 936.) The same interpretation has been given to like clauses in constitutions adopted since our own. (Capito v. Topping, 65 W. Va. 587; Computation of Time, 9 Colo. 632; Carter v. Henry, 87 Miss. 411.) In The People, etc., v. Hatch, 33 Ill. 9, the matter was thoroughly considered. The provision there considered was:
“If any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have-been presented to him, the same shall be a law, in like mariner as if he signed it, unless the general assembly shall, by their adjournment, prevent its return.” (p. 134.)
The court held that the day on which the bill was presented should be excluded, and said:
“But to prevent the evils of hasty, illy considered legislation, they conferred upon the governor the power to arrest the passage of a bill until his objections could be heard, and the bill be again considered and adopted. As the best means of accomplishing this, and of preventing the adoption of injurious measures, they gave to the governor ten days, exclusive of Sundays, in which to bestow that careful examination and consideration so essentially necessary to determine the effects and consequences likely to flow from the adoption of a new measure. This is the duty imposed, and it is one that must be performed. And the time allowed for the purpose can not be abridged, or the provision thwarted, by either accident or design. The use of the whole time given to the governor must be allowed. The constitution has spoken and it must be obeyed. The constitution in this case has allowed to the governor ten days within which to act, and they must be held to be full and complete days, not parts of days. When a given number of days are named, no one could understand that it was a less period of time than is embraced in the number mentioned. . . . The framers of that instrument seem to have used every precaution and reasonable effort to avoid obscurity, and as far as possible to avoid necessity for construction. This is manifested in this very section, where Sundays are in terms excluded from the computation, and yet in law they would generally be excluded, as they are not judicial days, or days upon which the law will require performance of any act. No authority is referred to, nor am I aware that any exists, which limits the term to a shorter or different period of time than its natural or popular meaning.” (pp. 136, 137.)
It is suggested that the clause must have been inserted with a view to the application of the common-law rule, as it was afterward declared to be in this state by the decisions of this court first cited. It must be remembered, however, that there was and is a contrariety of views as to the rule of the common law in such cases (28 A. & E. Encycl. of L. 211), and it by no means follows that it was then understood by the members of the constitutional convention or the people to be as since declared by this court. The constitution must be interpreted liberally to carry into effect the principles of government which it embodies. It deals broadly with general subjects, and its language should not be interpreted in any narrow, refined or subtle sense, but should be held to mean what the words imply to the common understanding of men.
“In interpreting clauses we must presume that words have been employed in their natural and ordinary meaning. As Marshall, C. J., says: The framers of the constitution, and the people who adopted it, ‘must be understood to have employed words in their natural sense, and to have intended what they have said.’ ” (Cooley’s Const. Limit., 7th ed., p. 92.)
“Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common sense, and can not be presumed to admit in them any recondite meaning or any extraordinary gloss.” (1 Story on the Const., 5th ed., § 451.)
The words “within three days after it shall have been presented” (Const, art. 2, § 14) would indicate to people of common understanding that the governor was to have the full three days. In view of the highly important nature of his duties, as a branch of the lawmaking power, and in view of the interpretation that had already been placed upon like language in California, and many decisions applying the same interpretation to other instruments, • it is believed that it was intended that the governor should have three full working days to consider and act upon a bill. (Stinson v. Smith, 8 Minn. 366.)
The general rule (where the rule of the code does, not apply) to include the day on which the act is done in the computation of time from or after an act or event, is not inflexible. When not expressly declared to be inclusive or exclusive the words “after,” “from,” “subsequent,” and the like are susceptible of different significations and are used in different senses, having an exclusive or inclusive meaning according to the subject matter, context, and the purpose to be accomplished. (Note in 49 L. R. A. 193, 243, and cases there cited.) There is no abstract right or wrong in any method of computation. (Warner v. Bucher, 24 Kan. 478.) Fractions of a day may be considered when necessary to do justice in the particular case. (Coal Co. v. Barber, 47 Kan. 29.)
“In some cases where the time is to be computed from some event or some act done, the day within which the event transpired or the act was done is also to be excluded.” (English v. Williamson, 34 Kan. 212, 215.)
In the federal constitution, the period for the consideration of a bill by the president is limited to ten days after it is presented to him. The section containing this clause was debated in the constitutional convention, and finally when the report of the committee on style was being compared, Mr. Madison moved to insert the words “the day on which” between the words “after” and “it,” but Mr. Morris said the amendment was unnecessary as the law knows no fractions of days. Members grew, impatient and the motion was lost. (The Growth of the Const, by William M. Meigs, in 8 Fed. Stat. Anno. p. 141.) Had the amendment been made the clause would have been, “if any bill shall not be returned by the president within ten days after (the day on which) it shall be presented to him the same shall become a law.” The proposed amendment is shown in the parenthesis. In this form the day of presentation would have been excluded without question, but it seems that the conven tion was satisfied with Mr. Morris’s suggestion that the amendment was unnecessary to give it this meaning. We do not find that a different interpretation has been given to similar constitutional provisions by any court except in New Hampshire (Soldiers' Voting Bill, 45 N. H. 607), where the contrary view was taken, although as stated in the opinion it was not necessary to the decision. It is true that that decision has been cited approvingly by this court, but not in cases involving constitutional interpretation, nor in situations .showing an intent to exclude the day of an act or event from the computation.
The question under consideration arose in the senate of the United States upon a message from the president on January 24, 1868, giving as a reason for not returning a bill that it had been presented to him on the 11th day of December and that the congress had adjourned on the 20th day of that month, which he said was less than ten days after its presentation. Senator Edmunds, chairman of the judiciary committee, referred to a New Hampshire decision indicating a contrary rule — but afterward, upon reference of the message to that committee, reported a bill declaring that time in such cases should be computed by excluding the day on which a bill is presented to the president, and including the tenth day thereafter. The bill passed the senate, but failed to pass the house. (4 Hinds’ Precedents, § 3493.) The incident is significant as showing how the president, the senate and its judiciary committee construed the clause in question.
Considering the policy of the constitution with re■spect to the enactment of laws, and the probable understanding of the language in question by the people in adopting it, it is held that the three days limited for the action of the governor upon bills should be computed by excluding the day on which they are presented to him. It follows that the five bills presented to the governor on the 13th day of March did not become laws, the legislature having adjourned on the 15th day of that month.
The other bill is house bill No. 616, relating to the taxation of legacies and successions. It was passed on March 4, signed, certified, and presented to the governor on' March 9. On that day the governor returned it to the house, with his objections, to which was added the following:
“I recommend that you either strike out section 8 of this bill or refund to persons of small means the money which should never have been placed under the provisions of any inheritance tax law, and which is now in the state treasury to the amount of approximately $85,000.
“I do not want to veto this bill but I want to make it more-equitable and just.”
On the same day the house adopted a resolution recalling the bill and requesting the governor to return it to the house, which he did on the same day. On the next day, March 10, without having taken any further action upon it the house, through its chief clerk, again presented the bill to the governor. On March 14 the governor again returned the bill to the house without his approval, but with a message stating his objection thereto. No action was taken in either house after the bill was so returned. Excluding the day upon which it was last presented, and Sunday the 12th, and including the day of its return, the bill was in the governor’s hands, March 11, 18 and 14, and was returned with his objections within the three days allowed by the constitution within the rule just stated. It is further contended by the attorney-general, however, that the bill must be considered as being in the governor’s hands all the time from the 9th day of March, when it was first presented, until its final return on the 14th. This contention is made upon the ground that there was no authority to recall the bill from the governor’s hands, and that its return had no legal effect. •This is the view taken by the court of appeals of New York, where it was said in a similar case that:
“Although each house shall determine the rules of ‘its own proceedings,’ no rule for such a proceeding as that of sending for a bill in the possession of the governor has been shown to exist; besides, the bill at that time had become the act of both houses, and neither had then any further control over it. The act of courtesy of the governor in returning to the assembly the bill, at their request, conferred no power upon the house of assembly to act further upon it. . . . If the assembly possessed the power of recalling bills from the governor, after being passed by both houses and sent to him, it is not found in parliamentary law, and no custom of that kind is shown.” (The People v. Devlin, 33 N. Y. 269, 277.)
The same rule was declared in Virginia, in Wolfe et als. v. M’Caull, Clerk, &c., 76 Va. 876. There the recall was by a joint resolution of the two houses. The court said:
“To hold otherwise, and to declare that by a joint resolution the general assembly might retain its power over a bill after it had been passed, and after motion to reconsider made and voted down within the time prescribed by the rules, there could be no finality to legislative proceedings. Besides, such a construction in favor of the powers of the legislature would trench upon the power and prerogative of the governor.” (p. 890.)
On the other hand, it was held in Kentucky (in 1891) that the courtesy extended to members of the legislature permitting the withdrawal of bills from the governor’s hands, which had grown into a custom, prevented a bill so withdrawn from becoming a law by lapse of the time allowed for executive action while it was so out of his hands. (McKenzie, Secretary of State, v. Moore, &c., 92 Ky. 216, 221.)
Concerning the power of the legislature to recall a bill from the governor, the supreme court of Colorado said:
“We discover nothing in the constitution or statutes that forbids the legislature’s requesting, by joint or concurrent resolution of both houses, the return of a bill in the hands of the governor for his approval, or which directs or controls the action of his excellency in response to such request.
“Neither do we find any provision in the constitution or statutes which inhibits a reconsideration and amendment, if in accordance with the parliamentary practice adopted by the respective .houses, of a bill thus returned.” (Recalling Bills, 9 Colo. 630.)
Thus it appears that in Virginia the right of recall is denied because the constitution does not expressly authorize it. In Colorado the right is affirmed because the constitution does not forbid it. Both in New York and Kentucky some reliance is placed upon custom in deciding the question.
A bill which had passed both houses of the legislature in Connecticut was recalled by the house of representatives after it was signed by the governor, to whom it had been presented by mistake pending a motion to reconsider. The governor erased his approval and the bill was returned. The court held that it was not a law. (State v. Savings Bank of New London, 79 Conn. 141.)
It appears to be the practice in the federal congress to recall by concurrent resolution bills that have been presented to the president for his approval. Numerous instances are cited in sections 3505 to 3519 of volume 4 of - Hinds’ Precedents. In one instance the president canceled his signature already written upon the bill and returned it. In another the bill was amended after its return, and in several cases clerical mistakes and mistakes in enrollment were corrected. In a footnote to section 3508 it is said that resolutions asking for the recall of bills have usually been presented by unanimous consent, although one was presented ás privileged. We are not now concerned, however, with the procedure; the question here is one of power.
In this state it has been the practice, for several years at least, for each house by its own resolution to recall bills from the governor. Counsel have furnished a list of seventeen which have been so recalled in the last six regular sessions of the legislature, and we find that the practice existed before the period named. If the constitution forbade this practice, the custom would not make it valid, but in the absence of any express prohibition the custom is significant as showing the construction of its own powers by a coordinate branch of the government. A law is not complete until it has been finally acted upon by the two houses, and by the governor. The action of the latter, it is true,' may be only negative, as when he permits a bill to become a law by failing to return it in the prescribed period; still this implies consideration and authority. Until a bill has received the final consideration of the three lawmaking powers, viz., the house, the senate and the governor, it is not a law (Pom. Const. Law, 3d ed., §§ 174, 176; The People v. Bowen, 21 N. Y. 517; Kellogg v. State Treasurer, 44 Vt. 356; The Power of the President to Sign Bills, etc., 32 Am. Law Rev., p. 208), and until such final consideration it must be subject to such changes as may be effected by authorized methods of precedure. It is not necessary to determine whether the governor is bound to return a bill at the request of the legislature or of either house, but if he does so and the bill is again presented to him for his approval or rejection he has the full period of three days thereafter for consideration as though it were a new bill. Verbal errors, omissions and mistakes in enrollment make the practice of occasionally recalling bills desirable, and in the absence of constitutional restrictions the power must be held to exist.
For the reasons stated it is held that house bill No. 616 is not a law, because it was vetoed by the governor in the exercise of his constitutional power.
The writer of this opinion would also hold that the bill last referred to was vetoed on March 9, when it was returned by the governor with his objections. This action satisfied fully the constitutional requisites of the exercise of the veto power. The fact that the governor also stated that he did not wish to veto the bill does not deprive his action of that effect. The court, however, does not deem it necessary to decide this question.
The writ of mandamus is denied. | [
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Per Curiam:
By the use of the words “the amount due the plaintiff, if any,” in the eighth instruction, and by the use of a similar expression in the ninth instruction, the court evidently intended to follow the decision of this court on the former appeal. (Dewey v. Bobbitt, 79 Kan. 505.) The plaintiff asked for nothing more explicit, although a mere suggestion to the court would have been enough if the plaintiff believed it was departing from the former decision. Under these circumstances the instructions referred to will be regarded as sufficient. In any event, neither the abstract nor the brief anywhere shows that the plaintiff’s claim amounts to a greater sum than that which the evidence warranted the jury in allowing the defendant, so that prejudicial error is not made to appear with sufficient certainty to require a reversal.
There was ample evidence upon which to apportion the consideration for the defendant’s purchase. The plaintiff himself recognized this fact in his requests for instructions to the jury. The greater part of his argument now is contrary to this theory, and consequently is not well founded.
The defendant was entitled to interest upon the value of the property which was not delivered to him. Nothing else argued in the brief requires a third trial of this action, and the judgment of the district court is affirmed. | [
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Per Curiam:
The appellee made no appearance and made no presentation of this case in this court. This action appears to be one of forcible entry and detainer, and was brought by the appellee against the appellant. The appellee claimed title under a tax deed, under which he had never had possession of the property. The appellant claimed ownership under a verbal contract to purchase with the holder of an earlier tax deed, and had been in possession as a tenant and under such agreement for about two years. He had never been a tenant of the appellee.
The evidence fails to show that the appellant made an unlawful and 'forcible entry to the lands and 'tenements, or, having lawfully and peaceably entered therein, that he unlawfully and by force held the same. Indeed, the real purpose of the action seems to be to try the title to the property between the appellee and the former tax-title holder, under whom the appellant was in possession, and for this purpose forcible entry and detainer is not the proper form of action.
The judgment is reversed and the case is remanded. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a ruling made in a habeas corpus proceeding and in an incidental proceeding of forfeiture.
It appears that on information that J. A. Cole had committed an offense in the state of Nebraska the sheriff of Saline county arrested him without a warrant. On the application of Cole a writ of habeas corpus was granted by the district court, and when he was brought before the court the sheriff was given ten days in which, to make his return to the writ, and it was further ordered that Cole might be released from custody upon giving a bond conditioned that he would comply with the orders of the court and abide its judgment, or that, in lieu of a bond, he might make a cash deposit of $500, to be forfeited upon failure to comply with the conditions mentioned. Within ten days the sheriff made a return stating that since the arrest of Cole he had received an executive warrant which recited, among other things, that in a complaint filed in Nebraska Cole stood charged with the offense of child stealing. After the return, and upon the day fixed for the hearing of the writ, the attorney for Cole demurred to the return of the sheriff and asked for the discharge of the petitioner because the return on its face showed no authority for arresting and holding him. The court declined to hear the demurrer unless the attorney brought Cole into court.. It was admitted that Cole was not in the city or county on that day and could not be produced, and thereupon the court directed the sheriff formally to call Cole, which was done, and as he did not come into court the cash deposit was at once forfeited. Complaint is made of the refusal of the court to hear the demurrer, and also of its ruling declaring the forfeiture.
Having given security to abide the orders and judgment of the court, the petitioner contends that he was entitled to challenge the validity of the return upon the appearance of his attorney, and without his own presence in court.
It is a common practice in this court to hear questions of law arising on the return of officers in habeas corpus proceedings without the personal presence of the petitioners, and especially if they have given bond conditioned that they will comply with the orders and judgment of the court. Whether a court will so proceed is largely a matter within its own discretion. The code provides that “the court or judge may make any temporary orders in the cause or disposition of the party during the progress of the proceedings that justice may require.” (Civ. Code, § 707.) Ordinarily, where a bond is given the sufficiency of the return or process may be tested without the presence of the petitioner, but if there are circumstances tending to show that the release from custody was obtained by the petitioner in order to escape the penalties of the law, and that he does not intend to comply with the orders or judgment of the court if they are adverse to him, the court may very properly decline to take up or try any feature of the case until he is personally present. What the circumstances of this case were, or what were the reasons which caused the court to require the presence of the petitioner before hearing his demurrer, are not stated in the record, and in the absence of such a showing it can not be said that the court abused its discretion or acted unjustly.
The action of the court in declaring a forfeiture was somewhat precipitate. The conditions of the obligation of the petitioner were that he would comply with the orders and judgment of the court. According to the record no order or judgment was made except to refuse a hearing and declare a forfeiture. Instead of giving a reasonable time in which to appear or suffer a forfeiture of the $500 deposited, the court, after declining to hear the demurrer, had the petitioner called three times, and, as he did not appear, adjudged the forfeiture. In view of the general practice which prevails in such hearings, and the conditions on which the petitioner was released, the forfeiture should not have been adjudged until he had failed to comply with some order of the court. He was entitled to a reasonable time and opportunity to comply with the order or judgment rendered, and thus save the forfeiture of his deposit.
The requirement that he should be personally present and the forfeiture were practically coincident, and hence we conclude that the ruling adjudging a forfeiture was erroneous, for which the judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Benson, J.:
This is an action to recover damages alleged to have been suffered by the plaintiff by reason of the false and fraudulent statements of its freight agent that the rate for the transportation of wheat in carload lots from Wakefield, Kan., to New Braunfels, Tex., was 31 cents per hundredweight, when in fact the regular rate was 431/2 cents per hundredweight, whereby the plaintiff suffered damages in the sum of $150.25, being the difference between the rate quoted and the regular rate charged upon two cars of wheat ■sold and shipped in reliance upon the truth of the statement of the defendant’s agent that the rate was 31 cents per hundredweight. The case was tried upon an agreed statement of facts, from which it appears that the plaintiff inquired of the defendant’s agent at Wakefield, Kan., for the freight rate on wheat in carload lots from that station to New Braunfels, Tex., and informed the agent that he desired to know the rate in order to fix the price of wheat which he had an opportunity to sell at New Braunfels. The agent said that he could not give the rate, but would obtain it. Shortly afterward the agent received a letter from a general freight agent of the company advising him •that the rate inquired about was 31 cents per hundredweight, and so stated to the plaintiff. Relying upon the information so obtained, the plaintiff fixed the price to his customer and sold to him two carloads of wheat,- which was then shipped over the ■ defendant’s line to New Braunfels-, and the plaintiff paid .or offered to pay the rate named,- viz., 31 cents per hundredweight. . When the wheat arrived at the place of destination an additional charge of- 12% cents per hundredweight was made and collected, making 43% cents per hundredweight on the shipment, which was the correct rate on file with- the interstate commerce commission, being 12% cents from Wakefield to Kansas City, and 31 cents from Kansas City to New Braunfels. The mistake in quoting the rate was unintentional, and was made without fraudulent intent. Judgment was rendered for the plaintiff as prayed for, and the defendant appeals.
The defendant relies upon the provisions of the interstate commerce act, its tariffs of freight rates between the places named having been filed with the interstate commerce commission. It was held in Railway Co. v. Milling Co., 80 Kan. 141, and in Railway Co. v. Refining Co., 83 Kan. 732, that the schedule of rates published and filed with the interstate commerce commission must govern. Any claim that such rate is unjust must be presented to that tribunal. This is not disputed by the plaintiff, but it is insisted that the claim is not based upon a contract for less than the regular schedule rates but upon a misrepresentation of such rates, that the interstate commerce act does not relieve a carrier from damages caused by its negligence and false representations in such matters, and that the action is not upon contract, but in tort. Can the plaintiff recover damages for a misrepresentation of the rate when he could not have recovered upon an express agreement for that rate? It is not necessary to inquire into the purposes and scope of the interstate commerce act. They have been elaborately considered and stated in decisions of the federal supreme court. The interpretation of the law by that tribunal appears to be decisive of this controversy. (Gulf, Coloroad &c. Railway v. Hefley, 158 U. S. 98; Texas & Pacific Railway v. Mugg, 202 U. S. 242; Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 426; Armour Packing Co. v. United States, 209 U. S. 56.)
In the Mugg case (202 U. S. 242) the action was to recover damages by reason of negligence in the misquotation of the rates for carrying coal on an interstate shipment, on ydiich rates the plaintiff in that suit had relied and had sold the coal at a price based on the rate so given. The carrier collected freight charges according to the established rate as filed. The shipper sued, expressly alleging negligence in giving the rate as his ground of action. The supreme court of Texas ordered judgment for the plaintiff, but this was reversed and it was held that under the interpretation of the interstate commerce act by earlier decisions of the court, then reviewed and followed, there could be no recovery.
It was held in the case of the Armour Packing Company (209 U. S. 56), in a prosecution for rebating, that although a contract for carriage of goods at. a stipulated rate was valid when made, being the same as the tariff rate,- yet it was a violation of the law to carry the goods at that rate after it had been superseded by a higher one made and filed as provided in the interstate, commerce act. The court said that “neither shipper nor carrier may vary from the duly filed and published rate without incurring the penalty of the law.” (p. 81.) Referring to the effect of the decision upon contracts for future delivery, the court said:
“It may be, as urged by petitioner, that this construction renders impossible the making of contracts for the future delivery of such merchandise as the petitioner deals in, and that the instability of the rate introduces a factor of uncertainty, destructive of contract rights heretofore enjoyed in such property. This feature of the law, it is insisted, puts the shipper in many kinds of trade at the mercy of the carrier, who may arbitrarily change a rate upon the faith of which contracts have been entered into. But the right to make such regulations is inherent in the power of congress to legislate respecting interstate commerce, and such considerations of inconvenience or hardship address themselves to the lawmaking branch of the government.” (p. 81.)
The judgment is reversed, with directions to enter judgment for the defendant upon the agreed statement of facts. | [
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Per Curiam:
The right of the court to make its record speak the truth and the whole truth at any time, even after appeal, is too well established in this state to require further vindication.
The proceedings of April 2 and April 19 resulted in a consent judgment which binds the appellant up to that point. It would be very strange if a party, after appearing and agreeing in open court to the final disposition of a controversy in-a certain way, could thereafter question previous steps taken in the case.
When the last motion came up for hearing the appellant’s attorney consented that the attorney for the appellee should state the facts relating to the proceedings and transactions between the parties. The statement made the whole matter clear and completely disposed of the grounds of the motion. Not only did the appellant not offer to dispute the statement but his chief counsel admitted it to be true. That ended the controversy.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Charles Nordmark was charged with having murdered Alexander Lindahl on March 26, 1910, and upon a trial he was convicted of murder in the second degree. On this appeal the principal complaint is that the verdict of the jury is not sustained by the evidence.
There was no eyewitness to the killing, and in this, as in most cases where conviction rests on circumstantial evidence, there is a claim that the guilt of appellant is not shown with the certainty which is necessary to a conviction. It was shown that Nordmark and Lindahl lived on adjoining farms and that between them there had been a bitter hatred for some time, arising mostly from the fact that Nordmark had charged Lindahl with stealing his property, and it had been demonstrated that Lindahl had stolen many articles belonging to Nordmark and had committed numerous depredations on his property. Frequently Nordmark had expressed the opinion that Lindahl should be killed and made threats of shooting him, and often he had expressed the opinion that he could not get legal redress for the wrongs inflicted on him by -Lindahl, but that he would “get him,” and on the night before the killing a threat of this kind was made. It appears that on the afternoon of March 26, 1910, Lindahl and his two children went down to his boat landing on the Republican river, which was near the corner of the Nordmark farm.' Nordmark was at work near the landing about the time the killing was done. About four o’clock that afternoon two witnesses, who were within a mile of the landing, heard three shots fired in the locality of the landing, and one of them saw smoke float out over the river, at that place, as though emanating from the shooting. Three persons, Lindahl and his two children, were shot and killed. About five o’clock the following day Percy Shivers and John Weber, who were coming up the river, discovered Lindahl’s motor boat at a point about forty rods below the boat landing. It was at the bank, in still water, and on the lower side of a sand bar which extended out into the river about forty or fifty feet, and over which it was impossible for the boat to have drifted. In it were the bodies of the two children, and with them was Lindahl’s dog, which was alive. The following morning the body of Lindahl was found, submerged in water about three feet deep, on the up-stream side of a willow tree which lay in the river near the west bank. The point where the body was found was seventy yards below the landing, and the partially submerged tree was the first obstruction that would be met by a floating object below the landing. Lindahl’s cap was also found lodged on a twig of the submerged tree, almost directly over the place where his body was found. Lindahl had been killed by buckshot, and the children also had been killed by the same kind of shot. The course of the shots was in a downward direction and the theory of the state is that they had been fired from the same position. A small dogwood tree, which grew on the bank of the river, between the Nordmark field and the landing, appeared to have been cut by buckshot. Shot of the same kind were found imbedded in the boat. Three empty shot shells were found near the landing, such as would fit a twelve-guage shotgun, and a gun of this kind, loaded with buckshot, was found in the Nordmark house, and an examination of it showed that one of the barrels had been recently used; but it was also shown that Lindahl and others had guns of this kind, and shells loaded with buckshot were found in the houses of both Lindahl and Nordmark. Lindahl and his two children started for the river on the afternoon of the alleged killing to look after his traps, and were seen by his wife on their way to the river. The little girl was carrying an oil can, which was afterward found near the landing. In the boat were found trap stakes, recently cut, and small trees from which the stakes had evidently been made had been cut near the landing.
The inference drawn by the state from the facts, not all of which have been stated, is that just as Lindahl was embarking or landing the boat Nordmark, who it is conceded was working in an adjoining field and who on the night before had threatened to kill Lindahl, fired the shots which killed the Lindahls; that Lindahl’s body fell into the water and floated to the spot where it was found; that the bodies of the children remained in the boat, which was carried down by the current, and when the boat reached the sand bar it was caused to swing around into the quiet water, where it lodged. Nordmark conceded that there was animosity between himself and Lindahl and did not deny the threats mentioned, but he did deny that he had anything to do with the killing of the Lindahls. His theory was that Lindahl might have quarreled with other parties who were boating or fishing on the river and had been killed by them, and that they placed the bodies near the Nordmark place so as to direct suspicion toward him.
There is a complaint about the admission of testimony by witness Dunlap to the effect that the shrubs or underbrush near the landing had been severed by buckshot, and also that the empty shells found near the landing had been loaded with buckshot. If a witness has acquired peculiar knowledge or skill, by experience, observation or practice on a subject with which the mass of mankind is not supposed to be acquainted, he may give his opinion on it. Expert opinion evidence is admitted as to the use and effect of firearms by one who has had experience and has special knowledge on that line. (The State v. Baldwin, 36 Kan. 1; The State v. Jones, 41 Kan. 309; The State v. Asbell, 57 Kan. 398; 18 Cyc. 1505.) The witness had used firearms for forty years and had observed the results of shot and bullets cutting through underbrush or the limbs of trees; and he had also given attention to the results of discharging small or large shot from shells, and appeared to have special skill and experience sufficient to warrant the court in receiving his testimony. It may be that his opinions were not of much value, but the relative weight of the testimony was a matter for the jury to determine.
It is argued that the limb supposed to have been cut by the shot, the photographs of the landing and vicinity and the shells found near there should not have been received in evidence unless it was first shown that there was a connection between them and the killing of Lindahl at that place. There was circumstantial evidence offered which fairly tended to show that the killing was done at the landing. There was proof that Lindahl and the children went to the landing, that shots were heard in that locality, and that smoke, apparently from them, floated away. The body of .Lindahl was found near there, pierced by shot of the same kind as appeared to have cut the limb or brush which was offered in evidence and which had grown six or eight feet from the landing. The other testimony, tending to show that Nordmark had the motive, was in the vicinity when the shots were fired, and had both the means and the opportunity to commit the offense, made a sufficiently close connection between the place and the accused to justify the receipt of the testimony. The nature, location and physical characteristics of the place of the killing and the conditions existing in the immediate vicinity may certainly all be offered as a part of the history of the transaction and to assist the court and jury in understanding the testimony. Photographs which correctly represent the locality may be received for that purpose. In State of Iowa v. Gray, 116 Iowa, 231, it was held that cartridge shells found on the scene of the homicide might be received in evidence as a part of the history of the case, although they did not connect the defendant with the case. (See, also, State v. Tettaton, 159 Mo. 354; 6 Encyc. of Ev. 608.)
Nor was there error in admitting the testimony of Doctor Decker, the coroner, in regard to the condition of the bodies of Lindahl and his children. It .is insisted that testimony as to the children had no bearing on the charge of killing Lindahl and was necessarily prejudicial to appellant. The shooting, according to the testimony, was a single and continuous transaction, as all the Lindahls appear to have been killed at practically the same time and by the same means. The testimony as to the children not only assisted in showing how the killing was done, but it also tended to show the plan and purpose of the accused in committing the crime charged. The fact that evidence which tends toward proving an accused guilty may also tend to prove the commission of another offense does not render it inadmissible. (The State v. Calhoun, 75 Kan. 259; The State v. Hansford, 81 Kan. 300; The State v. Chance, 82 Kan. 388.)
Another complaint is that the court, in denying a motion for a new trial, refused a request to state' definitely and distinctly the facts and circumstances upon which the court founded its approval of the verdict. In other words, that it denied an application to make special findings of fact which in the opinion.of the trial court support the verdict of the jury. Counsel frankly admits that he knows of no authority for such a practice and there appears to be no warrant for it in the statutes. It may be that such a procedure would serve a good purpose in some cases, but this court is not warranted in adding such a requirement to that prescribed by the legislature. In a few cases trial courts have written opinions in criminal cases stating the reasons which controlled them in denying motions for new trials, but these were voluntary contributions, which the legislature/does not require, and the denial of the request for such a statement or opinion can not be regarded as error. Because of the denial of this application it is inferred by appellant that only a pro forma decision was made, but there is nothing in the record to indicate that the court did not examine each ground presented in the motion for a new trial or that it did not exercise its independent and deliberate judgment in disposing of the motion. That the court understood the issues and fairly presented them is attested by the fact that no complaint is made of the instructions given to the jury.
One of the grounds of the motion for a new trial was newly discovered evidence, and supporting it was the testimony of a witness to the effect that on Sunday, the 27th of' March, 1910, he heard a noise which sounded like the chug of a motor boat, that he only knew of three motor boats on the river, and that they were owned by Lindahl, Weber and Shivers. It is said to be material testimony, either that Lindahl was yet alive or that Weber and Shivers were in the vicinity of the Nordmark farm at that time and may have been connected with the crime. Apart from the fact that little diligence was shown in procuring the testimony of the witness, the proposed testimony is too indefinite and remote to justify a new trial. Unless the evidence is so material that it would be likely to produce a different result the court is not warranted in setting aside the verdict. The witness stated that he knew of but three boats on the river, but there may have been a number of others of which he knew nothing; but, taking the strongest inference that could be drawn from the proposed testimony, and adding to it that which was received, there is no reason to think that a jury would reach a different verdict.
The final contention is that the evidence does not sustain the verdict and judgment. Attention is. called to the fact that there is an absence of direct proof that the appellant committed the offense, and also that the conviction rests mainly on circumstantial evidence. Some regard direct or positive evidence as affording greater assurance of the fact in issue, while others assert that circumstantial evidence is less easy to fabricate and more reliable; but, whatever may be the relative value of the two kinds of evidence, there is no question but that circumstantial evidence is legal evidence, and it has been held that such evidence is sufficient to prove the corpus delicti, including the guilty agency of the accused, and also the venue. (The State v. Winner, 17 Kan. 298; The State v. Thomas, 58 Kan. 805.) It is contended here that the circumstances established are not sufficiently strong nor so closely linked as to give any assurance that the accused committed the offense charged. A reading of the testimony satisfies us that it fairly justifies the inference that Lindahl and the children were at the boat landing at the time the three shots were heard and when the smoke was seen in the vicinity of the landing. The finding of the three empty shells and' the cutting of the shrub near the landing, as well as the finding of the bodies of those killed in the places where they would naturally drift, with some other minor facts, warranted the jury in drawing the inference that the Lindahls were shot and killed at the landing on the afternoon mentioned. Then it was clearly shown that Nordmark was close to the landing at the time, and that he not only had the motive to commit the crime and had frequently threatened that he would kill Lindahl, but that on the night previous to the homicide he had openly expressed a purpose to kill him. He had the opportunity the next day, had the kind of gun and ammunition that were used, and his gun indicated that it had been recently fired.
Much is said about it being unreasonable to suppose that the bodies and the boat floated to the places where they were found, but in view of the current of the river, the depth of the water, the obstructions and the sand bar, it is not strange that they should have drifted to the places in which they were found. Lindahl’s body evidently drifted along the bank to the tree, the first obstruction it met below the landing. The boat drifted further down to a point where a sand bar had been formed, back of which there was still water. It is within reason that a boat carried along in a current without anyone to control it might, at the turn of the current, pass into the dead water behind the sand bar, and that by the action that formed the sand bar it might be gradually pushed up to the bank where it was found. Along the bank at this point are some hills and a fringe of trees that, by reason of their influence upon the prevailing high wind, may have contributed to some extent to the drifting and lodging of the boat near the shore and behind the sand bar.
The court is admonished to be careful in finally determining the guilt of the accused of so serious a charge on indirect and inconclusive evidence, but a reading of the whole testimony impels the opinion that the jury were warranted in the verdict returned. The series of circumstances, so closely related to each other and connected with facts established by direct evidence, are quite persuasive and strongly tend to prove that the accused committed the crime. The question here is only whether there is sufficient evidence to sustain the verdict, and to the jury was committed the decision as to whether that evidence was sufficiently satisfactory and convincing to warrant them in finding the accused guilty. It must be assumed that the jury were duly cautioned'by the trial court not to convict on the evidence submitted unless every element of the offense was proved to their satisfaction and beyond a reasonable doubt, since the accused was satisfied with the instructions given. The law places the great responsi bility upon the jury of determining the guilt or innocence of a neighbor, and twelve men, against whom no misconduct is alleged, have decided that the accused killed Lindahl, and this decision has received the approval of the trial judge.
We find no sufficient reason to set aside the verdict and decision, and therefore the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Lane and Leonard sued George and MeQuilkin to recover damages for the breach of a contract for the exchange of properties. The facts are stated more fully in a former opinion (George v. Lane, 80 Kan. 94), where a judgment in favor of the plaintiffs was reversed for trial errors. On the second trial the plaintiffs again recovered and the defendants appeal.
On May 9, 1905, the parties entered into a written contract under the terms of which the plaintiffs conveyed by warranty deed to the defendants a farm of two hundred acres in Jefferson county, in consideration of which the defendants transferred to the plaintiffs a certain stock of groceries and grocery fixtures and agreed to furnish a buyer who would take a half interest in the grocery stock at $1300. The breach of the contract consisted in the failure of the defendants to furnish such buyer. The case was tried both times on the same pleadings. The answer admitted the execution of the contract, but specifically denied that the plaintiff had performed the terms thereof and pleaded matter in avoidance of the agreement to find a purchaser for a half interest in the grocery stock. On the second trial, the defendants claimed for the first time that the plaintiffs had failed to comply with the contract because the farm was subject to a mortgage of $2000 which was not referred to in the written contract. The deed was a general warranty and recited that it was subject to “a mortgage of $2000 in favor of the Mutual Benefit Insurance Company, which the parties of the second part agree to assume.” It was delivered on the 15th day of May, 1905, and immediately filed for record by the defendants.- On the second trial the court was asked to instruct the jury that by the terms of the contract the defendants were entitled to a deed showing a clear title and unless the plaintiffs had delivered such a deed they would not be entitled to recover. A peremp tory instruction to find for the defendants was also requested. The refusal of the court to give these instructions is the error complained of.
The defendants’ contention is easily disposed of. They made no objection to the encumbrance on the land at the time the deed was delivered, but transferred, the stock of merchandise in exchange for it, and are, of course, estopped by their conduct from now claiming-that they understood they were to get the title clear of any encumbrance. When they raised this defense for the first time they had been in possession of the land for five years, claiming under the deed, without any objection. They made no offer to rescind the contract and to reconvey, but propose to keep the land and avoid compliance with the terms of the contract because they now claim to be dissatisfied with the title. This they can not be permitted to do. (Dunn v. Mills, 70 Kan. 656; Brown v. McCrie, 77 Kan. 230; Harrell v. Neef, 80 Kan. 348.)
After accepting the deed and retaining possession all these years it would be unconscionable to permit the-defendants to set up the defense that the plaintiffs had not conveyed the title agreed upon. Obviously, the-understanding of both parties was that the land should be conveyed subject to this mortgage. Otherwise the-objection would have been raised at the moment the deed was delivered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
M. Hilligoss recovered a judgment against the Missouri, Kansas & Texas Railway Company for a fire loss, and the defendant appeals.
Complaint is made that the plaintiff was permitted to give evidence of the value per ton of. unsevered timothy and clover destroyed by the fire. The defendant argues that while the independent value of a component part of the realty may be shown (Railway Co. v. Lycan, 57 Kan. 635), it must be valued as realty. The market value of a growing or standing crop at the time of its destruction is an element of damage (8 A. & E. Encycl. of L. 330; 13 Cyc. 153-155; 33 Cyc. 1389-1391), this being true of perennial as well as of annual crops (23 L. R. A., n. s., 310, note).
Complaint is also made that evidence was allowed of the cost of restoring a hedge to its former condition. This might under some circumstances be a matter to be considered, and there was no error in admitting the testimony. (Ft. S. W. & W. Rly. Co. v. Tubbs, 47 Kan. 630, 633.)
An employee of the defendant testified that he had examined the spark arrester of the engine that set out the fire and found it in first-class condition. This testimony was stricken out, and the ruling is assigned as error. On cross-examination he said that no repairs were made upon the spark arrester when he examined it, because it did not need any. This covered substantially the same ground as the answer that had been stricken out, and any error in that connection was thereby cured.
Among the special questions submitted to the jury were a number asking in what the negligence of the defendant consisted, and whether the appliances in use were properly constructed, inspected and managed. To each of these the answer was returned: “Don’t know.” The defendant asked that these answers be required to be made more definite, and now complains of the refusal of its request. The answer “don’t know” is ordinarily interpreted as a finding against the party having the burden of proof as to the particular matter involved. (Morrow et al. v. Comm’rs of Saline Co., 21 Kan. 484; Railroad Co. v. Swarts, 58 Kan. 235; Croan v. Baden, 73 Kan. 364.) In Railway Co. v. Hale, 64 Kan. 751, it was said that this rule does not apply where a party has asked that the jury be required to return a more specific answer to a question upon which there is conflicting evidence. In that case, however, no consideration appears to have been given to the peculiar situation resulting from the statute (Laws 1885, ch. 155, § 1, Gen. Stat. 1909, § 7079) which makes proof that a fire was caused by the operation of a railroad prima facie evidence that it was the result of negligence. If in the present action no evidence whatever had been introduced on the subject of negligence beyond the bare fact that the fire was set out by the defendant’s engine, and the same question's had been submitted, the jury would necessarily have answered them just as they did. Having no information on the subject, they would be unable to form an opinion whether the defendant had been negligent in any particular respect, but under the statute they would presume negligence of some sort. If they found the testimony of the defendant’s witnesses unconvincing, and that was a matter for them to determine (Railway Co. v. Geiser, 68 Kan. 281), they were in precisely the same situation as though no such testimony had been offered. The fair interpretation of their answer that they did not know whether the engine was properly constructed is that they were not convinced by the testimony of the defendant’s witnesses that such was the case. And so with each of. the other similar answers. If the jury found that the plaintiff had not proved, and the defendant had not disproved, any specific form of negligence, they could only say that they did not know whether the company was negligent in that respect, and did not know" in what respect it was negligent, but that they held it liable because the statutory presumption that it was guilty of some kind of negligence had not been overcome.
An instruction was given to the effect that it is the duty of a railway company so to construct its engines that, if kept in good order and properly handled, no coals or cinders can escape from them so as to cause a fire. Any error in this regard was necessarily nonprejudicial, for, as already shown, the jury found that the defendant had not disproved its negligence in respect to the operation and inspection of the engine in question. The verdict therefore would still stand although it should be conceded that the engine was properly constructed.
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Per Curiam:
This is an appeal from, the conviction of the appellant for a violation of the prohibitory liquor law. In the-absence of a bill of exceptions'the evidence is to be presumed sufficient to support the charge. The trial appears to have been conducted regularly and no question of error is presented which demands discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Wilbur McLean, having been prosecuted upon a charge of grand larceny and sentenced to the penitentiary, asks to be discharged by habeas corpus upon the ground that the verdict against him was so indefinite as to be absolutely void. The information charged the theft of wearing apparel worth more than twenty dollars. The verdict read:
“We, the jury impaneled and sworn in the above-entitled case, do upon our oath find the defendant, Wilbur McLean, guilty of larceny, and find the value of the property taken to be twenty-eight (28.00).”
The petitioner claims that the expression “twenty-eight (28.00) ” is meaningless for want of some word or character to indicate to what it refers. Of a similar question it was said in Hunt v. Smith, 9 Kan. 137:.
“In legal contemplation land can not be assessed, appraised, or valued, nor can compensation or damages be awarded therefor, except in money. . . . Dollars are the legal money units of this country, made so by the laws of the United States. . . . Hence, whenever figures are used intending to represent money, such figures must, of course, be understood to represent ‘dollars,’ unless a different intention is clearly expressed. The point or dot, resembling a period in punctuation, separating certain figures on the right from those on the left, is the decimal point. It makes the figures on the fight decimals of a unit of whatever is intended to be expressed by those on the left. Those on the left, as we have already seen, are intended to represent dollars, hence those on the right must represent decimals of dollars. As only two figures on the right are thus separated from the others, these two figures must represent hundredths of dollars; or, in other words, ‘cents.’ This is well settled by almost universal usage everywhere in the United States.” (p. 152.)
Some courts hold that this rule does not apply to the record of a judgment, owing to the high degree of certainty there required, but the great weight of authority is to the contrary. (1 Black Judg., § 118; Snow v. West, [Utah, 1910] 110 Pac. 52; Dickens v. Crane, 33 Kan. 344.) The omission to insert the word “dollars,” or the equivalent mark, is held not fatal to a civil verdict. (16 A. & E. Ann. Cas. 475, note.)
In this state obvious omissions in a verdict may be supplied by interpretation, even in criminal cases. (The State v. Wade, 56 Kan. 75; The State v. Pugh, 75 Kan. 792. See, also, O’Docharty v. State, [Tex. Crim. App. 1900] 57 S. W. 657.) In the present case there is no room for doubt as to what the jury meant, and the effect of what they said is the same as though they had added the word “dollars.”
The petitioner also contends that the verdict is void on the ground that it fails to comply with the statute reading:
“Upon the trial of any indictment or information for any offense, where by law there may be conviction of different degrees of such offense, the jury, if they convict the defendant, shall specify in their verdict of what degree of the offense they find the defendant, guilty.” (Crim. Code, § 239.)
A disregard of this statute does not render the sentence void, or justify a resort to habeas corpus. (The State v. Jennings, 24 Kan. 642; In re Black, Petitioner, 52 Kan. 64.) But here the statutory requirement seems to have been fully met, for the jury, in finding the defendant guilty of stealing property worth over twenty dollars did in effect specify that he was convicted of grand larceny. True, so far as the face of the verdict discloses, the conviction might have been for the theft of a horse, or for some other form of larceny, the penalty for which is greater than for ordinary grand larceny. But nothing of the kind was charged. It is only where the information charges different degrees of an offense that the statute quoted has any application. (The State v. Adams, 20 Kan. 311, 329.) It was said in The State v. Reddick, 7 Kan. 143, 155, that the verdict must speak for itself. But the meaning is that (as against a direct attack) the verdict can not be aided by the instructions. The information may be looked to as a matter of course to interpret the verdict. (12 Cyc. 690, note 5; Albritton v. State, 54 Fla. 6, 12; Armstrong v. The People, 37 Ill. 459.) The. verdict necessarily relates to the accusation made, and the omission of the words “as charged in the indictment” is not important. (12 Cyc. 690, note 11.) A verdict of guilty which can apply to but one of the offenses or degrees charged in the information sufficiently complies with the statute requiring a specification of the degree, although its language may also fit other offenses or degrees that are not included in the charge.
In In re Howard,, 72 Kan. 273, a judgment sentencing a defendant to the penitentiary until discharged by law showed merely that he had pleaded guilty to grand larceny, without indicating anything further as to the character of the charge. As the maximum imprisonment for some forms of grand larceny is five years, and for others seven,- it was held that the judgment did not show which period applied, and was therefore void. There are manifest reasons why a judgment should be required to be complete in itself that do not apply in the case of a verdict — why the same fullness of expression is not required in the verdict, upon which the court itself is to act, as in the judgment, under which the penalty of the law is to be inflicted. Here the court interpreted the verdict in the light of the information, and found that the defendant had been convicted of that kind of grand larceny the extreme penalty for which is confinement for five years. This finding was recited in the. judgment, which ordered a punishment in accordance therewith.
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The opinion of the court was delivered by
Porter, J.:
The North Topeka Drainage District by condemnation proceedings appropriated land belonging to Raney for the purpose of constructing a dike to prevent the overflow of the Kansas river. Raney appealed to the district court from the award of damages. The jury fixed the damages at the sum of $2000 and allowed interest thereon from the time the dike was constructed. The drainage district appeals from this judgment.
The principal error claimed relates to the instructions. The court refused to instruct the jury as follows: ■
“The condemnation and appropriation by defendant of the land in question did not devest plaintiff of his title but only permits defendant to use the same for the purpose of constructing and maintaining a dike thereon, and the plaintiff still has the right to the free and full use of all the land included in said right of way for any purpose that will not interfere with the maintenance of such dike.”
The court gave instead the following instruction:
“You are also instructed that the drainage district by the condemnation and appropriation of this particular piece of land for the purpose of building the dike did not acquire the free title to any part of the land, but that remains in the plaintiff, the owner, and the drainage district simply acquired the right to build and maintain that dike there for public purposes and the plaintiff still remains the owner of all the, land in the contract, and in case that dike should cease to exist for .the purposes for which it was constructed, then the ownership of the entire tract as well as the right to possession would revert back to the plaintiff in this case.”
The defendant insists that the jury should have been instructed that the plaintiff would have the right to such use of the land as would not interfere with the maintenance of the dike. We think an instruction to this effect should have been given, but its refusal can not be regarded as substantial error under all the circumstances of the case. The jury were instructed that the fee title of the land remained in the plaintiff, that he was the owner and that the drainage district only acquired the right to build and maintain the dike thereon. It is apparent that the jury were not misled as to the real issue. The land is a tract 200 by 200 feet on the north bank of the Kansas river. The drainage district constructed across the tract an embankment sixty feet wide at the base and eight feet above the surface of the ground. The dirt for the embankment was taken from the land lying south of the dike, and this part of the tract is practicallyof little usable value. In periods of high water it becomes necessarily a part of the bed of the river. The land not taken consists of a triangular strip fifty feet wide on the west end and extending along the north side of the embankment east ninety feet where it runs out to a point. The witnesses for the plaintiff testifiedthat this was worth not to exceed $100. Of course, it is not seriously contended that the plaintiff could make any use of the land upon which the dike stands. There was testimony as to the value of the two strips of land not occupied by the embankment and what use if any could be made of them by the plaintiff, and the failure of the court to inform the jury that he still has the right to such use so far as the same will not interfere with the maintenance of the dike could hardly have prejudiced the defendant. (See the case of L. T. & S. W. Rly. Co. v. Paul, 28 Kan. 816, where the trial court had instructed the jury in general terms that the fee-simple title remains in the plaintiff, subject to the use by the'company for the purposes for which it was condemned, and it was held that the refusal to instruct specifically that the plaintiff had the right to every use of it not inconsistent with the operation of the road was not error under the circumstances of that case.) In the present case none of the plaintiff’s witnesses considered the land south of the embankment of any usable value after the appropriation, and several witnesses for the defendant testified that the entire tract was of no value either before or after it was taken. In fact, one of the points relied upon here is that the verdict is excessive and contrary to the evidence. It appears that the plaintiff purchased the land in 1903, before the flood of that year, for $1800. He produced a number of witnesses experienced in real-estate values who testified that the entire tract immediately before it was condemned was worth $2500 and immediately thereafter was worth not to exceed $100. There was a remarkable conflict in the evidence, but the jury have determined the issue against the defendant and we are bound by their finding. The allowance of interest from the time the embankment was actually constructed was proper. (Irrigation Co. v. McLain, 69 Kan. 334.)
The judgment is affirmed. | [
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'The opinion of the court was delivered by
West, J.:
March 1, 1887, Greenleaf mortgaged to Darlington the property in question, giving a commis.aion mortgage to Cooper, the appellee. November 25, 1889, the mortgage was foreclosed, and a judgment was rendered in favor of Darlington for $3205.82, and a judgment in favor of Cooper for $231.33. Greenleaf was adjudged insane on June 4, 1890, the proceedings reciting that the attack was of three weeks’ duration, supposed to be caused by the use of intoxicants. May "3, 1893, Cooper entered the following satisfaction of his judgment: “I hereby release.and satisfy.this judgement ' in my favor, although the same has not been paid.” November 1, 1898, Cooper filed a motion, called! a motion for revivor, suggesting the insanity of Green-leaf and asking that the cause be continued as. against his guardian, who had been appointed June 13, 1890. The court ordered that the action be continued as against the successor in interest of Greenleaf, J. C. Williams, as the guardian, and that the guardian be made a party defendant to the action and to the judgment theretofore entered and recovered, and “that execution is due on said judgment as by its terms directed.” The attorneys who represented both Darling-ton and'-Cooper filed a praecipe for an order of sale, and the order was issued directing the sale of the property,, reciting both judgments. The return shows the sale to Cooper for $175. The sale was confirmed on December 30, 1893, and a sheriff’s deed was executed to, Cooper on January 6, 1894, reciting the Cooper judgment only. This action was begun by Cooper on February 4, 1909, to recover possession of the property from a daughter and heir of Greenleaf, Kathryn, the appellant. Trial was had and judgment rendered for the appellee. The appellant alleges error in holding-valid the pretended revivor, in holding that the appellee was entitled to recover possession by virtue of the sheriff’s deed, and in instructing the jury to find! for the appellee.
The abstract contains forty-six pages and the counter abstract contains three pages, and counsel for both sides have overlooked rule 9 of this court, requiring abstracts to be indexed, a rule that is to be observed in all cases.
The motion for a new trial was not supported by a showing as to what the excluded evidence was. Section 307 of the code provides, among other things, that “in all cases where the ground of the motion is error in the exclusion of evidence, want of fair opportunity to produce evidence, or newly discovered evidence, such evidence shall be produced at the hearing of the motion by affidavit, deposition- or oral testimony of the witnesses, and the opposing party may rebut the same in like manner.” This is a salutary requirement and should be observed, and the failure to observe it in this case'relieves us from the necessity of considering the alleged error in excluding the evidence of Greenleaf’s insanity for several years before he was adjudged insane. We may say, however, that there was no showing that either Cooper or the public had any knowledge of such alleged insanity, and therefore the evidence was properly excluded.
The so-called revivor was not a revivor in fact, but a mere substitution of the guardian for the insane defendant, so that the latter could be properly represented. While it is conceded that the insanity of a' debtor occurring after judgment has been rendered against him has never been held in this state to render the judgment dormant, it is argued that by analogy such conclusion should be reached. The case of Ashmore v. McDonnell, (Kan. 1888) 16 Pac. 687, modified and corrected in 39 Kan. 669, is cited upon the theory that if a judgment becomes dormant by the incarceration in the penitentiary of the judgment debtor his insanity likewise renders it dormant. But in Gray v. Stewart, 70 Kan. 429, Ashmore v. McDonnell was expressly overruled and it was there held that imprisonment in the penitentiary for murder in the first degree does not under the statute (Crim. Code, §§ 337, 338) render dormant a judgment against the person incarcerated. In the opinion it was said:
“It may be urged that the need for the appointment of a trustee and the revivor of a judgment is as great where one is confined in the penitentiary pending his execution as though he were sentenced to the term of one or more years as punishment. That may be so, but if the statute, strictly construed, does not so provide, the discussion, so far as we are concerned, must end. The question is one for the legislature, and not the courts.” (70 Kan. 433.)
It may likewise be said that the legislature has not provided that a judgment shall become dormant by the. adjudication of insanity of a judgment debtor, and we have no authority to add such a provision to the statute. (Civ. Code, §445, Gen. Stat. 1901, §4895; Code 1909, § 442.)
In section 152 of volume 1 of the fourth edition of Freeman on Judgments, speaking of lunatics, it is said:
“Judgments against them, it is said, are neither void nor voidable. They can not be reversed for error on account of defendant’s lunacy; the proper remedy in favor of a lunatic being to apply to chancery to restrain proceedings, and to compel plaintiff to go there for justice. In a suit against a lunatic the judgment is properly entered against him, and not against his guardian. A lunatic has capacity to appear in court by attorney. The legal title to his-estate remains in him, and does not pass to his guardian. A judgment, to be effective, can not therefore be against any other person than the lunatic.”
In the footnote to Spurlock v. Noe, 39 L. R. A. 775, the authorities on insanity as affecting judgments are collated, and the rule s'eems to be that the validity and vitality of a judgment are not impaired by the subsequent adjudication of the judgment debtor’s insanity, and that even judgments rendered against an insane person can not be set aside by collateral attack.
“A judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect to its validity, verity or binding effect, by parties or privies, in any collateral action or proceeding. . . . It is generally considered that a judgment against á person under the disability of coverture or infancy, or an insane person, is not absolutely void, although it may be voidable, and therefore is not open to collateral attack.” (23 Cyc. 1055, 1072.)
In Gribben, Guardian, v. Maxwell, 34 Kan. 8, it was held that a purchase of real estate made in good faith and for sufficient consideration, before any inquisition and finding of lunacy, can not be set aside on account of such inquisition and finding unless the consideration received be returned' or offered to be returned. The statute in force at the time the guardian was appointed (Gen. Stat. 1868, ch. 60, §§ 1-4, 6-30, 32-36, 38-46, Laws 1870, ch. 20, §§ 1, 4, 5, 7-11, Laws 1872, ch. 143, § 1, Laws 1876, ch. 83; §§ 1, 2, Laws 1876, ch. 9i; §§ 1, 2, Laws 1901, ch. 228, §§ 1-9, Gen. Stat. 1901, §§ 3941-4005; see Gen. Stat. 1909, §§4819-4854), did not vest the title of the lunatic’s real estate in the guardian, and gave him no power to dispose thereof except by order of a probate court, after proper application and showing had been made. ‘ While the law has a tender regard for persons under disability, it would seem inequitable if the sale of a lunatic’s property pursuant to a decree of foreclosure could be set aside collaterally, and without returning or offering to return the purchase price, on the ground that subsequent to the rendition of the judgment the judgment debtor had become insane.
The order of sale was issued to satisfy the two judgments, and the fact that the sheriff’s deed recited only the judgment in favor of Cooper did not render the sale or deed void; and as the sale was-confirmed more than fifteen years before this action was begun we think the trial court properly held the deed valid. (See Austin v. Ballard, post.)
No explanation is given for entering the peculiar release of the Cooper judgment; but as this instrument recited that the judgment was not paid, and as the sale was ordered upon both judgments, the sale was properly made and was valid, and it is not necessary to decide the legal effect of the so-called satisfaction. Payment to the right party will operate as a release, but payment to a person not authorized to receive it will not satisfy a judgment. (Bowersock v. Wickery, 61 Kan. 632.) But whether or not the so-called release was of any validity, the judgment in favor of Darling- ton remained in full force and effect, and was the principal basis for the order of sale, and the sale and the deed made by the sheriff must be held valid.' The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is a suit to enjoin the calling and holding of an election under the initiative and referendum act as applied to cities of the second class. On December 20, 1910, the judge of the district court refused a temporary injunction. The appeal is from this ruling.
The hearing was upon affidavits and upon the verified petition, no oral evidence being introduced. The facts are that the city of Emporia is a city of the second class and is governed by a commission. Shortly before this action was brought, a petition to the mayor and commissioners was filed with the city clerk asking that two proposed ordinances be submitted to a vote of the people, if not passed by the commissioners. One of these ordinances proposed to grant to certain persons a franchise for a street railway in the city of Emporia, and the other proposed to lease to the same parties for a term of twenty years, with an option in the lessees to purchase at any time during the term of the lease, at a certain agreed price, the electric-light and power plant owned by the city, which for a number of years had been used and operated by the city to light its streets and to furnish its inhabitants light and power.
The appellant contends that the court erred in refusing to grant a temporary injunction, for the following reasons: (1) The city of Emporia has no power to lease or sell its electric-light and power plant without direct legislative authority so to do. (2) The petition presented to the commissioners requesting the submission of the proposed ordinances was void for the reason that, at the time the petition was circulated and the names of electors procured thereto, the ordinances proposed were not attached to the petition, nor were they in existence. (3) One of the ordinances is void for the reason that it has no title. (4) Each of the ordinances is dependent on the other, and, one being void, the other is void. (5) The amount of the consideration for the leasing of the city’s electric-light plant, as provided, is for a grossly inadequate sum, and the purchase price of $68,000, in case the lessees, their successors or assigns, should elect to take the same, is much less than the actual value of the plant.
The initiative is a part of the act governing cities of the second class. (Laws 1909, ch. 82, §§ 31-37, Gen. Stat. 1909, §§ 1503-1509.) The particular provisions of the law which are applicable read as follow:
“Any proposed ordinance may be submitted to the board of commissioners by petition signed by electors of the city equal in number to the percentage hereinafter required. A petition signed by electors equal in number to at least forty per centum of the entire vote for all candidates for the office of mayor or commissioner cast at the last preceding general municipal election shall be filed with the city clerk. The signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving the street and number. One of the signers of each such paper shall make oath before an officer competent to administer oaths that the statements therein made are true, as he believes, and that each signature to the paper appended is the genuine signature of the person whose name it. purports to be. If the petition accompanying the proposed ordinance be signed by electors equal in number to forty per centum of the votes cast for all candidates for mayor or commissioner at the last preceding general election, and contains a request that the said ordinance be submitted to a vote of the people if not passed by the board of commissioners, 'such board of commissioners shall either (a) pass such ordinance without alteration within twenty days after attachment of the clerk’s certificate to the accompanying petition; or (6). forthwith after the clerk shall attach to the petition accompanying such ordinance his certificate of sufficiency the board of commissioners shall call a special election, unless a general municipal election is fixed within ninety days thereafter, and at such special or general municipal election, if one is so fixed, such ordinance shall be submitted without alteration to the vote of the electors of said city.” (Laws 1909, ch. 82, § 31, Gen. Stat. 1909, § 1503.)
It is not disputed that the initiatory petition con sisted of thirty-six separate papers, each being verified as part of one petition; that tentative ordinances had been prepared and published in the Emporia Gazette, a daily paper; that amendments to the ordinances, made from time to time, were also published in the same paper; and that copies of the ordinances as printed were attached to the petition when it was presented to the commissioners. It will be observed that the statute expressly provides that “the signatures to the petition need not all be appended to one paper.” Attached to the petition was a certificate from the city clerk that it contained the signatures of at least forty per cent of the qualified voters voting at the last preceding election. It was also shown that when the petition was presented certain verbal amendments were made, with the full knowledge and consent of the commissioners, and the title of one of the ordinances, which had been published but inadvertently omitted, was attached to the copy. The commissioners, with full knowledge of the facts, accepted the petition, and doubtless were satisfied that the signers of each separate paper understood that the paper itself did not constitute the petition, that it was merely a part of it, and that before it would be presented the petition-would have attached to it copies of the proposed ordinances. It must be obvious that the objections based on the alleged irregularities in the circulation and signing of the petitions are entirely too technical to merit the consideration of a court.
There are, however, other reasons why the appellant’s contentions can not be sustained: First, it is a principle of very general application that courts will not enjoin the calling and holding of an election; second, injunction, being an extraordinary remedy, will not be granted unless it be made to appear to the satisfaction of a court of equity that some substantial and positive injury will occur. Acts which, though irregu lar and unauthorized, can have no injurious result constitute no ground for the relief.
Taking up the first proposition, it may be observed that this court has never enjoined the calling or holding of an election, and we believe that this is the first instance where it has been asked to do so. In The People ex rel. v. City of Galesburg, 48 Ill. 485, it was said:
“We are aware of no well-considered case which has enjoined the holding of an election, or prevented an officer of the law from giving the required notices for, or the certificate of, election. To sanction the practice of granting temporary injunctions in such cases would be highly calculated to obstruct the various branches of government in the administration of public affairs. Courts of equity can have no such power, otherwise any and all elections might be prevented, and government greatly embarrassed.” (p. 489.)
In Walton et al. v. Develing et al., 61 Ill. 201, it was held that the court had no power to enjoin the holding of a township election to determine whether a majority of the voters were in favor of subscribing to the stock of a railroad company, and that the defendants, who had violated the order, were not liable for contempt of coürt for disobedience to the writ. In the opinion it was said:
“But the attempt to check the free expression of opinion — to forbid the peaceable assemblage of the people — to obstruct the freedom of elections — if successful, would result in the overthrow of all liberty regulated by law. The mere effort to assume such power is dangerous to the rights of the citizens. If the courts can dictate to the officers of the people that they shall not. hold an election from fear of some imaginary wrong, then people and officers are- entirely subservient to the courts, and the consequences are too fearful to contemplate.
“The principle which would authorize the mighty mandate of a court of chancery, in this case, would justify it in every election to be held by the people, and thus the whole administration of the government might be obstructed and all power and authority placed at the footstool of the judge.” (p. 205.)
In the language of the supreme court of Pennsylvania :
“The power ought to be plain, indeed, to authorize courts to forbid municipal elections when ordered by the legislature. It is not plain, nor do we think it exists.” (Smith v. McCarthy, 56 Pa. St. 359, 362.)
In Weber v. Timlin, 37 Minn. 274, it was held that an injunction will not lie to restrain county commissioners from ordering an election for the removal of a county seat, for the statute providing the mode for contesting elections furnishes a full remedy; and that the complaint did not make a case for an injunction notwithstanding the act of the legislature under which the election was about to be called was invalid.
In the opinion in Lamb v. The B., C. R. & M. R. Co., 39 Iowa, 333, it was said, obiter:
“And further than this, without undertaking to decide the question, we simply state that we should hesitate long before adjudging that any court has the power or jurisdiction to enjoin an election to be held by the people pursuant to a public law. _. . . The jurisdiction of any court, or of the whole judicial department of the government, to enjoin the expression of the popular will at a time and in the manner provided by statute, may well be doubted. If the election when held was not according to statute, or if the statute was enacted without any constitutional authority, the courts might very well hold the election invalid. But that is quite another thing from enjoining the people from peaceably assembling and casting .their votes for or against any proposition submitted to them under the color of law.” (p. 337.)
(To the same effect are: Dickey et al. v. Reed et al., 78 Ill. 261; Harris et al. v. Schryock et al., 82 Ill. 119; Fletcher v. Tuttle, 151 Ill. 41; Morgan v. County Court, 53 W. Va. 372; Fesler, clerk, et al. v. Brayton, 145 Ind. 71; Roudanez v. the Mayor and Administrators of the City of New Orleans, 29 La. Ann. 271; Guebelle et al. v. Epley et al., 1 Colo. App. 199; Mendenhall et al. v. Denham et al., 35 Fla. 250; Jones et al. v. Black et al., 48 Ala. 540; 2 High, Inj., 4th ed., § 1316; Paine, Elec. §§ 940, 941; 10 A. & E. Encycl. of L. 817; 22 Cyc. 885, 886.)
The following cases hold that where no public office is involved, and the election would be void and cause unnecessary expense, a taxpayer who would thereby be injured is entitled to an injunction: Solomon v. Fleming, 34 Neb. 40; Cascaden v. City of Waterloo, 106 Iowa, 673; Mayor of Macon v. Hughes, 110 Ga. 795. In the case last cited the supreme court of Georgia cites Layton v. Mayor and Council et als., 50 La. Ann. 121, where it was held that equity would enjoin the holding of an unauthorized election called for the purpose of ascertaining the popular will on the proposed annexation of territory to the city. After citing the Louisiana case, the supreme court of Georgia said in the opinion:
“That this decision and the one we now make is against the weight of authority is perhaps, true, but nevertheless we think it right on principle. An examination of many of the decisions will show, however, that they were dealing with elections which appeared to be authorized by law, and theré were merely some irregularities in the manner in which they were called or were being conducted. In such cases we also agree that equity ought not to interfere.” (110 Ga. 806.)
On the other hand, in State ex rel. Cranmer v. Thorson, 9 S. Dak. 149, which was an action brought to enjoin the secretary of state from certifying a joint resolution proposing an amendment to the constitution, the relator alleged that he would be injured as a taxpayer by the unnecessary expense, but it was said in the opinion that “any additional burden which might result to relator, as a taxpayer, by reason of submitting this question at a general election, is too trifling, fanci ful and speculative for serious consideration.” (p. 153.)
It should be observed that many of the decisions ■cited holding that courts of equity will not enjoin an ■election are from courts where the distinctions between •courts of law and equity are still preserved, and they proceed upon the theory that equity has no jurisdiction ■of matters which do not affect rights of property, and therefore will take no cognizance of injuries affecting mere political rights. All the cases, however, recognize •the doctrine that courts ought not to interfere with the freedom of elections, from motives of public policy and because it would be an unwarranted interference with the other departments of government. Those courts where the distinction between legal and equitable .remedies is preserved refuse an injunction for the purpose of affording any protection to political rights. ‘Thus, in Hardesty, et al. v. Taft, et al., 23 Md. 512, it was held that the power of a court of equity can not be invoked to restrain the fraudulent or corrupt refusal of a vote by the judge of an election or a similar refusal of the right of registration, for the reason that injuries to such rights can be adequately compensated ■in damages in an action at law. And such courts would refuse an injunction against the canvassing of the votes after an election, contrary to what was held in The State, ex rel., v. Eggleston, 34 Kan. 714. That was a county-seat case, and at the time the decision was rendered the present law was in existence providing for the contest of county-■seat elections, and, as held in The State v. Barton, 58 Kan. 709, 711, the statute contemplates that ■such contest may be had after the election has been held, and “authorizes an inquiry into every preliminary step affecting the validity of the election, including the sufficiency of the petition. (Gen. Stat. 1889, § 2778.) ” The particular ground upon which the court sustained the injunction was that the petition calling for the election was insufficient, and in the opinion it was stated that the action was not brought under the provisions authorizing the contest of such elections. The case appears to stand in a class by itself. While the opinion has been cited in support of other propositions, the doctrine announced — that courts will enjoin the canvass of votes cast at an election — has not, so far as we are aware, been followed or approved.
In Lawrence v. Leidigh, 58 Kan. 676, followed and approved in Wilder v. Underwood, post, p. 441, a claimant to a public office, after bringing an action in quo warranto, sought to enjoin the payment of the salary of the office to the-incumbent. The injunction was refused, and in the opinion it was said:
“Political questions involve matters of strict, often technical, legal right, and a court of equity, whose judgments are largely discretionary, and which always acts with respect to the conscience of cases-, is therefore unsuited for the settlement of such controversies. Nor will it, in a proceeding auxiliary or incidental to the main action, lend its process in aid of either contestant if the object be to hold the functions of the office or the rights of the parties thereto in suspension.” (58 Kan. 677.)
The controversy was over conflicting claims to an office, and it may be said that there is no provision for-contesting an election like the one in the present case but the legality of the election may be tested in proper-proceedings after the election has been held.
While it is doubtless true that actions by mandamus and proceedings in quo warranto, together with the statutory provisions for contesting elections, will usually furnish adequate remedies for wrongs growing out of invalid elections, and that other appropriate actions exist for the protection of the rights of taxpayers after an election has been held, it is probable that cases respecting elections will occasionally arise where the remedy may be sought in a court of equity and before the election. The recent case of The State v. Holcomb, 83 Kan. 256, was an injunction to restrain the county clerk from placing on the ballot the name of a candidate for the office of district judge. The injunction was denied upon the merits, no question being raised as to the power of the court to grant the remedy. It was brought, however, in the name of the state, on the relation of the county attorney, and had the injunction been allowed it would not have interfered in any manner with the election being held at the regular time. Since the distinctions between courts of law and equity no longer exist here, and courts would not hesitate to compel by mandamus a county clerk to place the name of a candidate upon the ballot, no good reason appears why the same court should not, at the suit of proper parties and upon sufficient grounds, enjoin the clerk from placing the name of the candidate thereon. But we can not conceive of conditions where a court of equity would be justified in enjoining the calling and holding of an election, and certainly it should never be done for mere irregularities.
The point is not raised in the briefs that-an action will not lie to enjoin the holding of an election, nor is there any suggestion that a suit of this nature brought to protect public interests can not be maintained by a person having no other interest than one common to all the resident taxpayers. (Craft v. Jackson Co., 5 Kan. 518; Ruthstrom v. Peterson, 72 Kan. 679, and cases cited.)
Another reason why the contentions of the appellant can not be sustained, if it were conceded that he could maintain the action in his capacity as taxpayer, is that it does not appear that he will suffer any injuries as a consequence of the holding of the election. Acts which, though irregular and unauthorized, can have no injurious results constitute no grounds for equitable relief by injunction. (1 High, Inj., 4th ed., § 9, and cases cited; City of Hutchinson v. Delano, 46 Kan. 345; Min ing and Gas Co. v. Gas and Mining Co., 55 Kan. 173; Hurd v. Railway Co., 73 Kan. 83.)
If the result of the election is in favor of the proposed ordinances the statute (Laws 1909, ch. 82, § 31, Gen. Stat. 1909, § 1503) provides that they shall thereupon become binding and valid ordinances of the city; but when they are sought to be enforced, if any person’s rights are affected thereby the courts are open for him to test the legality of the ordinances, as well as of the election by which they were adopted.
One of the grounds urged for the injunction is that the ordinances are unconstitutional because of some defect in their title, but this gives a court of equity no jurisdiction to enjoin the passage of an ordinance. No one would claim that the legislature could be enjoined from the enactment of an unconstitutional law or that the electors could be enjoined from attempting in an unwarranted manner to amend the constitution. It is a familiar principle that injunction will not lie to prevent legislative action by a municipal corporation. (New Orleans Water Works v. New Orleans, 164 U. S. 471; Cape May and Schellenger’s Landing R. R. Co. v. City of Cape May, 35 N. J. Eq. 419; State ex rel. Rose v. Superior Court of Milwaukee County, 105 Wis. 651.) To this rule there are exceptions:
“The general rule is that a municipal corporation, in the exercise of legislative power in relation to the subjects committed to its jurisdiction, can no more be enjoined than can the legislature of the state. There are exceptions, however, to this doctrine of noninterference, as where the mere passage of the ordinance would immediately occasion, or would be followed by, some irreparable loss or injury beyond the power of redress by subsequent judicial proceedings, or where it would cause a multiplicity of suits.” (22 Cyc. 890.)
That this is an attempt to enjoin legislative action is apparent. The initiative and referendum statute provides that upon the presentation of a petition in proper form, duly certified by the city clerk, the mayor and council or the mayor and commissioners shall do one of two things: pass the proposed ordinance within ten days thereafter or call an election and submit the ordinance to the people; and upon its adoption by a majority of the electors it becomes a valid ordinance. This is legislation, either direct by the city or indirect by the people. The suit, therefore, is one to enjoin legislation. In fact the record shows that the temporary restraining order granted at the time the action was commenced restrained the city in express terms either from enacting the ordinance or calling the election. The appellant fails to make a showing of any fact which would bring his case within the exceptions to the general rule that courts will not enjoin legislative action.
The futility of the proceedings to enjoin the submission of the proposed ordinances' is likewise obvious when we reflect that the people may not adopt them, and the court ought not to be called upon to anticipate conditions which may never arise. The court‘will not decide, at the mere suggestion of a taxpayer, whether the city has the right to sell or lease its electric-light plant, because there is no certainty that any attempt to lease or sell it will be made. The validity of such a transaction is at this time a moot question with which courts will have nothing to do. Courts will not express an opinion upon an abstract question which does not arise on existing facts or rights, or where it is sought merely to obtain the opinion of the court upon a question of law. (Knight v. Hirbour, 64 Kan. 563; Crouse v. Nixon, 65 Kan. 843; The Queen v. The Directors of the Blackwell Railway, 9 Dowl. Pr. C. [Eng. 1841] 558; 27 Cyc. 911.)
It follows from what has been said that the order refusing the temporary injunction must be affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Adaline Smith died in 1908, intestate, owning an undivided half interest in a farm in Reno county, consisting of 160 acres. The parties to the appeal are her heirs at law. A few months before her death she executed and delivered to the appellant, who is her son, deeds purporting to convey her interest in the land. The appellees sued the appellant to cancel the deeds and asked that the land be partitioned. Henry 0. Smith originally owned the land and died intestate, in 1899, leaving his widow, Adaline Smith, and the parties to this action his only heirs at law. Soon after his death the widow and children entered into the following written agreement:
“We, the undersigned heirs of the estate of H. 0. Smith, deceased, do hereby agree that Mrs. Adaline Smith shall keep all of the home place for life; then it to be sold and divided equally among the heirs.”
In the petition it was alléged that at the same time there was a verbal agreement between all the parties that the appellant should reside with his mother on the farm, cultivate the same, and in consideration of the rents thereof should clothe and care for his mother the remainder of her lifetime, and should pay all taxes against the land. The petition then alleged that a few months before his mother’s death the appellant, in disregard of his written agreement, and by means of importunities, threats, misrepresentations "and undue influence, prevailed upon her to execute deeds conveying the title of the land to him; that at the time the deeds were executed Adaline Smith was incapable of making a valid conveyance, by reason of being old, sick and of feeble mind; that the. appellant paid no consideration whatever for the conveyances; and that they were made without the knowledge or consent of .the appellees.
The answer specifically denied the averments of fraud and undue influence in procuring the execution of the deeds or that the grantor was ■ incapable of making valid conveyances, and as a further defense alleged that the written agreement entered into between the heirs of Henry 0. Smith had no reference to> the undivided portion of the homestead and was made without consideration, and therefore not binding upon, the appellant, and that since its execution the written agreement had been altered by interlining the word “equally” in the last line thereof. The court found generally for the appellees and against the appellant.
The first contention is that there was no competent evidence showing the incapacity of Adaline Smith to make the conveyances. It is said that there was only one witness, in addition to the appellees themselves, who testified that she was mentally incapacitated from understanding the nature of her action in executing the conveyances. The objection that most of the witnesses were interested parties goes only .to their credibility. Besides expressing their opinions, the witnesses testified to the facts upon which their opinions were based and which tended to show that Mrs. Smith, who at the time of her death was seventy-nine years of age and had been in poor health about two years, was confined to her bed most of that time, and was mentally incapacitated by feebleness and old age from making a valid conveyance. Although the witnesses were nonexperts, they were competent to testify respecting the mental capacity of Adaline Smith, and the weight of their testimony was a question for the jury. (Baughman v. Baughman, 32 Kan. 538; Howard v. Carter, 71 Kan. 85, 91, 92.) There was a sharp conflict in the evidence on this point, but there was substantial and competent evidence to support the findings of the trial court. (Hudson v. Hughes, 56 Kan. 152; Medill v. Snyder, 61 Kan. 15, 20.)
The main contention is that there was no testimony to sustain the issue as to undue influence; and in this connection it is insisted that there was a presumption in favor of the conveyances having been executed fairly and that the burden of showing the contrary rested upon the appellees. In support of this claim the appellant relies chiefly upon Ginter v. Ginter, 79 Kan. 721. The instrument there attacked was a will; this is a conveyance by deed, a gift between living persons. The appellant admits that he paid nothing for the conveyances except the nominal consideration of one dollar. There was a confidential and fiduciary relation existing between him and his mother. She was old, and feeble in health. She lived at his home, under an agreement by which he was to care for her in her old age. On April 8, 1907, he had a quitclaim deed prepared conveying to him the west half of the home place. He selected the witnesses to be present when the deed was to be executed, and arranged for a justice of the peace to come to the house where his mother signed and acknowledged it. Two months afterward, having heard in some way that his mother had but an undivided interest, he had a warranty deed prepared conveying to himself an undivided half interest in the land, again selected the witnesses to be present, and had his mother sign and acknowledge the instrument before an officer in their presence. None of the other heirs was present or knew anything about the conveyances. These circumstances were sufficient to raise the presumption of unfairness in the transaction, and equity at once placed the burden of proof upon the appellant to meet this presumption — the obligation to explain by proof showing that his mother was free from undue influence at the time she made him a gift of her property. (Paddock v. Pulsifer, 43 Kan. 718; Hill v. Miller, 50 Kan. 659.)
The opinion in Ginter v. Ginter, supra, expressly recognizes certain exceptions to the rule which it was held governed that case; and within these exceptions the present case falls beyond question. The opinion quotes at length (pp. 744, 745) from the case of Parfitt v. Lawless, 2 Prob. & Div. (Eng. 1872) 462, where the English court refused to apply the doctrine which obtains in relation to gifts inter vivos to the case of a will, stating the rule as applied to gifts inter vivos, as follows:
“In equity persons standing in certain relations to one another- — such as parent and child, man and wife, doctor and patient, attorney and client, confessor and penitent, guardian and ward — are subject to certain presumptions when transactions between them are brought in question; and if a gift or contract made in favor of him who holds the position of influence is impeached by him who is subject to that influence, the courts of equity cast upon the former the burthen of proving that the transaction was fairly conducted as if between strangers — that the weaker was not unduly impressed by the natural influence of the stronger, or the inexperienced overreached by him of more mature intelligence. ... In the first place, in those cases of gifts or contracts inter vivos there is a transaction in which the person benefited- at least takes part, whether he unduly urges his influence or not; and in calling upon him to explain the part he took, and the circumstances that brought about the gift or obligation, the court is plainly requiring of him an explanation within his knowledge. ... A more material distinction is this: the influence which is undue in the cases of gifts inter vivos is very different from that which is required to set aside a will. In the case of gifts or other transactions inter vivos it is considered by the courts of equity that the natural influence which such relations as those in question involve, exerted by those who possess it to obtain a benefit for themselves, is an undue influence. Gifts or contracts brought about by it are, therefore, set aside unless the party benefited by it can shew affirmatively that the other party to the transaction was placed in such a position as would enable him to form an absolutely free and unfettered judgment. . . . The law regarding wills is very different from this.”
Another case cited with approval (79 Kan. 747) is that of Bancroft v. Otis, 91 Ala. 279, where it was said in the opinion that the authorities are almost too numerous to be cited which hold that the rule imputing undue influence to confidential relations in respect of transactions inter vivos has no application to wills, and that before the presumption obtains in the case of a will “something in addition to the mere existence of confidential relations must be shown; as, that the proponent initiated the preparation of the instrument, or wrote it himself, or gave directions as to its contents to the draughtsman, or selected the witnesses to be present at its execution, and the like; or, in short, that the beneficiary, whose interest under the paper is attacked, was as a matter of fact — aside from mere pre sumption of law — active in respect to, or in some way connected with, the preparation and execution of the alleged will.”
Numerous additional authorities are cited in the opinion in the Ginter case in support of the well-established distinction between the rules as to the burden of proof in the two classes of cases, and the court then proceeds to declare the rule governing the presumptions as to the validity of- wills and the burden of proving undue influence with respect to the making of them, but nothing there said in any way supports the contention of the appellant in the present case.
The confidential relations existing between the appellant and his mother having been clearly established, a presumption arose of undue influence, and the burden rested upon him to show that the transaction was free from such influence.
In addition to the presumption which in equity arises from the situation of the parties and their relations to each other, the circumstances under which .the conveyances were obtained are suggestive of unfairness on the part of the appellant amounting to undue influence. The fact that he initiated the proceedings, directed the preparation of the deeds, arranged for their execution, selected the witnesses to be present, and that none of the other members of the family was informed of the transactions, were circumstances hardly to be overcome by his denial of undue influence and the testimony of witnesses that the grantor appeared to understand what she was doing.
Since the conveyances were rightly set aside on the ground that they were obtained by undue influence, it becomes unnecessary to consider the contention that the written agreement between the heirs of H. 0..Smith was testamentary in character and passed no present interest in the land, that it was without consideration, or that it was altered after the appellant signed it.
The judgment is affirmed. | [
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In the official report of this case (Oil Co. v. Drilling Co., 80 Kan. 261), the following special concurrence was inadvertently omitted. | [
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The opinion of the court was delivered by
Benson, J.:
Errors are assigned relating to the admission of testimony and the instructions, and in sustaining the verdict upon the evidence.
The alleged insufficiency of the evidence relates to the question of identity. In the brief for the defendant it is said: “The defense was simply that the defendant was not the right man; that if someone had defrauded the banks it was not Clyde Hetrick.” The fact that he had lived all his life in the neighborhood and was in no financial straits, that he had been at Overbrook frequently and would likely be recognized at the banks, that the cashiers appeared to be so uncertain that they inquired of a neighbor of the defendant whether his name was Clyde Hetrick, and other circumstances, together with the ingenious nature of the scheme, as unfolded by the state, are urgently, insisted upon as reasons why the positive testimony of the cashier of the state bank that the defendant was the man who presented the checks and obtained the money under the name of A. C. Cotes should not be believed. All these matters were before the jury, and doubtless were also carefully considered by the court on the motion for a new trial. This court can only inquire whether there is competent evidence, which, if believed, sustains the verdict.
“The credibility of witnesses and the weight of their testimony, if competent, must rest with the jury and the trial court.” (The State v. Plum, 49 Kan. 679, syl. ¶ 2.)
This rule is commonplace in the jurisdiction of this state.
An alleged error in the admission of testimony is based upon an objection to the following question, propounded to the prosecuting witness:
“Would you have advanced him the $93 if you had not believed from your conversation with him that he was the A. C. Cotes named as payee in that check?”
The objection was that the question was “incompetent, irrelevant and assuming a fact not proven,” and was overruled. The answer was in the negative. This ruling is complained of. The fact sought for was the state of mind, or motive, that induced the cashier to part with the money. The precise form of the question is not important, unless it is leading and suggestive. A condition or state of mind may be shown by the accompanying circumstances, it is true, but it may also be shown by the direct testimony of the person himself, under the rule stated in Bice v. Rogers, 52 Kan. 207, approved and followed in The State v. Kirby, 62 Kan. 436, viz.:
“It is now well settled that upon an issue of fact as to whether a transfer of property was made for the purpose of hindering, delaying or defrauding creditors, it is competent, where .the one who transfers is a witness, to inquire of him whether in making the transfer he intended to hinder, delay or defraud his creditors.” (Bice v. Rogers, 52 Kan. 207, 210.)
“The prosecutor, when examined as a witness, may testify that he believed the pretenses, and, confiding in their truth, was induced thereby to part with his money or property.” (In re Snyder, Petitioner, &c., 17 Kan. 542, syl. ¶2.)
It has been held proper, in an. action for false representations, to inquire of a witness, “What induced you to sign the papers?” (Knight v. Peacock, 116 Mass. 362.) In another case of the same nature practically the same question was held admissible (Charbonnel v. Seabury, 23 R. I. 543), and in Milwaukee R. M. Co. v. Hamacek, 115 Wis. 422, the question, “Did you rely upon the representations?” was held to be proper. The rule and the reason upon which it is founded are stated in section 581 of volume 1 of Wig-more on Evidence, and in section 170 of the second edition of Jones on Evidence. Among other illustrative cases are: Armstrong v. People, 70 N. Y. 38;. Ferguson v. State, 71 Miss. 805; Com., to use, v. Julius et al., Appellants, 173 Pa. St. 322; Brown v. State, 127 Wis. 193.
Objection was also made to the testimony showing-the transaction in the national bank. Counsel frankly say that evidence of statements to other persons similar to those upon which the money was obtained are-competent, but that it was error to allow proof “of the fruits of such statements,” viz., of the giving of a Certificate of deposit by the other banker. This was admissible, in connection with the evidence that the two certificates were found by the roadside together-on the same day and soon after they were obtained, as. a circumstance tending to show that the same man made the representations at both banks. Proof of a collateral offense may be relevant in order to identify a defendant. (Whar. Cr. Ev., 8th ed., § 47.) It is relevant to show that the defendant has made similar-pretenses at another time and place. (Jones, Ev., 2d ed., § 146.) Facts relevant to the issue are not excluded merely because they tend to prove another offense. (The State v. Adams, 20 Kan. 311; The State v. Franklin, 69 Kan. 798; The State v. Cooper, 83 Kan. 385.) The admission of the evidence did not conflict, with the familiar rule that proof of another crime having no connection with the one for which the accused is being tried is inadmissible.
It is also insisted that the cross-examination of a-witness for the state was too strictly limited, but this objection appears to be without merit.
Complaint is made because the court, in instructing the jury concerning the proof of the falsity of the representations set out in the information, stated that it was sufficient if “said representations and pretenses. or some one or more of them were untrue and false and known to be so by the defendant.” This was said in immediate connection with a statement of the other elements of the crime, and the proof necessary to convict. The objection is to the use of the words “or some one or more of them,” which, it is contended, makes the instruction erroneous. This contention can not be upheld. The proof of one pretense within the statute, operative in inducing the payment, was sufficient. (Whar. Cr. Ev., 8th ed., § 131.) The pretense which induced the payment need not be the sole inducement if it had a controlling influence. (The State v. Briggs, 74 Kan. 377.)
“It is sufficient if they [the false pretenses] are a part of the moving cause, and, without them, the defrauded party would not have parted with the property.” (In re Snyder, Petitioner, &c., 17 Kan. 542, syl. ¶ 8.)
The language complained of, in the connection in which it was used, and as a part of the entire charge, was not misleading or erroneous.
Upon the whole record we find no error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The United States Banking Company, a corporation organized under the laws of the Republic of Mexico and doing business in the City of Mexico, brought this action against Anna Wilson Veale to recover on a promissory note for 9243.57 pesos, and another for 282.29 pesos, and also for interest and attorney’s fees on each, stipulated for in case the notes were not paid at maturity. It was alleged that the pesos mentioned were of the value of fifty cents in legal tender of the United States. The defendant answered that the notes had been paid, that they were barred by the lapse of time, that there was no consideration for her signature, that she had no authority from her husband to sign her own name to the notes nor that of her husband, and that he had not since the signing of the notes consented to her action. She also alleged that John J. Judd, whose name is also signed to the notes, informed her that her husband’s notes had fallen due at the bank “and that she must sign his name to the renewal note, and also sign the same herself, and if she failed to do so that it would be to the great injury, loss and damage of her husband; that, believing such statement to be true, she signed her husband’s name to said notes, and also her own.” The reply was a denial of the averments of the answer, and it contained a verified denial of the averment that Judd acted as the agent of the bank in procuring the signing of the notes.
When the cause came on for trial the parties submitted the following stipulation:
“A trial by jury of the general issues, and a general verdict from the jury, is waived, and all of the issues in this case submitted to the court; except the court, if he thinks the evidence warrants, shall submit to the jury the question of the execution of the note by the-defendant under duress, and the finding of the jury upon that question shall be received and considered the.same as the finding of the jury upon any question of fact in a law case.”
A jury was called by the court, as to the charge of duress, but after the testimony had been received the trial judge determined that he was not warranted in submitting the question to the jury, and all the questions in the case were taken and decided by the court.
The evidence disclosed that appellant and her hus band, Walter J. Veale, were citizens of Kansas, but had been residing in the Republic of Mexico since the year 1896, and that while there he had become indebted to the appellee and had given his note for the debt, and that John J. Judd had signed it as surety.’ When the note became due Veale and Judd were both absent from the City of Mexico. Veale telegraphed Judd that he was unable to pay the note and requested him to intercede for and procure a renewal. Judd returned to the city before Veale did, which was several days after the note was due. He called on Mrs. Veale, and, according to her testimony, told her of the situation — that the renewal notes had to be signed that day, and when she-inquired' if he could not wait for the return of her husband he told her that it could not be postponed till her husband came home; that it would be a great detriment to her husband if it was not fixed that day, and so she went to the bank with Judd and signed her husband’s name to the notes, and also signed her own name as surety. Mr. Veale returned to the city shortly after the execution of the notes and learned of the action taken, but it does not appear that he made any objection to the bank or to Judd in regard to the execution of the renewal notes, but, on the other hand, he repeatedly promised to pay them. About three years later he made a payment of $450 to the bank, for which a credit was given on the notes.
Although appellant did not plead the laws of Mexico^ relating to the capacity of a married woman to sign-notes for her husband or herself, or to enter into contracts, testimony on the subject was received, and', based on that the court found as follows:
“The law of Mexico at the time the notes in suit were executed was that the husband is the legal representative of his wife, and that, except in the cases provided by law, the wife can not obligate herself without the express authorization of her husband. The law of Mexico at the time the notes in suit were exe ■cuted further provided, as an exception to the law stated above, that a wife could obligate herself as a guarantor or surety for her husband.
“At the time the notes in suit were executed, and •continuously to the date of trial, the law of Mexico was that if the husband expressly or tacitly ratified the acts of his wife no one could bring a suit for a nullity, a suit for a nullity being the remedy afforded by the Mexican law for the redress from a voidable contract.
“At the time the notes in suit were given, and ever since, the failure of the husband, with knowledge of the unauthorized action of his wife in personally assuming an obligation, to object thereto was a tacit ratification within the meaning of the Mexican law, and a voluntary payment on such obligation by him with such knowledge was an express ratification, and either such tacit or express ratification would validate such unauthorized act.
“Walter J. Veale returned to his home in the City of Mexico in two or three weeks after the execution of the notes by his wife, as narrated in finding No. 8, and was immediately notified of his wife’s said action. No objection was ever made by said Walter J. Veale, or by anyone for him, to said bank, or to said Judd, or to any other person, on account of the said action of his wife in executing said notes, until after this suit was com-' menced, and said Walter J. Veale repeatedly promised and agreed to pay the same, giving his financial inability as his only reason for not doing so, and on January 21, 1907, did pay to said bank on said notes the sum of $450, Mexican, which sum was by the bank ■credited on said indebtedness and indorsed on said principal note.”
On the findings of fact the court concluded that the ■appellant had legal capacity, under the laws of Mexico, to execute the notes, and that appellee was entitled to .judgment for the amount demanded.
As to the capacity to execute the notes there is little ground for contention. It is true that the laws of Mexico, as proven, merge the individuality of the wife into that of her husband and give a married woman but few rights and privileges. The husband is the repre sentative of the wife, and he may ratify her acts, either expressly or tacitly. As the trial court correctly held, there is an exception to the disqualification of women, in that they may be sureties, “if they obligate themselves in respect of a thing which belongs to themselves or in favor of their ancestors, descendants or husbands.” Here Mrs. Veale became a guarantor or surety for her husband, and so far as the matter of the consideration for her obligation is concerned the agreement to extend the time of the payment of her husband’s indebtedness is a sufficient consideration for her guaranty of its payment. (Fuller v. Scott, 8 Kan. 25; Winans v. Manufacturing Co., 48 Kan. 777; Bank v. Leslie, 72 Kan. 401.)
The provision quoted is part of the civil code, which provides for the marital relations of husband and wife and which defines the powers and privileges of women. Attention is called to a provision of what is termed the commercial code, to the effect that a married woman can not carry on commerce without express authority from her husband, but, manifestly, this provision relates to the running of a business on her own account ,* that is, she can not be a merchant or storekeeper, or engage in a particular branch of commerce, unless she has the express authority of her husband. It does not apply to single transactions like that in question. If his cohsent and authority were necessary to her right to execute the paper under the laws of that country, their absence has been supplied and the defect cured. Among the provisions relating to husband and wife are the following:
“Art. 203. The nullity of the acts of the wife, founded on the want of a marital or judicial license, can not be set up except by herself, by her husband, or by the heirs of both. If the husband has expressly or tacitly ratified the acts of his wife, no one can bring a suit for nullity.
“Art. 1677. When the contract is null through ‘in capacity,’ intimidation, or error, it may be ratified on the defect or cause of the nullity ceasing, there being no other cause which invalidates the ratification.
“Art. 1678. The ratification and voluntary fulfillment of an obligation by means of payment, novation, or otherwise, executed with the same formalities, is held to be a ratification, and can not be impugned.”
If the appellant could not bind herself without the consent of her husband, and if ratification was needed to give her act validity, he effectually ratified it when he made a voluntary payment of a substantial amount upon the notes. Under the provisions quoted, it is competent for him to ratify her contracts either for incapacity or for intimidation. The common law authorities cited by' appellant on ratification are not applicable here, as this contract, having been made in Mexico, is to be interpreted and its validity determined by the laws of that country, and it is well known that the common law of that country is based on the civil and Spanish laws, and is something quite different from the common law of this country and of this state. As was said in De Sonora v. Casualty Co., 124 Iowa, 576:
“We know that Mexico was a Spanish province for about three hundred years, and then became, and still is, a republic. At no period of its history has it been under British sovereignty. Its institutions are Latin, not Anglo-Saxon, and the common law is not presumed to be in force in any state or country where English institutions have not been established.” <p. 587.)
One of the witnesses who testified in regard to the law of ratification in Mexico stated that payment on a note was an active ratification of its execution, while a tacit ratification was a failure to object or contest It in the courts of the country. There was testimony, too, that under the laws of that country the husband is the legitimate representative of his wife, and that he may ratify her acts expressly or tacitly, directly or indirectly, provided no third .party is thereby damaged.
Complaint is made of the action of the court in refusing to submit to the jury the testimony relating to duress. It is doubtful whether, under the stipulation, there would have been error in such a refusal, even if substantial testimony of duress had been offered. It is a peculiar stipulation, wherein a general verdict is waived and wherein the court is vested with discretion to call a jury for the decision of a single issue. It does not provide that the court shall absolutely leave that question to' the jury, but rather that it may do so if, after receiving and considering the testimony, it feels warranted in submitting it to the jury. The situation is somewhat similar to an equity case, where the court, .at its option, -may call in a jury for advice and' to answer special questions of fact, and is then at liberty to approve or reject the answers as its judgment may direct.
But if it. be treated as an absolute reservation of. the right of a jury trial on that issue, no substantial error was committed by the court in taking the question from the jury. Under the circumstances of this case it can not be held that either the averments of the answer or the testimony of appéllant shows that there was duress in the execution of the notes. Her husband's notes had matured in his absence, and Judd, a surety on the paper, had been telegraphed by him to intercede with the bank for an extension of the paper. He could obtain an extension by procuring her to sign the notes, and visited her for that purpose. The only averment of the answer which had the semblance of pressure or constraint was the statement that unless she signed the notes it would result in injury and loss to her husband. This result would‘necessarily follow if the holder of the note should begin proceedings to enforce the collection of the debt. In her testimony she stated that Judd told her that “it had to be fixed up to-day; that it would be a great detriment to my husband, and I did n’t know what might happen; to fix up the notes to-day; so I had to go with him.” When she went to the bank to execute the notes, no objection was made by her to the signing of the paper, and it does not appear that anyone connected with the bank talked with her about the matter or even knew of the conversation between her and Judd prior to the execution of the paper. In view of the relations between the Veales and Judd, it can hardly be conceived that what was said by him operated to deprive her of the exercise of free will or to render her incompetent to contract. Friendly relations existed between the parties before and after the signing of the notes, and up to the time the action was brought. They visited together, but no complaint was made either by her or her husband that undue influence had been exerted upon her. She was an intelligent woman, had a bank account of her own, and drew checks upon the bank and was able to transact business for herself. To suggest that a failure to arrange for her husband’s default would bring trouble and loss hardly amounts to a threat, and is little more than to say if the matter is not adjusted the bank will institute judicial proceedings, something which it had a right to do and something which she would know and expect. Duress '“is that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind and will of a person of ordinary firmness.” (McCormick v. Dalton, 53 Kan. 146, 149.) It is not easy to say that Judd’s conduct was wrongful or fraudulent, and still more difficult to say that it overcame her will or measured up to duress as defined by law. That neglect of the overdue debt would bring litigation and loss was doubtless anticipated without suggestion from anyone, and, ordinarily, it is not duress to threaten to do that which a party has a right to do; and even if the by law.” The bond given was for this sum. It would seem, therefore, that the only stay actually ordered was for ninety days from January 5, 1906.
On November 4, 1907, the appellant — the state of Kansas — filed a petition seeking to enforce the statutory lien upon the premises against the appellee, who was the alleged owner thereof. Service was had, or attempted, but such service was quashed December 21, 1908, on the motion of the appellee, who appeared specially for that purpose. On February 15, 1909, an amended petition was filed and service thereof was had by publication, the first publication being on February 18, 1909, the affidavit therefor being filed the same day. September 25, 1909, the appellee demurred to the amended petition, which demurrer was, on March 1, 1910, sustained, and the action dismissed. The state appeals.
It is insisted by the appellee that the cause of action on February 18, 1909, when the first publication was had, was barred by the statute of limitations, and that the amended petition failed to state facts sufficient to constitute a cause of action. His contention as to the first proposition is that the cause of action accrued on December 30, 1905, when Thomas was convicted, and that no action was really begun until February 18, 1909, which was more than three years from the date of conviction. Section 19 of the civil code provides that an action shall be deemed commenced as to each defendant at the date of the summons which is served on him, and, when service by publication is proper, at the date of the first publication; and that an- attempt to commence an action shall be deemed equivalent to the commencement thereof, if followed by publication or service within sixty days. But such service or publication must be had before the limitation has run, in order to keep the cause of action alive. (Dunlap v. McFarland, Adm’r, 25 Kan. 488; Insurance Co. v. Stof fels, 48 Kan. 205; Wester v. Long, 63 Kan. 876; Green v. McCracken, 64 Kan. 330.)
The lien attaches, and, ordinarily, the cause of action accrues at the date of conviction, and is barred in three years. (The State v. Pfefferle, 33 Kan. 718; Durein v. Pontious, 34 Kan. 353; Snyder v. The State, 40 Kan. 543; Karcher v. The State, 80 Kan. 757.)
The appellant contends that the giving of the bond stayed all proceedings looking toward the enforcement of the judgment, both as to the appellee and as to Thomas, and that if there was no judgment to enforce against Thomas there was none to enforce against the appellee. The'question thus presented is not free from difficulty. Was the judgment in abeyance for ninety days from the time of giving bond, as indicated by the order of the trial court, or was it suspended until affirmed? Or, more correctly speaking, was the lien of the judgment in abeyance and unenforceable during either of these periods so as to toll the statute of limitations, or was it from the date of conviction so continuously alive and vital as to keep the statute of limitations running?
The statute under which the appeal was taken (Crim. Code, § 287) provides that such appeal shall stay execution when the judgment is for a fine or fine and costs only; that in misdemeanor cases “the execution of the judgment” shall be stayed by order of the court or judge, upon the giving of a bond in such sum as shall be prescribed, that the stay shall be granted on serving the usual notice of appeal, and that the transcript may be filed in the supreme court at any time within ninety days after the rendition of the judgment, and not otherwise; that if the transcript is filed within the prescribed time “then the stay shall continue to be in force until the case is finally disposed of in the supreme court, but not otherwise.” It will be seen that on giving bond execution only is stayed, and that doubtless means the execution of the judgment against the person who hás been convicted and is appealing. There is nothing in the statute indicating that the judgment or the lien thereof is either vacated or suspended during pendency of the appeal, execution only being stayed. This statute in language and effect is quite similar to section 586 of the civil code, which applies to civil actions and provides that an appeal shall not stay execution unless a certain bond be given. Hence a construction of tUlatter section should shed light as to the meaning of the former.
In The State v. Volmer, 6 Kan. 379, it was held that an appeal from a judgment of conviction, where the sentence was to pay a fine only, suspended the effect of the judgment until final judgment in the appellate court; but there it appears that the conviction had first been had in a justice court, and on appeal to the district court another conviction, the statute then providing, as it does now, that an appeal from conviction in a justice court should stay all further proceedings upon such judgment.
In Soper v. Medberry, 24 Kan. 128, the court said:
“On January 2, 1877, the case was decided by the supreme court, and the judgment of the district court was affirmed. The judgment of the district court was never disturbed in any manner or particular, but it was allowed to remain final, .and just such a final judgment as is contemplated by said section 310 of the civil code. The mere taking of a case to the supreme court does not in any case destroy the judgment previously rendered therein; nor does it even suspend the operation of such judgment, unless a bond is also given for such purpose; and, if the judgment is affirmed, no new judgment is rendered, but the old judgment originally rendered remains intact, in full force and effect, and final. The principal question before the supreme court when a case is brought before it on petition in error is whether the judgment originally rendered in the case shall remain final, or whether it shall be reversed, vacated or modified; and where the supreme court affirms the judgment, it determines that the judgment shall remain final. The judgment in this case remained a final judgment for more than one year, and even for more than two years, before the case was. taken to the supreme court; and it remained a final judgment for more than one year while the case was pending in the supreme court. It remained a final judgment for more than four years altogether, before the said petition (this application) for a new trial was filed. We do not think that the petitioners filed their petition for a new trial in time, and therefore the judgment and order of the district court granting a new trial on such petition must be reversed.” (p. 135.)
In City of Miltonvale v. Lanoue, 35 Kan. 603, it was held that, upon conviction before a police judge and afterward in district court for violation of a city ordinance, an appeal to the supreme court suspended the entire judgment, which was for fine and costs only. The court, in discharging the convicted person on habeas corpus, said:
“And always where an appeal is taken in such a case, the judgment itself with regard to the fine and costs is suspended pending the appeal. (The State v. Volmer, 6 Kan. 379, 384.) Indeed it is a general rule that an appeal suspends the judgment or order appealed from, and everything connected therewith, unless the statute in express terms or by the clearest of implications provides otherwise; and there is no statute providing otherwise in the present case. In an ordinary criminal prosecution, where imprisonment is imposed upon a defendant as a part of the punishment, then the statute provides that there shall be no stay of the execution of the judgment pending the appeal. (Crim. Code, § 287.) But there is no statute providing that there shall be no stay where the judgment imposes only a fine and costs. Hence a judgment imposing only a fine and costs must be stayed pending an appeal. And if the judgment for the fine and costs is to be stayed, it would seem to follow that all incidents thereof, all judgments or orders having for their object merely the enforcement of the judgment for the fine and costs, should also be stayed or be suspended pending the appeal. And clearly, we think, such is the case.” (p. 605.)
In Clarkson v. Hibler, 39 Kan. 125, the petitioners were convicted of contempt in disobeying a subpoena, and it was held, upon the authority of City of Miltonvale v. Lanoue, 35 Kan. 603, that pending the appeal the entire judgment was suspended — that with regard to the imprisonment, as well as that with regard to the payment of fine or costs. There, as in the Lanoue case, the imprisonment was held to be no part of the penalty, but only a means of enforcing the penalty.
In Bird v. Gilbert, 40 Kan. 469, it was held that an appeal from an order adjudging an attorney guilty of contempt, and enjoining him from practice until purged of contempt, operated, where a stay had been duly granted, to restore to the appellant all his former privileges in court; but there the order expressly suspended judgment, and also stayed its further enforcement.
In Willard v. Ostrander, 51 Kan. 481, it was held that the filing of a petition in error and the execution of a stay bond did not destroy or suspend the effect of the judgment as evidence, nor as a determination of the rights of the parties, while the case was pending in this court. The action was brought to recover the value of certain sheep alleged to have been converted. Evidence was offered of the pleadings and judgment in another case tried in another county, which was then pending on appeal. The trial court refused to receive evidence of the supersedeas bond, holding that the judgment was in full force as an adjudication of the rights of the parties, notwithstanding the proceedings in error and the filing of this bond. Mr'. Justice Allen, in the opinion, goes thoroughly into the reasoning and authorities and reaches the conclusion that the sfay of execution has no other force or effect on the judgment than simply to prevent its enforcement by execution. After citing numerous authorities to the effect that the judgment itself is stayed, he cites numerous authorities
holding to the contrary, and quotes (p. 488) from Moore v. Williams, 132 Ill. 589:
“An appeal from a decree does not destroy its operation as a former adjudication. It does not vacate the •decree, but simply suspends its execution. It leaves the decree in full force as a merger of the cause of action and a bar to further litigation.” (Syl. ¶ 3.)
As to the hardship in some cases worked by this construction he said:
“We are unable to find any language used by the legislature which seems to us to imply that a stay of execution has any other force or effect on the judgment than simply to prevent its enforcement by execution. On the contrary, as a determination of the rights of the parties, it remains in full force pending the proceedings here. It is apparent that this construction of the law may work great hardship in some cases. The trial courts, however, have ample power, when it is apparent that injustice may be done, to grant continuances until a case pending in this court, sought to be used as a bar or estoppel, is determined, and it would seem to us, where an appeal to this court has been taken in good faith, and a sufficient bond to stay execution has been given, that if the introduction of a judgment in another case would have the effect, as in the case now before us, to permit the party holding the judgment, through the medium of another action, to collect that judgment, that the trial court should always, on the proper showing being made, continue the trial until after the case pending here is determined. Only in this way can full justice be done.” (51 Kan. 489.)
In Delay v. Yost, 59 Kan. 496, it was held that the statute of limitations runs against an action on a replevin bond where proceedings in error are pending but where no supersedeas bond has been given. It was contended that the cause of action did not . accrue until the judgment in replevin was affirmed; that so long as the action was pending, either in the district or in the supreme court, the condition of the replevin bond duly ■to prosecute had not been violated. But the court held (p. 499) that the cause accrues upon the rendition of the judgment, that the'mere taking of the case to the supreme court does not suspend its operation unless a bond be given for such purpose, and that even the giving of such bond has no other force or effect on the judgment than simply to prevent its enforcement by execution, citing Heizer v. Pawsey, 47 Kan. 33, where it was held that proceedings in error and the giving of a supersedeas bond do not prevent the maintenance of an action upon a bond given to discharge the defendant from arrest in the original case, under the arrest and bail act.
In McDonald v. Symns, 64 Kan. 529, an attachment had been discharged by an order of a judge at chambers, and a proceeding in. error operating as a stay of the order had been pending nearly five years when it was affirmed, and it was held that such proceeding in error and stay did not toll the statute of limitations as to a cause of action for the conversion of the property. The court said:
“The action to recover the property or the value thereof in replevin or for the conversion of the goods might have been maintained at any time after the wrongful seizure of the goods by the sheriff. . . . The stay resulting from the proceeding in error did not operate to suspend proceedings in the trial court further than to stay execution of the order sought .to be reviewed. (Heizer v. Pawsey, 47 Kan. 33; Willard v. Ostrander, 51 Kan. 481; Delay v. Yost, 59 Kan. 496.)” (p. 532.)
In Lisle v. Cheney, 36 Kan. 578, it was held- that a personal judgment in a foreclosure action is a lien on all the real estate of the debtor within the county, and attaches to after-acquired land therein, and that a stay of execution on such judgment does not operate to suspend the lien so that a third person can purchase land from the debtor during the stay, free.from the lien. Commissioner Simpson in the opinion said:
“The lien thus created and declared by statute exists until the judgment becomes dormant, or is jarred by the statutes of limitation. It is true that under section 468, it may become subordinate to the lien of some other judgment creditor, by failure to have execution issued and levied within a year after its rendition. . . . By operation of law a stay of execution is allowed in certain actions in which there is a waiver of appraisement. (Code, § 453.) Even this does not operate on the judgment or lien; it does not have the effect to impair the lien. If it is a first one, its seniority must be preserved by levy within the year. . . . It is a very common practice in this state to grant to the judgment debtors a stay of execution, and it has been done, without a claim ever having been asserted before that the lien of the judgment was suspended during the time of the stay; and while this fact is not conclusive, we cite it only for the purpose of showing that the construction we give the statute is the one that has been adopted and acted on by the bar for years. We conclude, therefore, that the stay of execution did not suspend the lien of the judgment in the foreclosure action of Dunham, v. Weaver, so as to protect the plaintiff in error in his purchase of the • land from Mrs. Weaver.” (p. 587.)
In Howard Ins. Co. v. Silverberg, 94 Fed. 921, the court of appeals of the ninth circuit refers to a New York statute which provides that “an action shall not be maintained upon the undertaking given upon the preceding appeal until after the final determination of the appeal to the court of appeals” (p. 925), and said:
“By implication, the statute permits such an action, in the absence of an undertaking to stay the execution, and it accords with the practice prior to the adoption of that provision of the code.” ' (p. 925.)
But our statute neither in terms nor by implication gives any effect to a stay other than the suspension of the right to issue execution. In State of Iowa v. Mateer, 105 Iowa, 66, one had been convicted and sent to jail for selling liquor, and the governor, under his power to pardon and “remit fines and forfeitures,” ordered a suspension of the further execution of the judgment. It was held that an action to enforce a lien against the premises where the sales had been made could not be maintained so far as the fine was concerned, so long as the governor’s order remained unrevoked, but that this was not true as to the costs. It was held in Johnson v. Williams &c., 82 Ky. 45, that after a judgment has been superseded by the debtor the creditor can not bring an action upon it and protect it by suing out an attachment against the debtor’s property. This ruling was referred to in Cavanaugh v. Britt, 90 Ky. 277, where it was also stated that the statute itself provides that “in all cases where the doing of an act necessary to save any right or benefit is restrained or suspended by injunction, or other lawful restraint” (p. 277), the time covered by th'e restraint shall not be estimated in the application of the statute of limitation.
We have thus far treated the stay as beginning on January'5, 1906, when the bond was filed. However, from the language of the order made by the trial court (not the order recited in the bond) we are inclined to believe that it was intended thereby to grant a stay to-begin at once, the bond to be filed within a reasonable time. Very likely the matter was thus treated and considered by the trial court amd by the parties. Assuming that the stay began upon conviction, we need not consider the effect of filing the bond after the statute of limitation had begun to run, and we conclude that the-stay did not operate as a bar to the prosecution of this, action to enforce the lien. While the rule might be considered provocative of hardship, such hardship is more theoretical than actual. Had this action been begun before the judgment was affirmed, no doubt the trial' court would have granted continuances from time to time until the appeal was determined, and we must presume that trial courts will under such circumstances act, not arbitrarily, but with discretion, so as to save-the rights of the state and yet not destroy the rights-, of the other party.
The judgment of the trial court is affirmed; | [
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Per Curiam:
No cause of action for the loss of his bargain accrued to the plaintiff, because the contract was not binding under the statute of frauds. (Leis v. Potter, 68 Kan. 117, 121.)
The other item of damage claimed is not recoverable -on the principle of estoppel, because the claim arises upon voluntary conduct of the plaintiff, not induced by the defendant, and entirely outside the purview of the contract.
The judgment is affirmed. | [
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Gernon, J.:
Ohio Casualty Insurance Company (Ohio) appeals from the district court’s grant of summary judgment in favor of Ryan Newton, Susan Gordon, and Christy Sheehan. The court found that Ohio was liable for injuries sustained by Newton, Gordon, and Sheehan in their underlying personal injury claim. They were injured when the vehicle they were in struck a 500-gallon water tank that had fallen from a flatbed truck driven and owned by Doyle Nicholas.
The injuries occurred when the car driven by Gordon and owned by her father struck the water tank. Gordon’s automobile was insured against liability under a policy issued by Metropolitan Property and Liability Insurance Company (Metropolitan) containing a bodily injury limit of liability of $300,000 per occurrence and underinsured motorist coverage with a limit of liability of $300,000 per person/per accident.
Nicholas’ truck was insured by Shelter Insurance Company (Shelter) and contained bodily injury limits of liability of $25',000 per person and $50,000 per accident. Nicholas was also insured against personal liability under a policy of homeowners insurance issued by Ohio containing a bodily injury limit of liability in the amount of $100,000 per occurrence.
Newton filed suit against Nicholas and Metropolitan, alleging the accident occurred as a result of Nicholas’ negligence in both vehicle- and nonvehicle-related acts and that Metropolitan was liable to the extent Nicholas was' underinsured. A series of settlements followed in which Shelter’s $50,000 policy limit and Metropolitan’s effective underinsured motorist policy limit of $250,000 were divided among Newton, Gordon, and Sheehan.
Newton then filed an amended petition, asserting a cause of action against Nicholas and claiming the collision was caused solely by Nicholas’ nonvehicle-related acts of negligence and carelessness in failing to tie down or secure the water tank. Ohio initially denied coverage and refused to defend Nicholas, but, later, Newton, Nicholas, and Ohio agreed that Ohio should intervene in the lawsuit in order to seek a declaratory judgment as to whether it was liable under the homeowners policy issued to Nicholas.
Ohio was allowed to intervene and filed a petition for declaratory relief, claiming that any injuries sustained by Newton, Gordon, and Sheehan as a result of Nicholas’ conduct were specifically excluded by the terms and provisions of its homeowner’s policy. The parties agreed that should the dispute be resolved in favor of coverage, Ohio’s $100,000 policy limit would be paid to and divided by the three claimants in the same manner as the previous settlement amounts had been divided. The parties also agreed that, whether or not the court found in favor of coverage, there would be no further claim against Nicholas personally.
Newton then filed a second amended petition, reiterating his claim against Nicholas and adding a claim against Gordon. Newton alleged that Gordon failed to keep her vehicle under proper control, faded to keep a proper lookout, and drove her vehicle at a speed greater than was reasonable under the existing conditions. Newton and Gordon later agreed to a partial dismissal with prejudice of the claim by Newton against Gordon.
With regard to the declaratory judgment action, the parties filed a joint stipulation of the facts relevant to the dispute. Ohio then filed a motion for summary judgment, as did Newton, Gordon, and Sheehan. The trial court ruled in favor of Newton, Gordon, and Sheehan, finding that Ohio had not sustained its burden of demonstrating that Nicholas’ conduct was excluded from coverage under the homeowners policy.
“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). In the present case, none of the material facts are in dispute, suggesting that the matter was ripe for summary judgment.
With regard to the water tank on Nicholas’ truck, the parties stipulated as follows.
“14. Nicholas hauled his water in a 500-gallon cylindrical, steel tank which was attached to the steel truck bed of his 1977 Ford F-350 one-ton truck. The principal use of the truck was to haul water in this manner and Nicholas estimates that the tank was attached to the truck 75% or more of the time. It was not uncommon for the tank to be attached to the truck for 30 or more days at a time. Especially during drier periods, Nicholas would haul water every day or multiple times a day for household and stock use.
“15. Nicholas attached the tank to the steel track bed of the track by using a heavy 14-foot logging chain which had a chain hook affixed to each end. One end of the chain was hooked to a side of the track bed, the chain was pulled through and wrapped one time around a handle on the top of the tank, and the other end of the chain was hooked to the other side of the track bed. The chain was cinched or tightened with the use of a boomer [or come-along], and the handle of the boomer was wrapped with any excess chain and baling wire. [Nicholas had been regularly using this means of attachment without incident for at least six or seven years preceding the accident.]
“16. The tank was approximately six feet long and four feet in diameter. The bed of the track was 10 feet long and 7 feet 5 inches wide. Even with the tank attached to the track, the bed areas around the tank were accessible and usable for other hauling purposes.
“17. The boomer involved in the accident has been preserved and is available for inspection by the court. It has not been altered or modified since the accident and is in working order or condition. Apart from the fact that the boomer was unconnected to the logging chain and lying on the roadway after the accident, there is no indication that die boomer failed, was defective, or that it was damaged in the incident.
“18. The boomer involved in the accident was examined by George W. For-man, P.E., Lawrence, Kansas, a consulting mechanical engineer, at the request of Metropolitan. . . . Mr. Forman did not find any defect in the boomer. His report states he doubts that the described means of attachment ‘should be considered to be a properly engineered and safe arrangement.’
“19. The logging chain used to attach the tank to the track bed has been preserved, has been inspected by all parties, and is available for inspection by the court. The chain has not been altered or modified since the accident and is in working order or condition. There is no indication that the chain or chain hooks failed or that the chain or chain hooks were damaged in the incident.
“20. The tank involved in the accident has been preserved, has been inspected by all parties, and is available for inspection by the court. It has not been altered or modified since the accident. It was damaged in the accident. . . .
"21. The track bed involved in the accident has been preserved, has been inspected by all parties, and is available for inspection by the court. It has not been altered or modified since the accident. There is no indication that the track bed failed or was damaged in the incident. . . .
“22. Although Nicholas is not positive, he believes he last attached the tank to the track several days before the accident. Nicholas distinctly recalls having loaded and hauled a tank of water to his farm on January 27, 1991, the day preceding the accident. On the afternoon of the day of the accident, January 28, 1991, Nicholas loaded and hauled a tank of water to his farm and unloaded the water into his well. That evening he returned to Desoto to load and haul a second tank of water. The accident occurred when he was returning home with the second load.
“23. Upon arriving at the water tap in Desoto, he fully loaded fhe tank with water and began the drive back to his farm. The accident occurred at about 8:00 p.m. Although it had snowed earlier and there was snow along fhe side of the roadway, the black top roadway was dry and weather was not a factor in fhe accident.
“25. Nicholas does not know how or why fhe boomer became unfastened or the tank became unattached from the truck. At one point he questioned whether a bump in the roadway might have had something to do with what happened, however, he no longer believes this to be fhe case. The reporting police officer investigated a ‘buckle’ in the roadway, but concluded that the area was not a traffic hazard and did not appear to be a contributing factor to the tank falling from Nicholas’ truck. Also, ihe investigating police officer looked and did not find any tire tracks in the snow or other evidence that Nicholas’ truck left fhe roadway at any point.
“26. In order to fill the tank, Nicholas had to climb onto the truck bed. He customarily did this by first stepping on fhe tire under the driver’s side of the bed and using the chain across the tank to help pull himself up. Nicholas did not regularly inspect the attachment of the tank to the truck bed except to the extent he may have noticed something in getting on or off the truck bed. To his knowledge, he did not inspect the attachment of fhe tank to the truck bed after it was last attached several days earlier or on the day of the accident.”
Ohio contends that it has no coverage based upon the following exclusion contained in its homeowners policy issued to Nicholas:
“SECTION II — EXCLUSIONS
“1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
e. arising out of:
(1) the ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an insured.”
“It is the general rule that exceptions, limitations and exclusions to insuring agreements require a narrow construction on fhe theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.” Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 149, 519 P.2d 737 (1974).
Newton, Gordon, and Sheehan counter by arguing that their claims were based upon allegations of both vehicle-related and nonvehicle-related negligent acts and that the nonvehicle-related acts triggered coverage under the homeowners policy. If their view is correct, then Nicholas was entitled to concurrent coverage under both his automobile policy and his homeowners policy. Newton, Gordon, and Sheehan contend that the injury-producing event was directly and proximately caused by the concurrence of both vehicle-related and nonvehicle-related acts of negligence and, therefore, Ohio’s policy exclusion does not preclude coverage for nonvehicle-related acts which concur with vehicle-related acts to cause damage.
The trial court agreed with Newton, Gordon, and Sheehan and found that Nicholas’ two acts of negligence — failure to inspect the apparatus securing the tank and failure to properly construct a surface for the tank on the back of the truck — were concurrent, nonvehicle-related acts outside the scope of the automobile exclusion.
While no Kansas cases are directly on point, other jurisdictions have considered this issue with varying results.
The California Supreme Court found coverage available under both a homeowners policy and an automobile policy in the case of State Farm Mut. Auto. Ins. Co. v. Partridge, 10 Cal. 3d 94, 109 Cal. Rptr. 811, 514 P.2d 123 (1973). In Partridge, Vanida Neilson was paralyzed when, as a passenger in a vehicle driven by Partridge, a .357 Magnum discharged and struck her spinal cord. The gun had previously been modified by Partridge so it would have a “hair trigger action.” At the time Neilson was injured, Partridge was hunting jackrabbits by shooting out the window of the vehicle while it was moving and, in order to keep a rabbit within the car’s headlights, he was driving off the paved road onto adjacent rough terrain.
The California Supreme Court was left with the question: What was the proximate cause of the injury?
The California Supreme Court stated: “[W]e have no doubt that in the instant case the role played by the use of the car— constituting a substantial, and indeed, a proximate cause of the accident — was certainly sufficient to bring the present accident within the coverage of the automobile policy. Neither party questions this conclusion.” 10 Cal. 3d at 100-01.
The controversy there, as here, focused upon the applicability of the homeowners policy and whether the exclusionary clause in the homeowners policy which denied coverage for injuries “ "arising out of the . . . use ... of a motor vehicle’ ” excluded coverage under these facts. 10 Cal. 3d at 101.
The California court further reasoned that the use of the automobile was not the sole cause of the injuries, but was only one of two joint causes of the accident. Partridge, 10 Cal. 3d at 102.
Several other jurisdictions have followed California’s lead and presently allow coverage under a homeowners or other general liability policy where concurrent nonvehicle-related and vehicle-related acts or causes combine to produce injury or damage. See Scottsdale Ins. Co. v. Van Nguyen, 158 Ariz. App. 476, 477, 479, 763 P.2d 540 (1988) (automobile exclusion clause in housemovers policy did not eliminate insurer’s liability where there was evidence of concurrent negligence in both towing of house and preparation of house for movement); Kalell v. Mutual Fire and Auto. Ins. Co., 471 N.W.2d 865, 868 (Iowa 1991) (homeowners policy exclusion for occurrences arising out of the use of motor vehicle did not preclude coverage for injuries received when piece of limb struck victim while insured was removing dead limb from tree by attaching rope and pulling it with truck, because removal of limb with rope could be considered negligent act); LeJeune v. Allstate Ins. Co., 365 So. 2d 471, 479 (La. 1978) (automobile exclusion clause in professional liability policy did not preclude coverage where deputy sheriff failed to properly secure intersection of highways by using his car, because negligence was not related to vehicle); Waseca Mut. Ins. Co. v. Noska, 331 N.W.2d 917, 921, 923 (Minn. 1983) (nonvehicle-related act of placing live embers in open barrels triggered coverage under a homeowners policy when it concurred with the vehicle-related act of driving, causing a nine-day forest fire); Salem Group v. Oliver, 128 N.J. 1, 3, 607 A.2d 138 (1992) (homeowner’s insurer had duty to defend insured who supplied alcoholic beverage to minor and minor was later injured driving motor vehicle, despite automobile exclusion in homeowners policy); Houser v. Gilbert, 389 N.W.2d 626, 628 (N.D. 1986) (additional nonvehicle-related risks of failure to warn and failure to remove mud from road were also proximate causes of auto accident; exclusionary clause in general farm policy did not preclude coverage); Allstate Ins. Co. v. Watts, 811 S.W.2d 883, 888 (Tenn. 1991) (exclusion in homeowners policy for any loss arising out of maintenance of a motor vehicle did not preclude liability where insured negligently advised victim that there were no flammable liquids in garage; other nonexcluded causes played substantial part in injuries); Warrilow v. Norrell, 791 S.W.2d 515, 526 (Tex. Civ. App. 1989) (automobile exclusion did not apply even though insured dropped pistol in car while attempting to change a tire; liability could also be based on other grounds of negligence unrelated to the maintenance of the vehicle); Lawver v. Boling, 71 Wis. 2d 408, 422, 238 N.W.2d 514 (1976) (case remanded where evidence demonstrated possibility that nonvehicle-related causes contributed to injury; insurer not excused from its duty to defend until court determined injury not a result from a risk for which it provided coverage).
A Minnesota case contained a factual situation close to the present situation. In North Star Mut. Ins. Co. v. Johnson, 352 N.W.2d 791 (Minn. App. 1984), Vernon Janssen had an automobile policy with Milwaukee Mutual Insurance and a farm liability policy with North Star Mutual Insurance. Janssen was driving a pickup with a farm sprayer bolted to the bed. One arm of the sprayer unexpectedly extended and smashed into the windshield of a car traveling in the opposite direction, with resulting injuries. The farm policy contained an exclusionary provision similar to the one in the case before us.
Johnson’s petition alleged two distinct negligence claims: (1) Janssen failed to operate his pickup truck at a safe and reasonable speed, and (2) Janssen failed to properly secure the arms of the sprayer to the sprayer unit. The court stated:
“Had the truck rather than the sprayer arm collided with the Johnson car, the exclusion would have precluded coverage because the accident would have arisen solely out of operation of the vehicle. However, the actual accident allegedly resulted from two independent causes — Janssen’s negligence in operating the vehicle and in securing the sprayer arms to the unit.” 352 N.W.2d at 794.
The opposite result was reached in the case of Columbia Mut. Casualty Ins. Co. v. Coger, 35 Ark. App. 85, 811 S.W.2d 345 (1991). In Coger, a lumber truck was delivering lumber on a state highway when part of the load fell off the truck, landed on the highway, and collided with a van traveling in the opposite direction, injuring its occupants. The court held that “whether or not the lumber briefly came to rest before being struck by the van, and whether the negligent act was the operation of the vehicle, the securing of the load, or the maintenance of the straps securing the load, the injury and damage clearly arose out of the ownership, maintenance, or use of the truck or attached equipment and was therefore not covered by the policy.” 35 Ark. App. at 88.
Courts have struggled with the concurrent liability question. For example, in Allstate Ins. Co. v. Jones, 139 Cal. App. 3d 271, 188 Cal. Rptr. 557 (1983), the insured owned a pickup truck which was equipped with an open-ended, overhead steel rack used to store and transport steel reinforcing rods. The truck, loaded with 14 pieces of reinforcing rod, was involved in a collision, and the driver of the other vehicle was killed. The court found that both acts of negligence which occurred to cause the death of the other driver were auto-related, and, therefore, the exclusion in the insured’s comprehensive general liability policy applied.
In North Star Mut. Ins. Co. v. Holty, 402 N.W.2d 452 (Iowa 1987), the court determined that an auger permanently attached to a truck was included in the policy’s definition of a motor vehicle. The key in Holty seemed to be the permanent attachment of the auger to the truck and that the accident arose “out of negligent maintenance of the external condition of the truck.” 402 N.W.2d at 455.
The question squarely before us is whether the events giving rise to Nicholas’ liability arose out of the “ownership, maintenance, use, loading or unloading of motor vehicles . . . owned or operated by or rented or loaned” to Nicholas. In order to find liability coverage exists under the homeowners policy issued by Ohio, one or more concurrent causes of the resulting harm must be found to exist independently of any use of the truck.
The language of the exclusion must be given its plain, ordinary meaning. See Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, 333, 681 P.2d 15 (1984). “Policies must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary and popular sense.” Bramlett v. State Farm Mutual Ins. Co., 205 Kan. 128, 130, 468 P.2d 157 (1970). Similarly, courts should not strain to create an ambiguity where, in common sense, there is none. Bell v. Patrons Mut. Ins. Ass’n, 15 Kan. App. 2d 791, 794, 816 P.2d 407, rev. denied 249 Kan. 775 (1991). “[T]he test to determine whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean.” Farm Bur. Mut. Ins. Co. v. Winters, 248 Kan. 295, 300, 806 P.2d 993 (1991). An insurance contract may only be found ambiguous when, after the application of the relevant rules of interpretation, the words intended to express the meaning and intent of the parties may be construed to reach more than one possible meaning. Dodson Aviation, Inc. v. Rollins, Burdick, Hunter of Kansas, Inc., 15 Kan. App. 2d 314, 319, 807 P.2d 1319, rev. denied 249 Kan. 775 (1991).
The specific negligent acts alleged by the claimants to be non-vehicle-related include Nicholas’ failure to inspect and properly secure the water tank to the truck. The parties stipulated that the principal use of the truck was to haul water. The tank was attached to the truck 75% of the time, and, while it was not uncommon for the tank to be attached 30 days or more at a time, the stipulated facts reflect that it was not permanently affixed to the truck as was the auger in Holty.
Ohio contends that Nicholas’ efforts or lack thereof to inspect and properly secure the tank are acts regarding the maintenance of the truck as a vehicle for hauling water. It also argues the baling wire, boomer, and logging chain had no purpose apart from their use on the truck, and that, in order to “use” the truck for its intended purpose, Nicholas had to secure the tank to the flatbed with the various attachment devices. Therefore, the inspection and attachment of the tank were inherently tied to the use of the truck.
We are not persuaded, based upon the facts presented here, that the failure to inspect and properly secure the tank was a concurrent cause of the injury existing independently from Nicholas’ use of the truck. Coverage is properly excluded only when the use of a motor vehicle is causally connected with the liability-producing event. “Causally connected” should not be confused with proximate causation and means only that there be a connection between the accident and the use of the vehicle. Before the doctrine of concurrent negligence can be applied, the non-vehicle-related negligence must exist separately and independently from any vehicle-related negligence.
There is no question that the activity in the present case involved the direct use of a motor vehicle. The negligence which occurred in this case by hauling a water tank that had not been properly inspected or secured to the truck bed does not exist independent of the ownership, maintenance, use, and loading and unloading of the vehicle. The injury occurred in this case because the water tank was being negligently hauled by a motor vehicle, and Nicholas’ negligent actions in failing to inspect the apparatus holding the tank to the truck bed and his failure to properly secure it in the first place were directly connected to the transportation of the tank and do not exist independently from the use of the truck. In other words, following the reasoning in Allstate Ins. Co. v. Jones, the failure to inspect and properly secure the tank implicitly and logically refers to the failure to do so on the truck.
This case is factually distinguishable from State Farm Mut. Ins. Co. v. Partridge. In Partridge, the negligent act of filing the trigger to lighten its pull and give the gun a hair trigger effect was totally unrelated to the use of the vehicle. The increased risk of anyone coming in contact with or near such a weapon is obvious. In the present case, every act which occurred leading to the claimants’ injuries was directly connected with the hauling of the water tank by use of a motor vehicle, an event excluded by the policy provision at issue.
The judgment of the district court is reversed, and this matter is remanded with directions to enter summary judgment in favor of Ohio.
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Brazil, J.:
Terry George appeals the district court’s denial of his request for conversion under the sentencing guidelines.
George struck his ex-wife in the face three or four times, hit her on the head with a handgun, and stabbed her in the leg with a “Rambo-style serrated knife.” Pursuant to a plea agreement, George pled guilty to aggravated battery as defined in K.S.A. 21-3414(b), a class C felony. The State dismissed a charge of aggravated assault. George was sentenced to a term of 5 to 15 years, which the court later modified to 4 to 15 years. He committed the crime and was sentenced prior to July 1, 1993.
The Department of Corrections (DOC) submitted a sentencing guidelines report in October 1993 which indicated that the aggravated battery conviction constituted a severity level 7 offense. The report stated that George had one prior misdemeanor battery conviction, resulting in criminal history categoiy I on the sentencing grid. The report stated that the guidelines sentence was 18 months. The report concluded that although a 7-1 classification would otherwise merit sentence conversion, George was not eligible for retroactive application of the guidelines because he used a firearm in the commission of the crime.
George filed an objection to the report and requested a hearing. At the hearing, George argued that he did not use a firearm in the commission of aggravated battery. The court agreed that a firearm was not used in the commission of the offense but pointed out that the report erroneously categorized the aggravated battery as severity level 7. The court stated that the severity level should be 4, making George ineligible for sentence conversion. The court denied George’s request for sentence conversion.
George argues that the district court erred in classifying his offense as a severity level 4 aggravated battery under the new statute. Statutory interpretation is a question of law and is subject to this court’s unlimited review. State v. Williams, 19 Kan. App. 2d 903, 904, 878 P.2d 854 (1994).
George was charged with aggravated battery pursuant to K.S.A. 21-3414, which states: “Aggravated battery is the unlawful touching or application of force to the person of another with intent to injure that person or another and which . . . (b) [clauses any disfigurement or dismemberment to or of his person.” The aggravated battery statute was amended in 1993. Under 21-3414(a), aggravated battery is defined in part as:
“(1)(A) Intentionally causing great bodily harm to another person or disfigurement of another person; or
(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 1993 Supp. 21-3414(a).
Aggravated battery under (a)(1)(A) is a severity level 4 person felony; the other two classifications are severity level 7 person felonies. K.S.A. 1993 Supp. 21-3414(b). The court translated the offense into subsection (a)(1)(A) because George pled guilty to K.S.A. 21-3414(b), intentionally applying force causing disfigurement of another person.
George pled guilty to a crime consisting of two elements: intent to injure and causing disfigurement or dismemberment. The charging instrument stated that George “did . . . willfully apply force to the person of another . . . with the intent to injure that person, and which did cause . . . disfigurement or dismemberment to or of said person in violation of K.S.A. 21[-]3414(b).” K.S.A. 1993 Supp. 21-3414(a)(l)(A), however, contains different elements: intentionally causing great bodily harm or intentionally causing disfigurement. The charging document does not mention either element.
In State v. Houdyshell, 20 Kan. App. 2d 90, 95, 884 P.2d 437 (1994), the Houdyshells were charged and convicted of unlawfully applying force to the victim “ ‘with the intent to injure that person and which inflicted great bodily harm upon him or was done in a manner whereby great bodily harm, disfigurement, dismemberment, or death could be inflicted/ ” The trial judge stated that he remembered the cases and concluded that the evidence showed the Houdyshells intentionally caused great bodily harm to the victim. The trial court then translated the offense into a severity level 4 under the new aggravated battery statute.
This court reversed, stating that severity level 4 aggravated battery under the new statute included an element not charged: intent to commit great bodily harm. This court concluded that since the charging document is a jurisdictional instrument upon which an accused stands trial, the court does not have jurisdiction to sentence a person for a crime consisting of elements not alleged in the charging document. 20 Kan. App. 2d at 96.
Houdyshell might be distinguished by the fact that the court calculated the guidelines sentence for purposes of original sentencing pursuant to K.S.A. 1993 Supp. 21-4724(f), since the crime was committed prior to July 1, 1993, and the Houdyshells were sentenced after July 1, 1993. There was no DOC report and no conversion hearing. Further, the Houdyshells did not plead guilty, but had a juiy trial on the charges.
Houdyshell is otherwise on point. George was not charged with intent to disfigure or intent to inflict great bodily harm. He was charged with intent to injure his victim, and the injury caused disfigurement. His eligibility for sentence conversion cannot be calculated based on a crime for which he was not charged or convicted. Further, George’s offense does not fit the definition in 21-3414(a)(l)(C) because it lacks the element of making physical contact in a rude, insulting, or angiy manner. George’s offense can only translate into the definition in 21-3414(a)(l)(B), which requires an intent to cause bodily harm inflicted in a manner that could cause disfigurement or death. This is a severity level 7 offense. George is thus eligible for sentence conversion. See K.S.A. 1993 Supp. 21-4724(c)(l).
George alternatively argues that his offense translates into one of the definitions of reckless aggravated battery under K.S.A. 1993 Supp. 21-3414(a)(2). Reckless aggravated battery is either a se verity level 5 or 8 offense. K.S.A. 1993 Supp. 21-3414(b). This argument is without merit. The charging document plainly states that George “willfully” applied force to his victim “with the intent to injure that person.” Intentional acts are willful and not accidental, while reckless acts are done merely with a “realization of the imminence of danger” and an unjustifiable disregard for it. K.S.A. 1993 Supp. 21-3201(b) and (c). George’s crime clearly cannot be construed as any form of reckless aggravated battery.
The State argues that if this court concludes the district court erred in determining the severity level of George’s offense, denial of the conversion could still be upheld on the basis that George used a firearm in the commission of the aggravated battery. The district court held that George did not use a firearm, but that since he committed a severity level 4 offense, his sentence would not be converted. In essence, the State argues that the district court correctly denied conversion, but erred in holding that George did not use a firearm.
K.S.A. 1993 Supp. 21-4704(h) states that when a firearm is used to commit aggravated assault or aggravated battery, the offender’s sentence shall be presumed imprisonment. The State and the district court coupled this provision with K.S.A. 1993 Supp. 21-4724(b)(1), which states in part that
“persons who committed crimes which would be classified in a presumptive nonimprisonment grid block on either sentencing grid, [or] in grid blocks 5-H, 5-1 or 6-G of the nondrug grid . . . and were sentenced prior to July 1, 1993, shall have their sentences modified according to the provisions specified in the Kansas sentencing guidelines act.”
The State takes these provisions to mean that if a person uses a firearm in the commission of aggravated battery, he or she is not eligible for retroactive application of the guidelines. This is not supported by the language of the statute. The provision for changing the presumptive sentence from nonimprisonment to imprisonment for use of a firearm in the commission of certain crimes does not alter the legislature’s direction of conversion set out in K.S.A. 1993 Supp. 21-4724(b)(l). State v. Sidders, 20 Kan. App. 2d 405, Syl. ¶ 2, 888 P.2d 409 (1995).
It is clear that the firearm issue does not preclude George’s eligibility for retroactive application of the guidelines. We must next consider whether the trial court erred in determining that a firearm was not used in the commission of an aggravated battery.
The threshold question is what information is available to the trial court to determine whether a firearm was used in the commission of a crime under K.S.A. 1993 Supp. 21-4704(h)? This is a matter of first impression. In the context of determining retroactive applicability of the guidelines, this court has been reluctant to go beyond the well-pleaded facts in the charging instrument as set out in Houdyshell, 20 Kan. App. 2d at 95, and the findings of fact in the journal entry.
Having determined that George is entitled to retroactive application of the guidelines, we see no valid reason to prevent the trial court from considering the stipulated facts underlying the guilty plea. We hold that when a defendant pleads guilty or nolo contendere, the stipulated facts underlying the plea may be used by the trial court, in addition to the well-pleaded facts in the charging instrument and findings of fact in the journal entry, to determine whether the defendant used a firearm in the commission of a crime as set out in K.S.A. 1993 Supp. 21-4704(h).
Neither the charging document (after the dismissal of the aggravated assault charge) nor the journal entry of sentencing mentions the use of a firearm in the commission of the crime. The State offered a factual basis for the guilty plea at the hearing. The State noted that George struck his victim on the head with a handgun. George stipulated to the facts. The gun is also mentioned in the presentence investigation report.
The DOC report stated that although George was otherwise eligible for sentence conversion, his sentence could not be converted because he used a firearm in the commission of the aggravated battery. George argued that he did not use a firearm in the commission of that crime. The court noted that the aggravated assault charge, which was dismissed, involved a firearm in that George pointed a gun at his victim’s head. The district court agreed with George, stating that “[t]he aggravated battery was committed with a knife which caused a disfigurement.” The court concluded, however, that George was still not eligible for sentence conversion because he committed a severity level 4 battery.
Because the case was submitted to the trial court on stipulated facts, we have the same opportunity as the trial court to consider the evidence and determine de novo what the facts establish. Shade v. Wheatcraft Industries, Inc., 248 Kan. 531, 536, 809 P.2d 538 (1991). George stipulated to the fact that he struck the victim on the head with a handgun. Contrary to the finding of the trial court, we find that the stipulated facts support a finding that a firearm was present in the commission of the aggravated battery.
Finally, we must determine whether a firearm was “used” during the commission of the aggravated battery as contemplated in K.S.A. 1993 Supp. 21-4704(h). Although this question has, to our knowledge, not yet been considered in the context of 21-4704(h), we can benefit from looking at cases involving K.S.A. 1993 Supp. 21-4618, as well as decisions from other states.
K.S.A. 1993 Supp. 21-4618 states in pertinent part:
“(a) Except as provided in subsection (c), probation, assignment to a community correctional services program or suspension of sentence shall not be granted to any defendant who is convicted of the commission of . . . any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant uses any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime.” (Emphasis added.)
The intent of the legislature in its enactment of 21-4618 has been stated a number of times:
“The legislature in 1976 enacted K.S.A. 21-4618 because of public concern over the increased number of crimes involving the use of firearms. The imposition of a mandatory minimum sentence where a firearm is used in the commission of specified crimes was a legitimate legislative effort to deter the use of a firearm.” State v. Coley, 236 Kan. 672, 674, 694 P.2d 479 (1985).
“When 21-4618 was being considered in legislative committee the committee reports indicate the committee members felt that this act had at least two purposes: (1) it would deter the criminal from using firearms to commit crimes, and (2) by reducing the number of crimes committed with firearms, it would save victims of such crimes from injuries and death from firearms.” State v. Pelzer, 230 Kan. 780, 781-82, 640 P.2d 1261 (1982).
The court has considered what constitutes “use” of a firearm as well. In State v. DeCourcy, 224 Kan. 278, 281, 580 P.2d 86 (1978), the court stated: “In our judgment, for the statute to be applicable, the state must establish, and the sentencing court must find, that the firearm was an instrumentality of the crime.” In a robbery, the court held that the State must show that the firearm was an instrument of force used to overcome the will of the victim. The court in DeCourcy also concluded that the court may not apply the statute when sentencing an unarmed accomplice. 224 Kan. at 281.
In State v. Deutscher, 225 Kan. 265, 273, 589 P.2d 620 (1979), the court held that an unloaded weapon used in an assault on a law enforcement officer is a firearm for purposes of the statute. In State v. Harrison, 228 Kan. 558, 561, 618 P.2d 827 (1980), the court held that Harrison used a firearm when she raised her shirttail during a robbery exhibiting what appeared to be the handle of a gun and threatened to shoot the clerk. The court rejected Harrison's argument that since she did not fully exhibit the gun during the robbery, she did not use a firearm under the statute. 228 Kan. at 561. In State v. Robinson, 10 Kan. App. 2d 135, 136, 694 P.2d 482 (1985), this court held that the “use” of the firearm need not be intentional to invoke the statute.
In State v. Thompson, 3 Kan. App. 2d 426, 596 P.2d 174, rev. denied 226 Kan. 793 (1979), the defendant entered a store with another man, both displaying weapons. Thompson tried to fire his gun at the clerk. The gun misfired, so his companion fired and hit the clerk. Thompson was charged, among other things, with aiding and abetting aggravated battery. The court noted the State's argument that Thompson’s actions with the gun operated as a signal to his companion to shoot the clerk. This court held that since Thompson displayed, pointed, and attempted to fire his gun, he “used” a firearm for purposes of the statute. 3 Kan. App. 2d at 434-35.
The appellate courts in this state have not directly passed on the question of whether a gun used as a club to commit aggravated battery constitutes use of a firearm under the statute. The question was noted but not addressed in State v. Kleber, 2 Kan. App. 2d 115, 119, 575 P.2d 900, rev. denied 225 Kan. 846 (1978), because the parties failed to brief it.
This court again by-passed the issue in State v. Adams, 12 Kan. App. 2d 191, 737 P.2d 876 (1987). Adams pulled a gun and threatened to shoot or pistol whip the victim. Adams beat the victim on the arms and head with the gun and cocked it several times, threatening to shoot the victim. At trial, Adams admitted to striking the victim with a gun, but argued that the gun was merely a Daisy Model 57 which fired plastic pellets. Adams was convicted of aggravated assault and aggravated battery and sentenced under the statute.
On appeal, Adams argued that the Daisy was not a firearm under the statute. This court noted that there was no evidence of how the plastic pellet was discharged from the Daisy and concluded that upon this court’s physical inspection of the gun, there was no evidence that the Daisy met the test set out in State v. Davis, 227 Kan. 174, 605 P.2d 572 (1980). This court held that the sentencing court’s determination that a firearm was used in the commission of the offenses was not supported by substantial competent evidence. 12 Kan. App. 2d at 196. This court did not address the question of whether a gun used as a club constitutes “use” of a firearm.
One Kansas case addresses the use of a firearm in the context of aggravated battery where the gun was not used to fire a bullet into the- victim. In State v. Smith, 232 Kan. 284, 654 P.2d 929 (1982), Smith, armed with a rifle, forced his way into a residence through a second floor balcony. A man in the room fled to retrieve his own gun. Smith followed and, upon meeting the man, struggled with him for possession of the man’s shotgun. The two ended up on a balcony overlooking the family room. Still fighting for possession of the shotgun, Smith “ ‘gave a might[y] heave,’ ” causing the man to fall over the balcony railing to the brick floor below, causing various injuries. 232 Kan. at 287.
Smith was convicted of aggravated battery and other charges. On appeal, Smith argued that the court erred in sentencing him under the firearm statute because he did not “use” a firearm as contemplated by the statute. The court did not agree. The court stated: “Defendant’s ‘might[y] heave’ on the firearm is what pulled Mr. Coulter over the railing. . . . Clearly under the cir cumstances herein the rifle was the instrumentality of the aggravated battery and was 'used’ within the meaning of the mandatory sentencing statute.” 232 Kan. at 289.
Smith is a clear statement by the Supreme Court that use of a gun in an aggravated battery is not limited to firing it for purposes of the statute. If using a gun to push someone over a railing is use of a firearm, it follows that hitting someone with a gun— a more direct utilization of the gun — is also a contemplated use.
Another state has specifically addressed the issue of a gun used as a club. In State v. Trujillo, 91 N.M. 641, 643, 578 P.2d 342 (Ct. App. 1978), the New Mexico Court of Appeals considered a state statute which provided for enhancement of sentences when “ 'a firearm was used in the commission of ’ ” certain felonies. There was evidence at trial that Trujillo clubbed one of his victims with a gun. Trujillo requested but did not receive an instruction stating that “use” of a firearm did not include its use as a club.
The court considered two California cases interpreting “use” of a firearm. In People v. Chambers, 7 Cal. 3d 666, 102 Cal. Rptr. 776, 498 P.2d 1024 (1972), the court considered the meaning of “use” of a firearm under a sentencing enhancement statute in the context of robbery. The court noted the dictionary definition of use, stating: “ 'Use’ means, among other things, 'to carry out a purpose or action by means of,’ to 'make instrumental to an end or process,’ and to 'apply to advantage.’ ” The court concluded that “[t]he obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that 'uses’ be broadly construed.” 7 Cal. 3d at 673.
In People v. Reaves, 42 Cal. App. 3d 852, 117 Cal. Rptr. 163 (1974), the court again considered the “use” of a firearm in the context of a robbery. In that case, the court noted the pattern jury instruction on the use of a firearm. The instruction stated: “ 'The term “used a firearm” includes not only an intentional discharge thereof but also the use thereof as an object with which to hit or strike or display in a menacing manner.’ ” 42 Cal. App. 3d at 856. The court explained the intent of the legislature as follows:
“The desire of the Legislature to prevent death and injury as a result of the involvement of firearms in the commission of crime is manifest from the various provisions for increased punishment for crimes where firearms are in some way involved. The underlying intent of the Legislature is to deter persons from creating a potential for death or injury resulttngfrom the very presence of a firearm at the scene of a crime. . . .
“ . . . The display of the gun in a menacing manner as a means of accomplishing a robbery or the employment of the gun to strike or ‘pistol whip’ the victim is certainly ‘use’ of the gun in the commonly accepted definition of that term. Because either such ‘use,’ i.e., the menacing display of or striking the victim with the gun carries the ever-dangerous potential of a discharge of the firearm, both such ‘uses’ are properly included.” (Emphasis added.) 42 Cal. App. 3d at 856-57.
The New Mexico court concluded that “[t]he obvious intent of the New Mexico Legislature was to deter the use of firearms in committing felonies” and thus the concept of “use” should be broadly construed. The court held that a gun used as a club constitutes use of a firearm under the sentencing statute and Trujillo’s instruction was properly denied. Trujillo, 91 N.M. at 644.
Within the context of K.S.A. 1993 Supp. 21-4704(h), we believe that the concept of “use” should be broadly construed and conclude that George used a firearm in the commission of the aggravated battery within the meaning of the statute. This is consistent with the legislative intent in Kansas to address public concern over the increased number of crimes involving firearms and with our Supreme Court’s conclusion that enhancement of a sentence where a firearm is used is a legitimate effort to deter the use of a firearm. State v. Coley, 236 Kan. at 674.
The presumption of imprisonment for use of a firearm in the commission of a crime must apply to George’s guidelines sentence. K.S.A. 1993 Supp. 21-4704(h). We are remanding the case to the trial court for a hearing on whether the presumption can be overcome under the language of subsection (h) relating to community safety interests. We note that this language is similar to that used in border box sentences under 21-4704(f)(3).
The sentencing guidelines report incorrectly states that a 7-1 classification on the sentencing grid receives a sentence of 18 months. The correct medium range sentence is 12 months. K.S.A. 1993 Supp. 21-4704. On remand, the trial court is directed to correct the sentence.
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Sanders, J.:
Melva Chapman appeals the Workers Compensation Board’s (Board) finding that her injuries did not arise out of and in the course of her employment with Beech Aircraft Corporation (Beech).
The facts are not disputed. Chapman was injured while going to work as she crossed, on foot, a busy public street (Central Street) in Wichita, Kansas. The street runs between the Beech’s company-owned parking lot and the aircraft plant where Chapman worked. Beech owns all of the property on the south side of Central where the parking lot is located for a distance of about one mile. The majority of the property on the north side is also owned by Beech, with the exception of a few residences. All Beech employees who park in the lot are required to cross Central Street in order to get to work. There are three crosswalks available for use by the employees who cross the street in the general area in question. Beech issues parking stickers to its employees which allow them to park in this particular lot.
On the day of Chapman’s injury, January 8, 1991, she was to report for work at 7:00 a.m. She parked in the lot at approximately 6:40 a.m. and was injured when she was struck by a vehicle while she was attempting to cross Central Street in the middle of the block. Chapman was not using any of the designated crosswalks at the time of the occurrence. She had not yet clocked in for work at the time of the accident. In summaiy, Chapman was between the premises of her employer on a public street at the time of the injury and had not yet assumed her duties of employment.
The Administrative Law Judge (ALJ) found that her injuries arose out of and in the course of her employment and, accordingly, entered an award. The Board reversed the ALJ’s findings; hence this appeal.
The sole issue on appeal is whether the Board erred in finding that Chapman’s injuries did not arise out of and in the course of her employment with Beech.
Chapman was injured in January 1991. K.S.A. 1990 Supp. 44-501(a) provided:
“If in any employment to which the workers compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, the employer shall be hable to pay compensation to the employee in accordance with the provisions of the workers compensation act.”
K.S.A. 1990 Supp. 44-508(f), commonly known as the “going and coming rule,” provided an exception where an employee is going to work but is not yet on the employer’s premises:
"The words ‘arising out of and in the course of employment’ as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence. An employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when the worker is on the premises of the employer or on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by the public except in dealings with the employer.”
Thus, there are two exceptions to the general rule that an employee is not eligible for workers compensation when he or she is injured either on the way to or from his or her employment: the “premises” exception and the “special hazard” exception.
In workers compensation cases, an appellate court may substitute its judgment for that of the Board on questions of law. Reeves v. Equipment Service Industries, Inc., 245 Kan. 165, 173, 777 P.2d 765 (1989); see K.S.A. 1990 Supp. 44-556(a) .
“[T]he question of whether the ‘going and coming’ rule applies must be addressed on a case-by-case basis.” Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, 438, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984).
In entering an award for Chapman, the ALJ addressed both exceptions to the going and coming rule. He first found that the special hazard exception did not apply because although Central Street did have a special risk or hazard, it was used by the public other than in dealing with Beech. He concluded, however, that Chapman’s injuries were compensable because Kansas would follow the majority rule as set forth in 1 Larson’s Workmen’s Compensation Law § 15.14(a) (1994): that employees injured on a public road while going between two parts of the employer’s premises are allowed compensation.
In reversing the ALJ, the Board briefly addressed the special hazard exception. It stated that Central Street is not a route in volving a special risk or hazard and that it is not one that the public does not use.
As for the premises exception, the Board stated:
“Special Administrative Law Judge Morrissey, in awarding benefits to the claimant found that Kansas would follow the more liberal rules set out in Larson’s Workers [sic] Compensation Law regarding employees on public roads going between two parts of an employer’s premises. The determining factor here deals with the term ‘premise[s].’ The Kansas Court of Appeals in Thompson v. Law Offices of Alan Joseph, 19 Kan. App. 2d 367 (1994), rejected the liberal attitude of Larson’s regarding the term premises stating that Kansas narrowly construes the term premises to be a place controlled by the employer or a place where an employee may reasonably be during the time he or she is doing what a person so employed may reasonably do during or while the employment is in progress.”
The Board concluded that Chapman was not on Beech’s premises when she was injured as that term is defined in Thompson v. Law Offices of Alan Joseph, 19 Kan. App. 2d 367, 869 P.2d 761, aff’d 256 Kan. 36, 883 P.2d 768 (1994), and, therefore, her injuries were not compensable.
I. The Premises Exception.
Both the ALJ and the Board based their findings on whether Chapman was on Beech’s premises when she was injured. In Kansas, an employer-owned parking lot, or one under the exclusive control and supervision of the employer, is considered the employer’s premises for workers compensation purposes. See Teague v. Boeing Airplane Co., 181 Kan. 434, 312 P.2d 220 (1957). Beech owns the parking lot where Chapman parked her car; therefore, Chapman was on Beech’s premises while she was in Beech’s parking lot. She had, however, moved out of the parking lot and into the public street when she was injured.
The Board relied on Thompson, 19 Kan. App. 2d 367, in finding that Chapman was not on Beech’s premises. There, the claimant parked in the public parking garage where her employer paid the parking fee, walked via a skywalk into the building where her employer’s offices were located, rode in an elevator to the floor where her employer and another firm’s offices were located, and fell as she stepped out of the elevator into the common area be tween the two sets of offices. Thompson argued that both the parking garage and the common area where she fell were her employer’s premises. The Court of Appeals set forth the definition of an employer’s premises as follows:
“For workers compensation purposes, Kansas narrowly construes the term ‘premises’ to be a place controlled by the employer or a place where an employee may reasonably be during the time he or she is doing what a person so employed may reasonably do during or while the employment is in progress.” 19 Kan. App. 2d 367, Syl. ¶ 2.
The Kansas Supreme Court, in affirming Thompson, noted in regard to the premises question:
“This court has repeatedly refused to adopt a ‘proximity’ or ‘zone of employment’ rule. In [Murray v. Ludowici-Celadon Co., 181 Kan. 556, 313 P.2d 728 (1957)], tliis court rejected the employee’s claim that he was ‘substantially’ or ‘sufficiently’ on his employer’s premises at the time of the injury, and we denied compensation for an injury which occurred in an alley running through the employer’s parking lot. In [Madison v. Key Work Clothes, 182 Kan. 186, 318 P.2d 991 (1957)], the employee was injured on the sidewalk in front of the employer’s business, and this court again refused compensation. In Walker v. Tobin Construction Co., 193 Kan. 701, 396 P.2d 301 (1964), the employee was injured on a public street in front of the employer’s premises and, again, this court refused compensation.
“. . . Linda was not on her employer’s premises at the time of the injury, nor was she yet performing any duties associated with her employment. She was merely on her way to work, an activity which the Kansas Legislature has made not compensable. Any risk of injury in the office building was no greater than that to which any member of the general public using the office building was subjected. Linda was not on her employer’s premises at fhe time of her injury, and therefore the injury is not compensable. We recognize this to be the minority view. However, the legislature has taken a position to that effect, and any change in that position will have to be by way of legislation.” 256 Kan. at 46-47.
In the case at bar, Chapman was on premises owned by Beech while she was in the parking lot. Clearly, however, she was not on her employer’s premises when she was injured while crossing Central Street. Thus, this case is factually similar to Murray and Thompson. We hold that the premises exception does not apply to the factual situation here since Chapman was not physically upon Beech’s premises at the time of the injury.
II. The Special Hazard Exception.
Chapman argues that the special hazard exception to the going and coming rule governs this case. As noted previously, that exception provides that the going and coming rule does not apply when the worker is “on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by the public except in dealings with the employer.” K.S.A. 1990 Supp. 44-508(f).
The ALJ found that Central Street had a special risk or hazard, while the Board found that it did not. Both found that it was used by the public other than in dealing with Beech.
Since its enactment, only one Kansas case has construed the second exception. Neither Chapman nor Beech discusses Bay v. Funk, 19 Kan. App. 2d 440, 871 P.2d 268 (1994), where the issue was whether the injured employee, Bay, could maintain his separate civil action against another employee, Funk, whose negligence caused Bay’s injuries. Because the Workers Compensation Act prohibits one employee from seeking recoveiy against a fellow employee when workers compensation applies to the injury, the court had to determine whether Funk “ would have been entitled to receive compensation had he been injured in the same accident.’ ” 19 Kan. App. 2d at 442 (quoting Wells v. Anderson, 8 Kan. App. 2d 431, 434, 659 P.2d 833, rev. denied 233 Kan. 1093 [1983]).
Funk was coming onto the employer’s premises on his way to work when he ran a stop sign located at the plant’s entrance, hitting Bay as Bay was walking beside a truck stopped in the entrance. The truck was stopped there because Bay was required to check the seal on its rear door before it could proceed.
The court agreed with the trial court that Funk would have been covered by the Act had he been injured under the second exception to the going and coming rule. To get to work, Funk’s employer required him to take a certain county road, which ends at the plant where Funk worked. Thus, this road was the only route available to Funk. Moreover, “[t]he only people using the road were people traveling to and from the plant.” 19 Kan. App. 2d at 441.
As for the special hazard requirement under the second exception, the court noted that there is not much guidance to the definition of the term “special risk”; however, it determined that the employer created a special risk “by directing employees and drivers to park on the road for inspection” and “by directing pedestrians to walk in the path of oncoming traffic to conduct these inspections.” 19 Kan. App. 2d at 443.
Chapman argues that the only available route from the parking lot to her place of employment is across Central Street, that this route involves a special risk or hazard because it is a major city artery and roadway, and that the route crossing Central is not used by the public except in their dealings with Beech.
Beech argues that Chapman had other available routes— namely three crosswalks, that no evidence was introduced that crossing the street posed a special risk or hazard, and that Chapman admitted that the general public uses Central Street, including those not conducting, business with Beech.
Taking each element of the exception separately, the first question is whether Chapman took the only available route from Beech’s parking lot to Beech’s plant. It is true, as Chapman argues, that she had to cross Central Street in order to get to the plant where she worked. It is also true, as Beech argues, that she had several choices as to where she could cross Central other than the exact point she chose.
The question turns on how narrowly we define the term “available route.” There is no evidence before us that Chapman was required to follow a fixed walkway or exact course while crossing Central between the parking lot and the plant.
Beech argues only that there were other available routes, including some crosswalks nearby. It does not argue that the crosswalks are safer routes, that they are legal routes, or that Chapman’s path was illegal. The problem with Beech’s analysis is that one could define an infinite number of different “routes” at various points along the curbing and then conveniently speculate that any of the other countless paths were other “available routes” which would have taken plaintiff safely across the street.
We believe it reasonable to adopt a more general definition of the term “available route” under the unique facts of this case, since there was no exact course or singular path which Chapman was compelled by circumstances to negotiate while on her way to work. We find, given the location of Chapman’s assigned parking lot in relation to the Beech plant, that circumstances required her to follow the only route available to her, a route which, by necessity, took her generally in a southerly direction across Central Street to the Beech plant. Chapman was on that “route” when she was injured.
The second element of this exception is that the route taken must involve a special risk or hazard. Chapman claims that Central Street poses a special risk or hazard because it is a busy, public street — a main city artery. Beech argues that it merely poses ordinary, everyday risks, not special risks.
As previously noted, the Bay court indicated that there is not much guidance anywhere as to what constitutes a special risk. In Chapman v. Victory Sand & Stone Co., 197 Kan. 377, 416 P.2d 754 (1966), the special risk was railroad tracks that the employees had to cross to get to work. In Bay, it was the trucks that were parked and pedestrians walking in the road that constituted the special hazard.
We have examined the record and find ample evidence to indicate that Central Street is a heavily traveled major arteiy in Wichita, Kansas. We note also that the accident occurred on January 8, 1991, at approximately 6:40 a.m. We take judicial notice of the fact that it is still dark in Kansas at that time of day during that time of year. Given these circumstance, we conclude that Chapman’s route to work constituted a special risk or hazard within the meaning of the statute.
The last element of the special risk exception is that the route must not be used by the public except in dealing with .the employer. Chapman argues that the public does not cross Central Street in the area in question except in dealing with Beech. Beech contends that the public does use Central Street and that Chapman admitted this. Beech’s argument misses the point. The route in question is across Central, not along it.
Chapman testified that the stretch along Central where Beech’s plant and property is located is approximately one mile in length and that to her knowledge, Beech owns everything on both the north and south sides of that stretch of Central. She also testified that only pedestrians who are either Beech employees or who have dealings with Beech would be crossing Central at the general location where she crossed. Nothing in the record indicates the contraiy. Although one may speculate that pedestrians might cross Central at that location for a multitude of purposes, there is no evidence that such occurs.
The decision of the Workers Compensation Board is reversed. That portion of the ALJ’s decision finding Chapman’s accident compensable and awarding compensation to her and against Beech is reinstated.
Reversed. | [
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Prager, C.J.
Retired: Spencer Joeckel appeals from an adverse jury verdict and judgment entered in a wrongful death action. Joeckel maintains the district court erred in computing the damages owed to plaintiffs by misapplying Kansas comparative fault principles.
The facts in this case are not disputed and are as follows. A vehicular accident occurred on November 11, 1992. Stephanie Frost, a passenger in Joeckel’s automobile, was killed as a result of the wreck. Stephanie’s mother, Deborah Gann, brought suit against Joeckel, alleging negligence as the cause of her daughter’s death. Stephanie’s father, Greg Frost, was subsequently permitted to intervene in the action.
Joeckel made claims of comparative fault against Craig Rideout (the other driver), Frost, and the Kansas Department of Transportation. Rideout was never joined in the wrongful death action by either party.
The case proceeded to trial before a jury. The court granted the plaintiffs’ motion for a directed verdict on the issue of Joeckel’s fault but ruled that Joeckel’s fault could be compared with the fault of Rideout. The court submitted the case to the jury for a determination of the allocation of fault between Joeckel and Rideout. The jury attributed 75% of the fault to Joeckel and 25% of the fault to Rideout. The jury then awarded $200,000 to the plaintiffs as damages for present and future nonpecuniary damages, $223.55 for Stephanie’s care prior to her death, and $5,084.51 for funeral expenses, for a total of $205,308.06.
The district court first applied the comparative fault statute, K.S.A. 1993 Supp. 60-258a, and reduced the jury’s award to an amount corresponding to Joeckel’s 75% of fault, which was $153,981.06. The district court then applied K.S.A. 1993 Supp. 60-1903(a) and (b), thereby reducing the plaintiffs’ nonpecuniary award to $100,000. The court then entered judgment in favor of the plaintiffs in the amount of $103,981.05. Joeckel filed a timely appeal.
The sole issue raised by Joeckel on the appeal is whether the trial court erred in its interpretation of 60-1903 as related to 60-258a.
K.S.A. 1993 Supp. 60-1903 reads in pertinent part as follows:
“(a) In any wrongful death action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but die damages, other than pecuniary loss sustained by an heir-at-law, cannot exceed in the aggregate the sum of $100,000 and costs.
“(b) if a wrongful death action is to a jury, the court shall not instruct the jury on the monetary limitation imposed by subsection (a) upon recovery of damages for nonpecuniary loss. If die jury verdict results in an award of damages for nonpecuniary loss which, after deduction of any amounts pursuant to K.S.A. 60-258a and amendments thereto, exceeds the limitation of subsection (a), the court shall enter judgment for damages of $100,000 for nonpecuniary loss.” (Emphasis added.)
K.S.A. 1993 Supp. 60-258a reads in pertinent part:
“(a) The contributory negligence of any party in a civil action shall not bar such party or such party’s legal representative from recovering damages for negligence resulting in death, personal injury, property damage or economic loss, if such party’s negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action shall be diminished in proportion to the amount of negligence attributed to such party.
“(d) Where the comparative negligence of the parties in any action is an issue and recovery is allowed against more than one party, each such party shall be liable for that portion of the total dollar amount awarded as damages to any claimant in the proportion that the amount of such party’s causal negligence bears to the amount of the causal negligence attributable to all parties against whom such recovery is allowed.”
Joeckel maintains the percentage of causal fault attributable to Rideout (25%) should be deducted from the total nonpecuniary damages permissible under 60-1903. To the contrary, plaintiffs maintain that pursuant to 60-258a, the percentages of fault are to be determined first and deducted from the total damages prior to the application of the nonpecuniary cap on damages.
The interaction between 60-1903 and 60-258a was considered and determined in McCart v. Muir, 230 Kan. 618, 629, 641 P.2d 384 (1982). In McCart, the Supreme Court held, without equivocation, that in applying the comparative negligence statute, 60-258a, in an action for wrongful death brought under 60-1901 et seq., the percentage of causal fault attributable to the decedent’s negligence plus the percentage of additional causal fault attributable to any direct negligence of the plaintiff are to be deducted from the amount of damages awarded by the court or jury for nonpecuniary damages, rather than from the maximum permissible recovery for nonpecuniary damages allowable under 60-1903. 230 Kan. at 630-31
Joeckel attempts to distinguish the factual situation in McCart from that in this case now before us so as to require a different result. He points out that the persons whose fault could be compared in McCart were the decedent, who was the driver; the decedent’s father, who was the named defendant sued on the theory of negligent entrustment; and the deceased children of the plaintiffs. The claim against the estate of the decedent driver had been previously settled for undisclosed sums. McCart and the cases cited therein did not involve a factual situation where there were multiple potential defendants at fault as in the present case where the negligence of the other driver, Rideout, a nonparty, was compared with the negligence of Joeckel.
We do not agree with Joeckel. The express language in 60-1903(b) states that “[i]f the jury verdict results in an award of damages for nonpecuniary loss which, after deduction of any amounts pursuant to K.S.A. 60-258a and amendments thereto, exceeds the limitation of subsection (a), the court shall enter judgment for damages of $100,000 for nonpecuniary loss”. This language clearly requires any amounts deductible under the comparative fault statute to be deducted from the jury award of damages before the statutory cap on nonpecuniary damages is to be applied.
This conclusion is consistent with the reasoning of the Supreme Court in Bright v. Cargill, Inc., 251 Kan. 387, 415, 837 P.2d 348 (1992). In that case, Bright was injured at Cargill’s grain elevator while working for Southwest, an independent contractor. Cargill had contracted with Southwest for Southwest to replace a leg drive on an elevator. An employee of the LSI Corporation had caused Bright to fall and suffer the injury. Bright sued Cargill and LSI on the theory of negligence. Cargill filed a motion for summary judgment, claiming to be Bright’s statutory employer and, therefore, that Bright’s exclusive remedy was under the Workers Compensation Act. The trial court granted Cargill’s motion and entered summary judgment. The case against LSI then proceeded to trial with LSI as the only defendant in the case.
The jury awarded Bright $1,643,250 for pain and suffering and assessed fault to Cargill of 60% and to LSI and its employee of 40%. The trial court first determined LSI’s share of the pain and suffering to be $657,300 (40% of $1,643,250) and then reduced LSI’s portion of the award to $250,000 as required under K.S.A. 1991 Supp. 60-19a01. This is the same procedure followed by the court in the present case.
LSI appealed on several grounds, including the claim it was only liable for 40% of the $250,000 limit for pain and suffering, which is the cap in 60-19a01(b) for the total amount recoverable by each party from all defendants for all claims for pain and suffering. K.S.A. 1993 Supp. 60-19a01(d) controls the interrelationship between the statutory cap and the consideration of comparative negligence principles in 60-258a.
K.S.A. 1993 Supp. 60-19a01(d) states:
“If the verdict results in an award for pain and suffering which exceeds the limit of this section, the court shall enter judgment for $250,000 for all the party’s claims for pain and suffering. Such entry of judgment by the court shall occur after consideration of comparative negligence principles in KS.A. 60-258a and amendments thereto." (Emphasis added.)
It should be noted the provisions of 60-1903(b) and 60-19a01 are basically the same. Both statutes require the trial court to consider the statutory cap on damages after comparative fault has been determined and applied to the damages found by the jury.
Bright relied on the decision of the. Supreme Court in McCart which held that in a wrongful death action the percentage of causal fault attributable to a decedent’s negligence plus the percentage of additional fault attributable to any direct negligence of the plaintiff should be deducted from the amount of damages awarded rather from the statutory limit allowable under 60-1903. 230 Kan. 618, Syl. ¶ 8.
In Bright, LSI challenged the applicability of the McCart rule because McCart involved the consideration of comparable fault attributed to the defendant and the plaintiff rather than the comparable fault of a codefendant.
This is essentially the same distinction made by Joeckel — that McCart is not applicable because the negligence of Rideout, the nonparty driver, is involved, not that of the decedent or the plaintiffs.
The Bright court rejected this distinction because under 60-19a01 the $250,000 limit on pain and suffering is a limit on the amount recoverable and subsection (d) clearly instructs the trial court to apply comparative fault principles before entering judgment for $250,000 for pain and suffering.
In view of the clear language of 60-1903(b) and the rationale of the Supreme Court in McCart and Bright, we hold that in applying the comparative negligence statute, 60-258a, in an action for wrongful death brought under 60-1901 et seq., the percentage of causal fault attributable to the negligence of a nonparty driver plus the percentage of causal fault attributable to any direct negligence of the decedent or the plaintiff are to be used to reduce the amount of damages awarded by the court or jury for nonpecuniaiy damages, rather than to reduce the maximum permissible recovery for nonpecuniary damages allowable under 60-1903.
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The opinion of the court was delivered by
Mason, J.:
John Taggart sued the Chicago, Rock Island & Pacific Railway Company for damages resulting from the burning of a barn and its contents. The general verdict was in his favor, but the trial court rendered a judgment for the defendant upon the special findings, and the plaintiff appeals.
Written instructions were given the jury, one of them reading as follows:
“If the defendant in the case has proven by a preponderance of the evidence in the case that the engine which it is claimed set out the fire was equipped with the approved appliances for the prevention of the escape of fire, and that the same were in good order, and that the engine was being operated by a skillful and competent engineer and fireman, and that there was no mismanagement or negligence on the part of the said engineer or fireman in the management of said engine, then the proof of these facts would be a complete defense to the action of the plaintiff and your verdict must be, in such case, for defendant.”
The jury found in response to special questions that the engine which set out the fire was properly constructed and operated. It is therefore obvious that the findings compelled a judgment for the defendant unless the instruction quoted was modified. . The plaintiff contends that this particular instruction, when read in connection with others, merely means that proof of the proper construction and operation of the engine would constitute a defense so far as related to the charge of negligence in those respects. We can not accept this view. The jury were told that the plaintiff charged that the defendant was negligent in allowing combustible material to accumulate upon the right of way, but this was incidental to a statement of the pleadings. They were also told that the burden of disproving negligence was upon the defendant. But the instruction quoted indicates clearly that in the mind of the court the evidence conclusively showed that the fire did not result from any negligence of the defendant in respect to permitting litter upon the right of way. Otherwise the jury would necessarily have been told the effect of a finding in that matter, and no such instruction was given them. The explicit instruction that proof of due care in equipping and handling the engine was a “complete” defense amounted to a definite withdrawal from the jury of any issue regarding negligence on the part of the company in failing to keep the right of way clear of combustible material.
The jury also found that the barn had been built by its original owner upon the right of way, under an unrecorded lease from the railroad company, one of the terms of which was that the company should be exempt from liability for any loss by fire; that the plaintiff purchased the building without knowledge of the lease, and without inquiry as to the conditions under which it had been erected; that the company knew of his purchase and made no objection to his using the property. The defendant claims an exemption from liability in virtue of its contract. Under the authorities the agree ment was valid between the parties. (James Quirk Milling Co. v. Minneapolis & St. Louis R. Co., 98 Minn. 22, and cases cited.) Whether it was binding upon the plaintiff under the circumstances stated need not be determined. A similar question is discussed in Wooldridge & Son v. Ft. W. & D. C. Ry. Co., 38 Tex. Civ. App. 551, affirmed in Ft. W. & Denver City Ry. Co. v. Wooldridge & Son, 101 Tex. 471. Other cases of more remote bearing are: Alabama Great Southern R. Co. v. Demoville, [Ala. 1910] 52 South. 406, and Texas & Pacific Ry. v. Watson, 190 U. S. 287.
The only question here involved is whether the findings required a judgment for the defendant. This must be determined in the light of the issues presented by the instructions rather than by the pleadings. The instructions are not complained of and must be regarded as settling the matters there covered. The case was tried while the old code was in force, and the instructions, not having been excepted to, became the law of the case. (2 Dec. Dig., p. 50, § 853.) The result here would necessarily be the same under the present practice. The evidence as to the manner in which the fire was set may have conclusively established the fact that it was not due to any neglect of the defendant in regard to the condition of the right of way; and in view of the charge given this must be presumed to have been the case.
The judgment is affirmed. | [
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Per Curiam:
It appears from the abstract that a motion was filed to require copies of the note and mortgage to be attached to, the answer. While the abstract does not show that the motion was acted upon, the failure to attach such copies is one of the grounds of the motion to strike the amended answer from the files, and it will be assumed that this is the ground upon which the court sustained the motion. When the amended answer was stricken from the files it left the original answer standing as though no amended answer had been filed. (See 20 Encyc. PI. & Pr. 994, where there is a mistake in the text, which should read: “as though no amended answer had been filed.”) All that was left of the original answer was the general denial, a demurrer having been sustained to the other defenses, and the appellant might have offered her evidence under the general denial but preferred to stand upon her claim that the court erred in refusing permission to file another answer. It was within the discretion of the court to refuse permission to file a second amended answer. The abstract fails to disclose error in the court’s rulings. The evidence of the appellee shows that the mortgage debt had been paid.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Elliott brought this action to quiet title to land in Haskell county, alleging that he was the owner and in the actual possession thereof, and that the defendant, Hudson, claimed an interest therein by reason of two' certain tax deeds, dated September 4, 1905, and further alleged that the tax deeds were void and conveyed no title.
Hudson answered, first, by a general denial, and second, by alleging that he claimed the land by virtue of the tax deeds mentioned in the petition, that the same were valid, and that the tax proceedings were regular. The answer further alleged that at the time-Elliott purchased the outstanding adverse title he did so as the agent and in fraud of the defendant’s rights, and that the defendant was entitled to have the court decree him to be the legal and equitable owner thereof.
On the trial the plaintiff introduced a witness to show that the land was in fact vacant and unoccupied, when the action was commenced, and amended his petition accordingly, and rested. The defendant demurred to the evidence, which the court overruled, and the defendant, having elected to stand upon the-demurrer, appeals.
The principal error complained of is that the court erred in holding that the plaintiff’s title was admitted by the answer. We think the special defense set up in the answer admitted that the legal title to the land was in the plaintiff, and that the only reasonable inference to be drawn from the answer is that whatever title the plaintiff held had been acquired subsequent to the execution of the tax deeds, and therefore the court rightly held that the defendant had the burden. The averments of the special defense operated as a modification of the general denial, and are to be taken as true without other proof. (Albert Wiley v. Keokuk, 6 Kan. 94; Barnum v. Kennedy, 21 Kan. 181; Felix v. Railway Co., 60 Kan. 467.)
The defendant argues in his brief that the petition as amended failed to set up a cause of action independent of the statute because it did not sufficiently allege the nature of plaintiff’s claim. It alleged an adverse claim in the defendant, based upon tax deeds, that these were void and conveyed no title, and this was an averment of an adverse claim sufficent to justify the interference of a court of equity. (Douglass v. Nuzum, 16 Kan. 515.) That case is cited and relied upon by both parties, but we understand it to hold that in an action to quiet title, independent of the statute, equity will interfere and grant relief against a title under a tax deed which though apparently valid can be shown to be void only by testimony aliunde, because under our statute such a deed would ripen by the lapse of time into a perfect title. If the defendant claims that the statement that the tax deeds were void is too general his remedy was by motion to make more definite and certain. The petition in general terms stated a cause of action and the defendant is in no position to question the sufficiency of the petition by a demurrer to the evidence.
In California, where the rule obtains that the complaint must state the facts showing the apparent validity of the instrument claimed to constitute the cloud, and also facts showing its invalidity, it was held that if the instrument is a tax deed, which the statute there makes prima facie evidence of title, the name of the instrument -is sufficient to show an apparent validity,, and where no demurrer had been interposed a judgment could not be reversed upon, the ground that the complaint failed to state facts quite so fully as it should. (Hibernia S. & L. S. v. Ordway, 38 Cal. 679.)
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Per Curiam:
These actions, respectively, are to set aside tax deeds less than five years old. The cases involve the same facts, were tried as one case below, and it is agreed that they should be so considered here. The appellant contends in each case that the tax deed is void on its face for the reason that the deed recites a consideration in excess of the sum of the amounts which the county clerk could legally include therein.
A tax deed was issued to one L. A. Bunker for 174 town lots and tracts of land, of which the appellant, Forward, previously owned all of the lots embraced in these two actions. Forward brought these actions in ejectment against the appellees, who purported to have title by conveyances from the purchaser of the tax deeds.
The aggregate consideration recited in the tax deed to Bunker for the conveyance of the 174 lots, of which the eight lots in question are a part, is $770.45, as “taxes, costs and' interest.” It is conceded by the appellees that if the aggregate of the amounts for which each tract was assigned by Reno county to Bunker (the lots having, for want of other bidders, been bid off to the county), plus $17.40, being ten. cents paid to the treasurer for the assignment of the certificates, is less than $770.45, the tax deed is invalid. The appellees in their brief compute the total consideration of the assignments at $753.93, to which, if $17.40 be added, the sum is $771.33. By this computation the deed was executed for 88 cents less than the total of the assignment.
The appellant, however, computes the amount of the assignments for the 174 lots at $751.83, a difference of $2.10, to which, if the $17.40 be added, the amount would be $769.23, or less than the amount of the consideration recited in the deed. We have had the computation carefully made and find that the aggregate of the amounts for which the assignments were made is even less than is made by the attorneys for the appellant. The consideration expressed in the deed for which the transfer was made is greater than the sum so obtained; hence the deed is void upon its face. (McQuesten v. Swope, 12 Kan. 32; Genthner v. Lewis, 24 Kan. 309.)
The case of Dye v. Railroad Co., 77 Kan. 488, is cited as authority that the ten cents per lot or tract for the certificate can not be included in the consideration for the tax deed; but we are not satisfied with what is therein said upon this question. As we have seen, it is not necessary to decide the question in this case; nor was it necessary in that case. It was not determinative of the case, and without this question the case was properly decided.
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Per Curiam:
This is an appeal from a judgment rendered in a somewhat involved suit for specific performance. The controlling testimony was given orally and portions of it are conflicting. No findings of fact or conclusions of law were separately stated. Consequently this court can not tell what the views of the trial court were respecting either the law or the evidence. The plaintiff waived' his right to special findings by making his request for them too late, and the result is that a consideration of the real merits of his case on appeal was in practical effect waived. If the district court, even at some inconvenience, could have complied with the request it would have greatly aided this court in reviewing the proceedings.
It seems probable that specific performance was denied because an early consummation of the contract was contemplated, which became impossible. While there was no agreement to exchange deeds at once and while the contract did not stipulate that time was of its essence, still, in specific performance, the court may inquire into the situation and avowed objects and purposes of the parties, and if they should show that time was in fact an important element of the transaction it may control the decree. Evidence of this kind does not impeach or modify the contract. It merely informs the conscience of the court.
After the time had gone by for the defendants to obtain the benefit which moved them to agree to trade they notified the plaintiffs that the deal was off. Another month elapsed before the plaintiffs were in a position to make a tender. Consequently the court had fair ground for holding that the equities were with the defendants. The evidence in support of this view of the case is not very strong, but it is sufficient to warrant an exercise of that discretion which all equity courts possess in suits for specific performance. At least this court is 'unable to say, from the abstract presented, that the district court abused its discretion.
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The opinion of the court was delivered by
Johnston, C. J.:
About forty, years ago the public officers undertook to establish a highway over the land of appellant. A petition purporting to be signed by nineteen householders was presented to the board of county commissioners, asking for the laying out of a highway, on which viewers were appointed to lay out the road, after a bond for damages had #een given. The viewers met and laid out the highway and made a report of their action, which was accepted by the board on April 7, 1871. Testimony was given to the effect that the highway attempted to be laid across appellant’s land had been traveled ever since it had been laid out, in 1871; that it was the main traveled road through that part of the country; that it passed through a narrow defile, or gap, and that the travel had been confined to the line surveyed and laid out; that some work had been done on it by the road overseers, and, in later years, appellant had built fences on each side of the traveled road.
The record of the officers in establishing the road is incomplete and the proceedings taken by them appear to be somewhat defective. There is a difference of opinion in the court as to whether the condemnation proceedings can be held valid in this collateral attack, but we are united in holding that the road which the officers undertook to lay out became a highway by dedication and acceptance. The action of the officers was taken when appellant’s land belonged to the United States. A homestead entry was made on forty acres of the tract a year or more after the attempt to establish the road was made, and it was several years after that time before the remainder of it was entered. The act of Congress of 1866 provided that “the right of way for the construction of highways 'over public lands, not reserved for public uses, is hereby granted.” (U. S. Rev. Stat. 1878, § 2477.) In Tholl v. Koles, 65 Kan. 802, it was held that this act “is a present grant, and, if accepted by the legislature or the public, in an effectual manner, while the land is a part of the public domain, a highway is established.” (Syl. ¶ 1.) Here the officers, representing the public, proceeded to lay out the road, fixed its location, and ever after there appears to have been a concurrence of the' officers and the general public in treating and using it as a public highway. There was no acceptance of the grant by legislative act, as in the Tholl case, but an effectual acceptance may be made by the officers having charge of the roads, as well as by the public itself. In Molyneux v. Grimes, 78 Kan. 830, where the steps taken to establish a road were defective and irregular, the court considered the question of what was necessary to an acceptance of the congressional grant, and it was said:
“It would seem that the public might directly accept the offer of congress by general and long-continued use, and some of the decisions collected in the work referred to [6 Fed. Stat. Ann., pp. 498, 499] are to that effect; but whether so or not, it is clear that an effectual acceptance may be made by the officers to whom the matter of establishing highways has been committed by the legislature.” (p. 832.)
In Streeter v. Stalnaker, 61 Neb. 205, where the steps taken by the officers in establishing a highway were insufficient, the court held that there was enough to constitute an acceptance of the governmental grant. It was said:
“By this act the government consented that any of its lands not reserved for a public purpose might be taken and used for public roads. The statute was a standing offer of a free right of way over the public domain, and as soon as it was accepted in an appropriate manner by the agents of the public, or the public itself, a highway was established.” (p. 206.)
In the case at bar we have not only the act óf the officers who, acting for the public, caused a road to be surveyed across appellant’s land, but we have the action of the public itself in using this road, which the trial court found was a “clearly marked and well-defined road,” and this continued for more than thirty-five years before the suit was brought. In considering a like dedication and acceptance the supreme court of Oregon said:
“The act of congress is more than a mere general offer to the public, being in effect a dedication of the land, which becomes operative and relates back to the date of the act whenever the public, either by user or by some appropriate act of the highway authorities, affirmatively manifests an intention to use a certain definite portion of the public land as a highway. The right is necessarily indefinite, and, in a sense, floating and liable to be extinguished by a sale or disposition of the land until the- highway is surveyed and marked on the ground, or in some other way identified or designated; but when the public authorities lay out and locate a road over public land of the United States by surveying and marking it on the ground, or by some legislative act, or when it is shown by user, the right becomes complete, and an intention to accept the dedication is manifested, and subsequent settlers on the land take subject to the easement.” (Wallowa County v. Wade, 43 Ore. 253, 257.)
The case of Smith v. Smith, 34 Kan. 293, is cited as an authority that a road can not be established on government land so long as the title remains in the United States, but the question of dedication by congressional grant was not presented to or considered by the court in either that case or The State v. Horn, 85 Kan. 717, which is also cited. In Molyneux v. Grimes, 78 Kan. 830, the claim was made that the Smith case determined that a public road can not be established through government land by prescription, limitation or by dedication, but the answer of the court was that “no claim was made under the federal statute, and it was not called to the attention of the court.” (p. 832.)
The acceptance of the congressional grant, in a case where the county authorities had not formally established a highway, was again before the supreme court of Nebraska, and it was decided that it might be accomplished by the acts of the officers or agents of the public, or by the acts of the public itself, and it was further held:
“A settler upon the public lands of the general government, upon which there is a road in common and general use as a highway, takes subject to the public •easement of a right of way on such road, although the same was never established by the public authorities under the general road laws of the state.” (Van Wanning v. Deeter, 78 Neb. 282, syl. ¶ 3.)
Here the acts of the officers in locating the road were taken a year before any settlement was made on any part of appellant’s land, and the road appears to have been used by the public as much as roads were ordinarily used in a sparsely settled section of the state. A long user by the public is not necessary to an effectual acceptance of a dedication where the owner (the United States in this instance) has given consent and is holding out a standing offer to dedicate land for a highway. Where there is consent by the owner, the length of time of the public use is not important, for, upon an acceptance by use, the rights of the public to an easement immediately pass and vest. (Schwerdtle v. County of Placer, 108 Cal. 589.) Here the accept anee does not rest on use alone, but on the action of the officers, who acted for the public, combined with the use by the public itself. The steps taken by the officers-toward laying out the road are sufficient evidence of a purpose to make a highway over appellant’s land. It was viewed and located by them, and, while there was-an error in the plat filed, the evidence of their action leaves little doubt of the location of the road. The public has since that time used the road, and, with very little deviation, the travel has been confined to the line located by the officers. The use by the public was immediate and long continued. Some work has been done-on the road by those in charge of the highways in that, locality, and everybody appears to have treated it as a. highway until 1895, when appellant raised a question about the validity of the proceedings taken to lay out the road. That was twenty-four years after the road .had been located and used, and even then he took no-steps to prevent travel. Later he built fences on each, side of the road, and thus, in a way, acquiesced in its-existence until about the time this action was brought. It is not necessary to rest the decision on the user by the public for the statutory period of fifteen years, but it is placed rather on the concurring acceptance of the-officers and the public itself, at and shortly after the location of the road. The following additional authorities tend to support the view that the road existed, by dedication and acceptance: Wells v. Pennington. County, 2 S. Dak. 1; Keen v. Board of Sup’rs of Fairview Twp., 8 S. Dak. 558; Riverside Township v. Newton, 11 S. Dak. 120; Mills v. Glasscock, (Okla. 1910) 110 Pac. 377; Smith v. Mitchell, 21 Wash. 536; Adams v. Iron Cliffs Co., 78 Mich. 271; Eldridge v. Collins, 75 Neb. 65; Cassidy v. Sullivan, 75 Neb. 847; Toll Road Co. v. Edwards, 3 Colo. App. 74; McRose v. Bottyer, 81 Cal. 122; Rolling v. Emrich, 122 Wis. 134; Township v. Skauge, 6 N. Dak. 382.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Bürch, J.:
The argument in support of the chief assignment of error depends upon a view of the evidence which the trial court refused to adopt. The controlling testimony was given orally and was conflicting. The trier of the facts has found the facts. The findings are abundantly sustained by the evidence. For nearly fifty years the court has uniformly held in such cases that the findings are conclusive on appeal. The rule will be adhered to in this case.
It is said that the plaintiff’s written consent to her husband’s will was not binding upon her because of her Ignorance of her husband’s financial status. The point is an afterthought. It was not made in the petition and the twenty-second finding that at the time, the plaintiff consented to the will she had a general idea of her husband’s financial condition was gratuitous. The evidence upon which this finding is based came from the plaintiff herself and is recited in the statement of facts. It shows that she knew of the bulk of her husband’s property and of the general state of his financial affairs. Acting upon the knowledge she possessed she procured the will to be drawn, was present during its preparation and was consulted in reference to the provisions to be inserted for her benefit. The matter was not one in which the law required her to choose between two situations, neither of which she created, but it was one of active concurrence in the result of a transaction which she desired should take place and. which she aided in bringing about. With a general understanding, that her husband was a man of means, and with full knowledge of her right to one-half of all he possessed, she was satisfied with a relatively small portion of what she knew he owned. She so expressed herself to her husband when he was apparently seeking to please her. She so expressed herself privately to the attorney who advised her of her rights. She was of fair intelligence and reasonably well educated, was mentally competent, understood and knew what she was doing, knew the purpose, terms and effect of the will, and gave her unconstrained consent to it. She then proved the will, became its executrix, proceeded with a settlement of the estate, made partial distribution, and entered into the enjoyment of portions given her by the will. Under all these circumstances the discovery that the estate was larger than she had anticipated affords no reason for setting aside the consent she had previously given.
It is not necessary that the decision be rested upon the ground just considered. The court found as a fact an election by conduct to take under the will. The evidence was amply sufficient to warrant the'finding. (Reville v. Dubach, 60 Kan. 572; Cook v. Lawson, 63 Kan. 854.) In the case of Reville v. Dubach, supra, the syllabus reads as follows:
“Although the statute provides for a formal election by the widow whether she will take under the will of her deceased husband, in lieu of the share which the law gives her, an election may be made by acts in pcCis, and hence the record is not the only proof of such election.
“The proof of an implied election must be clear and satisfactory, but a deliberate and intelligent choice is deemed to be as binding as though it were formally made.
“If, after ascertaining her rights and learning what she could take under the will as well as by the law, she deliberately proceeds as though an election had been made, accepts the benefits of the will and actually takes under it, she will be concluded, and will not be heard to say that no election has been made.” (60 Kan. 572, syl. ¶¶ 1-3.)
The syllabus of the decision in the case of Sill v. Sill, 31 Kan. 248, reads as follows:
“In order that the acts of the widow shall be regarded as equivalent to an election to take under the will, it is essential that she act with a full knowledge of all the circumstances and of her rights, and it must appear that she intended by her acts to elect to take the provision which the will gave her. These acts must be plain and unequivocal, and be done with a full knowledge of her rights and the condition of the estate. A mere acquiescence, without a deliberate and intelligent choice, will not be-an election.” (Syl. ¶ 5.)
Every requirement of this rule is fully met by the findings of fact.
Other matters discussed in the briefs are not of sufficient moment to require the publication of an opinion respecting them.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The appellant owns the northwest quarter of section 21. A road was petitioned for, beginning at the southwest corner of section 21, thence to the north line of the township — a distance of four miles.
Viewers were appointed who, in company with the surveyor, laid out the road and reported to the county commissioners that after meeting at the point of beginning they viewed and laid out the route as petitioned, for, which was surveyed under their direction by the county surveyor, and that he conspicuously marked the road throughout, noting the courses and distances. The surveyor reported that the survey was as follows:
“Began at the corner of sections 20, 21, 28 and 29, township 1 south, range 4 west, ran north 9 degrees 45 seconds; all section corners being plainly marked, we did not chain the distance but ran entirely by transit. A question being raised as to the location of the corner of sections 16, 17, 20 and 21, I went to the corner of sections 15, 16, 21 and 22, ran west 80.45 chains to said corner of sections 16, 17, 20 and 21.”
The plat of the road so surveyed is attached to the answer and marked “Exhibit A.”
The board found the road a public utility and ordered that the report of the view and the plat of the survey be adopted, and that the road be declared located and established as a public highway, “beginning at the southwest corner of section 21, said township, thence running north regardless of disputed corners to the state line.” It was further ordered that the. trustee be notified to open the road for public travel, and that the appellant, A. C. Willis, be allowed $10 in full compensation for all damages occasioned by the location and establishment of the road.
The appellant seeks to enjoin the opening of the road and claims that the true corner of sections 16, 17, 20 and 21 is about six rods west of where the surveyor-reported that it belongs, which the appellant urges causes a deviation ■ from the real section line — the intended location.
The appellees claim that the reports and orders must govern and that the appellant has mistaken his remedy ; that he should have appealed if he was dissatisfied. It appears that he did attempt to appeal from the surveyor’s report, but this was without avail, for the reason that he proceeded under section 2275 of the General Statutes of 1909 (Laws 1891, ch. 89, § 10), which has reference only to a land survey and gives no right of appeal from the report of the surveyor who acts with the viewers in locating a road.
It is argued that the reports and order show on their faces that the intended section line was left to the west by the road laid out, and that it is therefore in law no road. We think, however, that the petition, the reports and the order, taken together, show conclusively that the road was simply to run north from the point of beginning to the termination, and that this was to be done regardless of disputed corners. It is clear that the whole trouble arises over the true location of the northwest corner of section 21, and if the appellant felt aggrieved by the reports and the order he should have appealed. The fact that he was awarded damages indicates that he had ample time and notice and we think he has mistaken his remedy. (Civ. Code, § 567; Laws 1903, ch. 411,' § 4, Gen. Stat. 1909, § 7280.)
The judgment is affirmed. | [
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Per Curiam:
In a petition of the appellant for a rehearing-it is insisted that while this court has declared the law of the case as the plaintiff contended, it has denied to him the fruits of the victory, and compelled the parties to litigate a question not in issue under the pleadings. The action was to recover the-possession of real estate. The answer was a general denial. The evidence proved that the plaintiff had an equity in the land under the contract, but this did not give him the right of possession. He was entitled to less than he claimed, but still he should recover his real interest. The defendant’s repudiation of' the contract could not defeat the plaintiff’s rights under it.
It is insisted, however, that the defendant should not have any benefit of the contract, because she made no claim under it. It is true that she, too, claimed more than she was entitled to, but this claim did not give to the plaintiff any greater interest in the property than he was justly entitled to under the contract. After authorizing her son to procure a conveyance from her husband, she refused to make payment and accept the deed; but this action did not operate to give to the plaintiff an absolute-title in fee simple to the land, which he testified that he purchased for her as her agent. He held, and still holds, the legal title in trust for her, but subject to his right under the contract.
While the defendant did not plead the contract, the plaintiff presented it in evidence, thus showing the extent of his interest, and this is all that he can recover.
Complaint is made of the order directing a new trial. This order permitted the plaintiff to prove any equity he might possibly have in the land further than that appearing from the face of the contract, but as -he now says that all the facts are shown in the record and asks that judgment be ordered thereon if a rehearing is denied, and as it thus appears that further litigation is unnecessary this request will be granted.
A doubt was expressed in the opinion whether the plaintiff should recover more than the $900 paid to J. G. Arnold. In view of the facts that the plaintiff also released his interest in the agreement for the father’s support, as part of the transaction, and that the stipulation of the mother to pay $1100 to the- son was not made conditional upon the amount to be paid to the father, it is now held that she should pay the $1100, as provided in the agreement, less the $100 advanced at its date, with interest on such balance at the legal rate from the date upon which the -plaintiff offered to make conveyance to the defendant.
' A judgment should be entered carrying into effect the contract of February 13, 1909. The plaintiff should be' required to deliver to the defendant, or deposit in court for her, a conveyance to her of the land in question, duly executed and acknowledged, together with an abstract of title and the deed or deeds made by J. G. Arnold and his wife to him, as provided in the contract, and a release of any encumbrances, lien or liens given or suffered upon the land by the plaintiff or J. G. Arnold or J. G. Arnold and wife, or either of them. The defendant should be -required to pay or deposit in court for the plaintiff the sum of $1000, and interest as stated. A reasonable time should be fixed for such deliveries and payment; and a lien should be declared upon the land to secure such payment and the usual provisions made for enforcing the same by sale as upon execution.
The costs should be paid in equal parts by the plaintiff and the defendant.
The motion for a rehearing is denied, and a mandate will be issued directing the district court to enter judgment in accordance with these views. | [
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The opinion of the court was delivered by
Mason, J.:
The state, on the relation of the attorney-general, asks a mandamus against Van B. Prather requiring him to make a report of the fees collected by him while probate judge of Wyandotte county, and to deliver a book containing a record of them. The county commissioners and county auditor join as plaintiffs.
The defendant suggests that mandamus can not be maintained against him, because he has resigned and his term has expired. The proceeding was begun while he was in office, and if it was then his duty to do the act demanded of him, and no one else can perform it, its performance by him may still be enforced as an official duty, notwithstanding he is no longer an officer. In this, respect the situation is analogous to that arising when an outgoing officer refuses to turn over to his successor the property belonging to the office — a situation in which mandamus is held to be a proper remedy. (Huffman v. Mills, 39 Kan. 577; Metsker v. Neally, 41 Kan. 122; The State v. Lawrence, 76 Kan. 940; 31 L. R. A. 342, note.)
A number of other reasons are suggested why a writ should not issue. Most of them relate to questions of fact, or to matters appropriate to be investigated upon a return to an alternative writ. A preliminary question is whether the statute imposes upon the probate judge of Wyandotte county the duty referred to, and we deem it proper to determine this prior to the issuance of any writ.
In 1899 the legislature' passed an act (Laws 1899, ch. 141) relating to the compensation of county officers. So much of it as is here important is still in force (Gen. Stat. 1909, §§ 3669, 3671), except so far as it is affected by subsequent legislation hereinafter mentioned. • Section 12 (Gen. Stat. 1909, § 3669) relates to probate judges, and allows them to retain fees in amounts proportioned to the population, dividing the excess with the county. In all counties having more than 55,000 inhabitants the fixed amount is $3000 a year. Section 14 (Gen. Stat. 1909, § 3671) requires certain county officers, including probate judges, to keep a record of all fees collected, in a book which shall be open to public inspection, and to file quarterly reports under oath showing their amount.
In 1901 an act was passed (Laws 1901, ch. 214) relating to the compensation of the treasurers and probate judges- of Shawnee and Wyandotte counties. It fixed the fees of the probate judge in each of these-counties in accordance with the general schedule, except as to two items, which were increased, and allowed him to retain the entire amount collected. It. included a section reading as follows:
“Original section 14 of chapter 141 of the Session. Laws of 1899, and all acts and parts of acts, so far as the same are inconsistent with the provisions of this act, are hereby repealed.” (§3.)
In 1909 an act was passed (Laws 1909, ch. 142) purporting to repeal such act of 1901 so far as it applied to Wyandotte county.
The plaintiffs maintain that with the repeal of the special act of 1901, relating to Wyandotte county, the probate judge of that county became subject to the general law of 1899, and was required to divide with the county fees collected in excess of $3000, and to record and report the amount collected. The defendant insists that to give the law this effect would be to ignore the rule that “the repeal of a statute does not revive a statute previously repealed.” (Gen. Stat. 1868, ch. 104, § 1, subdiv. 1, Gen. Stat. 1909, § 9037, subdiv. 1.) We think, however, that the act of 1901 was not a “repeal” of the act of 1899, within the meaning of that rule. Clearly the legislature did not intend by it literally and absolutely to repeal section 14 of chapter 141 of the Laws of 1899. The defendant recognizes this in his brief by speaking of section 14 as having been “repealed as to Wyandotte county” by the act of 1901. What was obviously meant was that the special law and not the general should govern in Wyandotte county; in other words, that Wyandotte county should be withdrawn from the operation of the general statute and be governed, as to the matters covered, by the provisions of the special act. When the special act was repealed, in the absence of specific provision on the subject the general law became operative in Wyandotte county as well as in the rest of the state. This conclusion accords with the spirit and purpose of the statutory rule, and with the interpretation elsewhere placed upon it.
“The statutory rule is inapplicable to cases where the original act has been modified only and not repealed by the later one, as where an act merely excepts a particular class of cases from the operation of a previously existing general law, which continues to be in force. By the repeal of the act creating the exception, the general statute which was in force all the time then becomes applicable to all cases, according to its terms.” (26 A. & E. Encycl. of L. 761.)
This principle was recently applied in Dykstra v. Holden, 151 Mich. 289, the effect of the decision being in accordance with a headnote reading:
“The rule that a statute once repealed is not revived by the repeal of the repealing act is not applicable to a case in which the original act is not in fact repealed, but merely discontinued in its operation with reference to a particular territory, in which case the discontinuing act being repealed there is nothing to prevent the original act from again becoming operative in the exempted territory.” (¶ 5.)
(See, also, 36 Cyc. 1101, note 72: Grocery Company v. Burnet, 61 S. C. 205; Durr v. Commonwealth, 3 Pa. Co. Ct. R. 525; Barren County Court v. Kinslow, 9 Ky. Law Rep. 108; The State v. Sawell, 107 Wis. 300.)
The defendant assails the validity of the act of 1909 upon the ground that it violates the constitutional provision (art. 2, § 16) that no bill shall contain more than one subject, which shall be clearly expressed in the title. The act not only undertakes the repeal, so far as Wyandotte county is concerned, of chapter 214 of the Laws of 1901, relating to the compensation of the treasurer and the probate judge of Wyandotte and Shawnee counties, but also the entire repeal of chapter 217 of the Laws of 1901, relating to the fees of the sheriff, register of deeds and court clerks of Wyandotte county. We think within the’meaning of the constitution the act relates only to one subject— the compensation of officials of Wyandotte county— and that this subject is clearly expressed in the title.
A more serious question is whether the act of 1909' violates the constitutional provision forbidding the enactment of a special law where a general .one can be made applicable. (Art. 2, § 17.) It is obviously in a sense special legislation relating to a subject (the compensation, of county officers) capable of regulation by a general law. But it was enacted under peculiar circumstances. There was in force at the time a general statute regulating the compensation of county officers according to population, and a few special statutes taking particular counties out of the rule so established. These special statutes were valid because they were passed while the legislature had the power to determine finally whether a general law could be made applicable to the subject — a power that was transferred to the courts in 1906 by constitutional amendment. The new act was not within the reason, or the spirit of the rule against special legislation. The mischief against which the prohibition is directed had already been done. The special acts had- already been, passed. Several counties had already been' taken out of the general rule. The later enactment tended to remedy the existing evil — to reduce the number of counties governed by special acts — to take Wyandotte county out of the list of exceptional. cases and subject it to the operation of the general law. Courts disagree as to whether the adoption of a rule against special' legislation prevents the amendment of a special act previously passed. (Binney’s Spec. Leg. p. 122 et seq.) But the reasons for holding that an existing special act may not be amended by adding thereto have no application where it is repeáled in whole or in- part,, although by a special act.
There was also enacted in 1909 (ch. 145, Gen. Stat. 1909, §§ 3707-3727) a law fixing the compensation of county officers in counties having a population of over 90,000 (a description which at that time applied only to Wyandotte county), the probate judge being allowed, a salary of $3500. Chapter 142 of the Laws of 1909, which repealed the special law on the subject, took effect upon its publication in the official state paper, March 30, 1909. Chapter 145 did not take effect before the statute book was issued, which was May 29, 1909.' The defendant maintains that as the two acts related to the same matter,"and were practically contemporaneous, they should be construed together and treated as though parts of the same enactment, so that the special law of 1901 should not be deemed to be repealed until the law of 1909, general in form, should ‘become effective; in other words, as applied to the office here involved, that the probate judge should continue to retain all the fees collected until his salary of $3500 began. There would be much force to this contention if the new schedule of salaries dated from the-publication of the statute book. It' might well be argued that the legislature did not intend that the old general law should govern for the brief interval between March 30 and May 29, 1909. But the salaries fixed by chapter 145 were made to begin as to a part of the county officers on July 1, 1909, and as to the others, including the probate judge, on January 1, 1911. The legislature having provided for the immediate repeal of the special schedule, and having postponed the operation of the new schedule for so considerable a period, must be deemed to have intended that in the interval the general law should control, and that from March 30, 1909, to January 1, 1911, the probate judge should divide with the county all fees collected in excess of $3000 a year.
The court is of the opinion that the defendant is under a duty to account for the fees received between the dates indicated, and that the performance of the duty may be enforced by mandamus at the instance of the attorney-general, upon the principle that the state has always a substantial interest in seeing that a public officer complies with the law. (The State v. Lawrence, 80 Kan. 707.)
As the court is of the opinion that the statute imposes the duty sought to be enforced, an alternative writ will be allowed. The question whether special facts exist justifying the withholding of a peremptory writ as a matter of discretion, or rendering it unavailing, can be presented by answer. | [
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The opinion of the court was delivered by
Porter, J.:
There are thirty-three errors assigned, but few of which require comment. It is claimed that the court erred in not requiring certain special questions to be answered more definitely by the jury. All of the questions were so complex and involved that the court might properly have refused to submit them in the first place. The appellants also submitted to the court twenty written requests for instructions upon questions of law and of fact which they claimed were pertinent to the issues, and error is predicated upon the refusal to prepare and give instructions upon these matters. We think the court properly denied the requests, none of which was in the form of a written instruction.
The court, however, erred in not directing judgment in favor of the appellants on the plea of the statute of limitations. There can be no question that the action was not brought within two years from the time the alleged fraud should have been discovered. (Black v. Black, 64 Kan. 689; Lewis v. Duncan, 66 Kan. 306; Donaldson v. Jacobitz, 67 Kan. 244; Rogers v. Richards, 67 Kan. 706; Hutto v. Knowlton, 82 Kan. 445.)
In Black v. Black, supra, a party was charged with unfaithful administration of an estate of a deceased person. It appeared that she had filed her report and account as required by law for the express purpose of affording information to' all persons interested, and it was held that these public records gave constructive notice to all parties as to what was done. In Hutto v. Knowlton, supra, the foundation of the rule as to constructive notice of fraud by public records sufficient to start the statute of limitations was said to consist in this:
“Where a public record is required by law to be kept as a source of. information respecting property rights and interest a duty rests upon anyone to whom the in formation is material to improve with diligence the opportunity of learning that which the record discloses. It follows that if the opportunity be neglected the interested person will be bound to the same extent as if he had in fact examined the record. But the rule is no broader than its basis', and if for any-reason no obligation exists to consult the record, or if the interested person be circumvented from taking advantage of his opportunity, the rule does not obtain.” (82 Kan. -448.)
It is insisted that a fiduciary relation existed between the parties and therefore the statute would not begin to run until after the actual discovery of the alleged fraud; that by reason of the relation of trust and confidence the plaintiffs were not required to examine the records to discover what had been done. The agreement which the plaintiffs relied upon was that the appellants were to manage the property for the plaintiffs’ benefit. The jury found in answer to several special questions that the appellants were the agents of the plaintiffs in all that they did in connection with the estate and the sale of the land, but we have not been cited to any witnesses who so testified. If they were agents of the plaintiffs it was because of the cir’•cumstances under which they took possession of the property. The plaintiffs offered no evidence in -support of the allegation that prior to his death Nils Nyberg requested or obtained a promise from the appellants to take care of his wife and child or to look after his estate. Both appellants denied that any such conversation took place. Nor did plaintiff Marie testify that the appellants agreed to take the property and look after it for the benefit of the plaintiffs. The appellants denied this, and testified that after the death of Marie’s husband she told them to take the land and do the best they could with it in order to save themselves."
It appears from the testimony of John P. Grant, the administrator, and H. Helstrom, who was appointed guardian of the minor in the proceedings to sell the real estate, that all the parties that had any thing to do with the land were Swedes who spoke the English language brokenlythat the appellants were ■poor and had mortgages on their own farms, and were apprehensive that they would lose by being sureties ■of Nyberg; that times were hard, and that land in the same neighborhood of about the same value sold in 1882 and 1883 for less than this brought at the administrator’s sale. The testimony convinces us that the land was not appráised for less than it was worth, and that neither of the appellants wanted it or wished to speculate upon it. They took it for the purpose of protecting themselves. They held a third mortgage, and there was nothing in the relations existing between the parties which made it improper for the appellants to purchase at the administrator’s sale. They bought the land for $531.58, subject to prior mortgages, and agreed to pay all the debts of the estate, which they did. Much is made of the circumstance that they did not in fact pay some of the notes they took credit for until long afterward, when they sold the place in 1884. It appears that as substitutes for the ‘notes signed by the Nybergs and themselves they gave new notes of their own, which they afterward paid-when the land was sold to Akeson’s son, or when he had paid for it. It is not suggested how this defrauded anyone or why it may not have been done in the best •of faith, except that it is claimed that one of these 'notes was in fact paid out of proceeds received from the sale of the crops. The appellants are old men, one of 'them seventy-four, and it is not surprising that they 'were unable to explain clearly all the transactions after a laspe' of so many years. This question of fraud was determined adversely to the plaintiffs when the district court on appeal reached the same conclusion as the 'probate court and discharged the administrator, after ••approving his first as a final account.
This appears to be the kind of a case to which the statute of limitations was made to apply. Twenty-five years before the action was brought the administrator-filed a full accounting of all his acts, in which he took credit for the payment through the appellants of three-notes, which were debts of the estate- and upon which the appellants were sureties. He filed vouchers for these claims which it is now insisted were false and fraudulent. It is true, there had been no final accounting, and he was not discharged; but an examination of' the probate records would have disclosed the allowance of these claims, and all the proceedings resulting in the-sale of the land to the appellants. It is not seriously claimed that plaintiff Marie continued during all these years in ignorance of the English language and of her possible rights and claims. It appears from her own admission that she knew of the sale of the land by the-appellants when it was made. She went with her mother to where Olson was working in the field, told him that she had heard that he sold the land for $4000, and asked if he could not pay her part of the $500 which her husband had paid on the $600 note before his death. Olson told her in reply that they had not received all the money for the land and he did not know that there would be anything left after paying-the debts, but if there was he would pay her $100. Moreover, the young man who purchased the land from the appellants in 1884 was married to Marie’s sister, and they continued to own the land until 1893, when they lost it by foreclosure proceedings. During this, time she knew that the appellants had nothing more to do with the land and that her sister and the latter’s husband claimed to own it.
The son testified, in substance, that when he was eighteen years old he first learned from his mother that the land had once belonged to his father, and he took .the deed found among some old papers with the intention of having inquiries made about their rights -in the-land. He waited until he was twenty-seven years of’ age before he brought the action. During all this time- he lived in McPherson county, and there is no pretense that he continued in ignorance of the English language or that he was under any disability after he arrived at majority which prevented him from making an examination of the records and from discovering all that he claims to have discovered in 1907.
A careful examination of the record fails in our opinion to disclose fraud or bad faith on the part of the appellants. The jury have found otherwise, but the case should not have been submitted to a jury, for the reason that the plaintiffs have slept too long upon their rights to maintain the action.
The judgment is reversed and the cause remanded, with direction to enter judgment for the appellants. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover $200 deposited as a forfeit on an agreement to buy land. On December 8, 1906, B. D. Allen agreed to sell twenty-five acres of land to Ray Hull for $8000, $200 to be paid in cash and the balance of the consideration to be paid when conveyance was made and an abstract showing good title was furnished, which was to be sent to Hull, at Burnside, 111., where he resided. It was stipulated that the $200 which was paid -to Allen was to be forfeited if Hull failed to carry out the contract and pay the balance of the consideration, but that if Allen failed to furnish a warranty deed and an abstract showing good title to the land, in accordance with the agreement, the $200 was to be returned to Hull. The abstract was not sent to Hull at Burnside, 111., and he therefore claimed a recovery, of the 200-dollar deposit. Allen, on the other hand, claimed that Hull induced him to withhold the abstract, and that as Hull refused to carry out the agreement and pay for the land the $200 had been forfeited.
The testimony on which a verdict was based is that the day following the execution of the agreement Hull directed Allen not to send the abstract and the papers to Illinois until his father and mother, who were to furnish the money, came from Illinois and inspected the land, and that they were expected in about two weeks. It appears that they did come and look at the land, but according to Allen’s testimony they did not sanction the purchase made by Ray Hull, and he afterward notified Allen that he would not take or pay for the land and that Allen need not send the papers to Illinois. There was conflicting testimony on some of these matters, but the conflict was settled in favor of Allen by the verdict of the jury. Hull appeals, and insists that the testimony relating to the inspection of the land by his father and as to the latter’s advice and nonapproval of the purchase, as well as his (appellant’s) instructions not to send the abstract, amounted to an alteration of the contract, and that, as it was one relating to real estate, the evidence was not competent. This claim is without merit. The testimony did not vary the written contract, but only related to its performance. The appellant in effect says: “You did not perform your agreement as to furnishing an abstract, and therefore you must return the $200 I have paid you.” The appellee responds: “You waived performance of that condition by directing that the abstract be not furnished, and hence I am not in default.” The contract is not varied by his actions, but performance of that condition of the contract is excused. The furnishing of an abstract or other like condition may be waived; and when waived, as in this case, the appellant could only put appellee in default by a performance or offer of performance on his own part. He can not induce appellee to desist from action, and then treat the inaction as a default and a basis of recovery. (McAlpine v. Reicheneker, 56 Kan. 100; Morrison v. Terrell, 27 Kan. 326; Soper v. Gabe, 55 Kan. 646; Painter v. Fletcher, 81 Kan. 195; Poheim v. Meyers, 9 Cal. App. 31.)
It was stipulated in the contract that if appellant failed to pay the balance of the consideration he would forfeit the $200 which he had advanced. He is now seeking to abandon the contract, and reclaim the money put up as a forfeit, when he is himself in default, whereas a right to rescind and reclaim only vests in an innocent party. (24 A. & E. Encycl. of L. 647.) The fact that he waived the furnishing of the abstract did not destroy the contract nor relieve him from the obligation which he had assumed under it. The appellant can not recover money paid under the contract if appellee was not at fault, and as appellant excused or waived the condition precedent incumbent on appellee the latter was not actually in default. It was appellant’s fault that the contract was not carried out, and hence the $200 can not. be recovered.
There is a further contention that appellant was not allowed to show the contents of letters said to, have been written by himself and counsel, although he offered to prove a notice to produce the letters and noncompliance with the demand. • It does not appear that appellant took the steps prescribed by section 365 of the code to obtain an inspection or the production of the papers. (Railway Co. v. Burks, 78 Kan. 515; The State v. Hinkley, 81 Kan. 838, 846.) Nor did he'avail himself of the opportunity afforded of requiring the appellee to appear as a witness and bring with him the letters in question. (Civ. Code, § 323.) Nor yet did he show that the letters themselves were lost or destroyed, or inaccessible, and therefore parol proof of their contents was not admissible.
There is criticism of the instructions, but we find no prejudicial error in them. The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
A statement of the facts appears in the former opinion (Mayse v. Belt, 83 Kan. 746). In a petition for a rehearing it is urged that the-interpretation there given section 4 of chapter 373 of the Laws of 1907 (Gen. Stat. 1909, §7695), limiting the time within which actions may be brought to enforce the rights of school-land purchasers, is inconsistent with the decision in the case of Davis v. Nation, 82 Kan. 410, and it is further urged that the appellant ought not to recover because he has no title.
In the case of Davis v. Nation the principal question was whether the statute referred to is constitutional. The syllabus of the decision is limited to that subject, and because of its overshadowing importance a full statement of all the facts of the controversy was not embodied in the opinion. Had this been done, it would have been disclosed that the land involved had been sold to new purchasers, after attempted forfeitures, and that patents had been issued to such purchasers. Therefore there is no inconsistency between the two decisions.
With respect to the appellant’s title, it may be observed that the state had the right, if it saw fit, to treat the forfeiture as an effectual termination of the rights of the certificate holder and as a restoration of the land to the public domain. But it did not do so. It chose to waive the forfeiture, to treat the certificate of purchase as still in force, and to allow the appellant, as assignee by virtue of the tax proceedings, to perform the obligation of the certificate. When he had done that he became entitled to a patent. At the time the appellant perfected his right to the land the claim of the appellee had not attached. The whole matter was one between the appellant and the state, and the decision in the case of Baker v. Newland, 25 Kan. 25, is controlling. In the opinion delivered in that case it was said:
“It is generally true that one in whose favor a forfeiture exists may waive it. The state was the party entitled to the benefit of this forfeiture. No one else could claim its benefits. If, notwithstanding, it-receives full , payment of the purchase price and gives a patent, it does not lie in the power of any individual to question that title.' Doubtless many instances will be found in the history of this state in which purchasers of school lands have failed to make their payments on the very day. Technically and strictly, such failure worked a forfeiture. But if, notwithstanding, thereafter such- purchasers completed their payments and received patents, we suppose that their title is safe; certainly as against anyone but the state, and probably as against it.” (p. 34.)
It is said that the decision in Baker v. Newland ought not to apply, because the forfeiture statute then in force did not require action on the part of the county officials, but was self-executing. It would seem, however, that the state might waive forfeiture proceedings depending on the conduct of fallible individuals much more readily than statutory forfeitures. It is conceded, as of course it must be, that the ministerial act of issuing the patent was not important. The cases of Reitler v. Harris, 80 Kan. 148, and Broadie v. Carson, 81 Kan. 467, are not pertinent, because in each the second purchaser’s interest attached before the right to a patent accrued.
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Per Curiam:
As stated in the opinion rendered on the former appeal, there was no reference in the petition to any failure on the part of the company to light the depot platform. (Railroad Co. v. Elrod, 78 Kan. 868.) If negligence in that respect had been imperfectly or even inferentially charged, the court would have treated the petition as amended to conform to the proof and would not have reversed the first judgment. In all the cases relied upon by the appellee there was something in the pleading to amend by. Here there was nothing of that kind, and a new ground of liability could not be introduced and asserted after the statute of limitations had run against it.
It is not necessary now, as it was not on the former appeal, to consider errors relating to other subjects. A trial based upon the petition must first occur.
The judgment of the district court is reversed, with direction to strike the amendment from the petition. | [
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The opinion of the court was delivered by
Mason, J.:
Charles W. Henderson brought action against the United States Gypsum Company and J. E. Drake on account of an injury he had received by the falling of a roof in a gypsum mine. A demurrer to his evidence was sustained, and he appeals. The evidence, so far as it .affects the correctness of this ruling, was substantially to this effect: The plaintiff was employed as “an outside switchman and repair man”; his duties were to switch the cars as they came from the mine, and' assist in unloading rock at the mill, or keep the cars emptied, and do repair work at the blacksmith shop. He had worked in and about ’mines for twelve years, largely in gypsum mines, mining gypsum. For about ten years he had worked in the gypsum mines of that locality, and was familiar with the rock strata and methods of work. Tunnels were driven through the rock, on each side of which excavations were made forming separate rooms. The miners in blasting fired shots at irregular intervals, each using his own discretion. The vibration caused by the shots anywhere in the mine tended to weaken the support of the roof — to shake the roof from its hold on the upper strata of rock. There was always danger in the mine,- principally from the falling of the roof or from shots breaking through the walls. On the day of the accident a miner named Beasley asked Henderson to come and look at the roof of the room in which he (Beasley) was at work mining. Henderson did so, and discovered that from the farther end of the room to about the middle the roof was loose, while the other portion was solid. His test was made by the usual method of tapping the roof with a sledge hammer, the sound enabling him to tell its condition as to being safe or otherwise. He then went to the superintendent and reported the condition he had found. The superintendent directed him to see if Beasley would take down the loose part of the roof, adding: “If he won’t take it down, I guess you will have to, for I need the rock from that room.” Henderson returned to the room, having been away about an hour. Beasley refused to take the roof down, and Henderson undertook the task. Standing with one foot upon a car which was under the portion of the roof which he had found to be safe, and with the other upon a lump of gypsum, he started a steel wedge at the edge of the insecure part and began driving it with a sledge. He had struck about a dozen blows when the entire roof of the room fell and he received the injury upon which his action.was based. Between the time he left the room and his return to it a shot had been exploded in an adjoining room, and the contention of the plaintiff is that this had loosened the part of the roof that his previous test had shown to be sound. The defendants are alleged to have been negligent in failing to provide the plaintiff a safe place in which to work, in’ rendering unsafe the place in which he was directed to work, and in permitting the shot to be fired by which the roof was loosened, without advising him of it.
We think the district court decided correctly. Notwithstanding the plaintiff’s original employment did not contemplate the services he performed in testing the roof and attempting to remove the unsafe portion, the evidence shows that in responding to the request of Beasley to examine the roof of the room in which the accident occurred, in reporting the condition he found, and in acting upon the superintendent’s direction that he should take down the insecure roof if Beasley was unwilling to undertake it, he voluntarily assumed for the time being what were in effect the duties of an- inspector. If he had been taken from his regular work and placed at a task with which he was unfamiliar an entirely different situation would be presented. He was shown to be a miner of long experience, fully competent to decide when a roof was unsafe, and to apply the remedy. The ordinary rule as to the employer’s obligation with respect to furnishing a safe place in which to work does not apply when the employee is engaged in making a dangerous place safe (25 L. R. A., n. s., 321, note), and that was the character of the occupation in the course of which the plaintiff was injured. The negligence relied on in respect to the shot discharged during the plaintiff’s absence is the defendants’ failure to advise the plaintiff of its having been fired, or to provide a general method by which he would have been advised of it. The superintendent is not shown to have had knowledge of the firing of this particular shot, but he of course knew that one might be fired while the plaintiff was with him. But the plaintiff as well must have known of this possibility, and our conclusion is that he himself, in view of his experience and the work he had undertaken, must be deemed to have been negligent in not again testing the roof under which he stood before beginning the operation of dislodging the part which he had previously found to be loose. This view precludes his recovery, even if there was evidence sufficient to sustain a finding of negligence on the part of the defendant.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
West, J.:
The appellant was charged in thirteen counts of an information with the sale of intoxicating liquor and in the fourteenth with maintaining a nuisance. Seven counts were eliminated by dismissal, leaving six for selling and one for maintaining a nuisance. After the jury had been out some time, but during the day on which the trial began, they reported an agree ment on the fourteenth and a disagreement as to the other counts, and the court announced that it would receive such a verdict, to which the defendant objected. No finding was made by the court as to the disagreement, but the verdict stated-that the jury did not agree on the fifth, sixth, seventh, eighth, ninth, and tenth counts. A motion for a new trial was denied, and sentence pronounced under the fourteenth count.
The appellant urges that the announcement by the court that such a verdict would be received amounted to a suggestion to the jury that a record thereof be made in the verdict, thus making possible a. future prosecution. As no question of former jeopardy or acquittal arises here, it is not necessary to discuss what effect the verdict and discharge of the jury may have upon a further prosecution, should such be attempted, but see The State v. Allen, 59 Kan. 758, and The State v. Klauer, 70 Kan. 384. There was no error in thus receiving the verdict.
The serious contention is that chapter 164 of the Laws of 1909 is void, because in conflict with the prohibitory amendment; that the sections of the act relating to sales- are void for this reason, and, being inseparably connected with the nuisance section, their frailty attaches to that also. It is argued that the constitutional prohibition of -the “manufacture and sale of intoxicating liquors . ... except for medical, scientific and mechanical purposes” (Const, art. 15, § 10), is equivalent to a mandate directing the legislature not to interfere with such manufacture and sale for the three excepted purposes. But we regard the amendment as a prohibition upon personal conduct, not upon legislative action, further than upon any attempt to legalize sales for beverage purposes. Without the amendment the legislature would have power to prohibit the manufacture and sale of intoxicating liquors (Hang v. Gillett, 14 Kan. 140; Kidd v. Pearson, 128 U. S. 1; Farmville v. Walker, 101 Va. 323; Hart v. State, 87 Miss. 171; City of New Orleans v. Smythe, 116 La. 685; Cook v. Marshall County, 119 Iowa, 384), and certainly the amendment has not diminished such power unless, as counsel suggest, it means that “the manufacture and sale of intoxicating liquors shall be forever prohibited in this state, but that this restriction shall not apply to liquors used for medicinal, scientific and mechanical purposes.” We are unable to construe the language of the amendment as a grant of power, for without if the legislature might have provided a license system or might have suppressed the traffic. Our attention is called to the language of Mr.' Justice Brewer in the Prohibitory-Amendment Cases, 24 Kan. 700, that “license has limitations, restraints and penalties” (p. 723) ; but he was there giving the minority and not the controlling view of the court, and in the preceding paragraph the majority opinion was stated — tha.t “the amendment has simply enlarged and increased these restrictions. It permits the sale for certain purposes. It thus, without abrogating penalties, simply puts additional limitations upon the sale. Before the amendment, and under the dram-shop act, the licensed dealer might sell to adults not habitual drunkards, upon secular days not devoted to special purposes. Under the amendment, such licensed dealer may still sell, but only for certain purposes. The right to sell remains. The conditions of license continue. The only change is in the limitations upon the purposes for which the sale may be made. My associates think this the sounder argument and the true construction.” (p. 723.)
In In re Holcomb, Petitioner, &c., 21 Kan. 628, the question arose whether an act attaching territory as yet not divided into counties to an adjoining district, for judicial purposes, was within the general powers granted to the legislature or in conflict with any constitutional provision. Section 14 of article 3 of the constitution provides that “judicial districts . . . shall be formed of compact territory and bounded by county lines.” The act attached undivided territory to the county of Ford for judicial purposes, and it was argued that this was in violation of this section of the constitution, but the court said:
“It is true the constitution nowhere in terms authorizes the attaching of such territory, but it is also true that it nowhere, directly or indirectly, prohibits such attaching; and, if there be no prohibition directly or by implication, then the act is within the general grant of legislative power.” (p. 634.)
In Prouty v. Stover, Lieut. Governor, 11 Kan. 235, it was said that “to declare a law void as conflicting with an express provision of the constitution, the conflict must be clear. So say all the authorities. None the less clear must the conflict be when it is conceded that no express provision has been violated, and only claimed that some negation must be implied from the afflrmative language of the constitution which is irreconcilable with the law.” (p. 256.) Also, that “all legislative power is vested in the legislature. Prescribing the rules, manner and requisites of elections is a legislative act. There is no express constitutional inhibition. Implied inhibitions are, it is true, equally potent; but their existence must be equally evident.” (p. 255.)
In Ratcliff v. Stockyards Co., 74 Kan. 1, the true rule as to legislative power in this state was announced: “The legislature represents the people of the state, and there are no limits upon the power which that body may exercise, except such as may be found in the constitution itself, or in the federal constitution.” (p. 16.)
Counsel call attention to Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, where, in speaking of the provision of section 16 of the bill of rights that “no person shall be imprisoned for debt, except in cases of fraud,” it was said that this limits the power of the legislature and no act of that body can be sustained which conflicts therewith. This is doubtless true, but it would not do to say that this declaration compels the legislature to imprison for debt in case of fraud, or that the exception of cases of fraud amounts to a command thus to imprison. Here is found an express prohibition upon imprisonment for debt except in one case, but doubtless in the excepted case the legislature is still free to imprison or not, as it may deem proper.
But this question is settled by the decision in The State v. Durein, 70 Kan. 13, where the constitutionality of the statute in question was thoroughly considered. That case was affirmed by the supreme court of the United States. (Fritz Durein v. Kansas, 208 U. S. 613.) Judge Pollock, of this federal district, recently had the question under consideration in Harrison v. Taggart (1910), and held that it is no longer open for decision in view of the Durein case.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The only matter to be decided is whether the east half of the southeast quarter of section 20, in township 7 south, of range 39 west, in Sherman county, was conveyed by the following tax deed:
“Know all men by these presents :
“That whereas each of the following-described parcels, tracts and lots of land, viz.: Number 1, the east half (E. 1/2) of the southeast quarter (SE %) of section twenty (20) ; number 2, the south half (S %) of the southwest quarter (SW Yi,) of section twenty-four; all in township seven (7) south, of range thirty- nine (39) west of the sixth principal meridian, containing 160 acres more or less, according to the government survey, 'situated in the county of Sherman and state of Kansas, was, severally, subject to taxation for the year A. D. 1895; and whereas the taxes assessed upon each of said several parcels, tracts and lots of' real property, respectively,, for the year aforesaid, remained due and unpaid at the date of the sale hereinafter mentioned; and whereas the treasurer of said county did, on the first day of September, A. D. 1896, by the virtue of the authority in him vested by law, at the first day of the sale begun and publicly held on the-first Tuesday of September, A. D. 1896, expose to pub-lie sale, at the county seat of said county, in substantial conformity with all the requisitions of the statute in such case made and provided, offering separately each of the said several parcels, tracts and lots as, in the regular course of said sale, it was reached in its turn, the real property above described, for the payment of the taxes, interest and costs then due and remaining unpaid upon each of the said parcels, tracts and lots of real property, respectively; and whereas, at the place aforesaid, neither of the said parcels, tracts and lots of property could be sold for the amount of tax and charges thereon, and each of them was, therefore, as they were severally and in due course, as aforesaid, offered for sale, bid off by the county treasurer for said county, for the whole amount of taxes and charges then due and remaining unpaid on each of the said parcels, tracts and lots of said property herein-before described and severally numbered, to wit: On the parcel, tract or lot in said description numbered 1, the sum of seven dollars and twenty-eight cents ($7.28) ; on that numbered 2, seven dollars and twenty-four cents ($7.24) ; and whereas, for the sum of fifty-eight dollars and sixty-five cents for said tract numbered 1, and for forty dollars and twenty-four cents for that numbered 2, and being as to each of said parcels, tracts and lots equal to the cost of redemption thereof at that time, paid to the treasurer of said county on the 5th day of March, A. D. 1902, the said treasurer did give to Frank Johnson of the county of --- and state of -, certificates of that date, as in such case provided by law, for and concerning each of the said parcels, tracts and lots, and the county clerk of said county did, on the same day, duly assign to the purchaser aforesaid the said certificates of sale, and all the interest of said county in said property; and whereas, over three years have elapsed since the •date of said sale, and none of the said property has been redeemed therefrom as provided by law, the said unredeemed real property having been advertised and notices given that it would be conveyed unless redeemed by a certain day named, said advertisement and notice having been made in substantial conformity with all the requisitions of the statute in such case made and provided:
“Now THEREFORE, I, A. D. Rummel, county clerk of the county aforesaid, for and in. consideration of the sum of ninety-nine dollars and twenty-six cents, taxes, • costs and interest due on said land for the year A. D. 1895, 1896, 1897, 1898, 1899 and 1900, to the treasurer paid as aforesaid, and on presentation to me of the certificate of sale, and by virtue of the statute in such case made and provided, have granted, bargained and . sold, and by these presents do grant, bargain and sell unto the said Frank Johnson, his heirs and assigns, all ■of the real property last hereinbefore described, to’ have and to hold, unto him, the said Frank Johnson, his heirs and assigns, forever; subject, however, to all rights of redemption provided by law.”
It is argued, upon the authority of Spicer v. Howe, 38 Kan. 465, that the expression “the real property last hereinbefore described” (p. 468) appearing in the granting clause of this deed applies only to the south half of the' southwest quarter of section 24, designated in the premises of the deed as tract No. 2.
The deed involved in the case of Spicer v. Howe was a peculiar one. The preliminary recitals included descriptions of twenty-eight distinct parcels of land. All these parcels had not been subject to common treatment in the course of the tax proceedings, which the deed was obliged to recite. The certificates of sale for some tracts had been assigned to the purchaser of others. Subsequent taxes had been paid on some tracts for certain years and on other tracts for other years. Consequently it was necessary to individualize some of them. One tract was thus singled out and twice specifically described just before the statement that there had been no redemption. In the succeeding granting portion of the deed this tract alone was again described, and the description was immediately followed by a grant of “the real property last hereinbefore described.” The court held that there was no ambiguity in the language of the grant. The operative words being immediately preceded by the definite description of a distinct tract, wholly separate and apart from all others mentioned in the deed, there was no room for interpretation and the grant was limited to the tract last described.
Soon after this decision was rendered the court was afforded an opportunity to call attention to the very narrow scope of its application. The record in the case of Cartwright v. Korman, 45 Kan. 515, shows that the deed there under consideration opens with the recital that “the following described real property, viz., lots Nos. 24, 28, 30 and the south y% of lot No. 22 on Harrison street, in the city of Topeka,” were subject to taxation. The offer of the purchaser was “to pay the several sums of money, dollars and cents, respectively placed opposite each respective tract as follows : Lot 24 on Harrison street, in said city of Topeka, $3.26; lot 28 on Harrison street, in said city of Topeka, $3.17; lot 30 on Harrison street, in said city of Topeka, $3.41; the south ¥¿ of lot 22 on Harrison street, in said city of Topeka, $1.68.” After that the deed throughout refers to “said property” and “said land” until “the real property last hereinbefore described” is granted. It was claimed that, according to Spicer v. Howe, 38 Kan. 465, the grant included the south half of lot 22 only. The court said:
“We do not think the present case is ruled by the one cited. In that case there was in the granting clause a single and independent tract of land which was specifically described, wholly apart from any other description, and it was held that the property ‘last hereinbefore described’ referred alone to that description. In the present case all four of the lots are described together, and in the'subsequent recitals of the deed all four lots are referred to as ‘said property’ and ‘said land.’ As they were all sold to a single person, and as they stand described together in the deed, and as all are afterward spoken of together as ‘said property’ in the recitals relating to assignment and redemption, we think the phrase in the granting clause, ‘the real property last hereinbefore described,’ fairly includes all of them, and the deed effectually conveys all.” (45 Kan. 519.)
In view of this decision it can not be doubted that two conditions must exist before the rule in Spicer v. Howe can be invoked. The last description must be that of a single tract, which is segregated from the others and described wholly apart from them for some independent purpose, and nothing must intervene between this description and the operative words of the grant which will extend the application of those words, beyond that tract.
The opening statement of the deed now in controversy relates to'the fact of land being subject to taxation. Two tracts are described, without any purpose to discriminate between them. For convenience they are numbered 1 and 2, and nowhere else in the deed is a full description of either extended. The succeeding recitals respecting assessed taxes remaining due and unpaid, exposing to sale, the method of offering for sale, inability to sell and bidding off by the county are framed to cover both tracts, without distinction. It was necessary to state the sale prices and the amounts for which the certificates were assigned separately, and this is done by referring to each tract by its number. From this point to the operative words of the granting clause expressions are used which include all the land which had been previously mentioned:
“Did give . . : certificates of that date as in such case provided by law for and concerning each of the said parcels, tracts and lots.”
“Did . . . assign . . . the said certificates of sale and all the interest of said county in said property.”
“None of the said property has been redeemed.”
“Said unredeemed real property having been advertised and notices given that it would be conveyed.”
“For and in consideration of the sum of ninety-nine dollars and twenty-six cents taxes, costs and ■ interest due on said land.”
It is apparent at a glance that there is no similarity between this deed and the one considered in the case of Spicer v. Howe, 38 Kan. 465, and that decision can not be a guide in the solution of the present controversy. In looking backward from the phrase “the real property last hereinbefore described,” to ascertain what real estate, is meant, a number of inclusive references to both tracts are immediately encountered, and when descriptions in the technical sense of the term are reached the two are given cumulatively, the purpose being to keep them separate but not to discriminate between them.
■ In the case of Cartwright v. Korman, 45 Kan. 515, three features of the deed considered were noted as indicating that all the lots described were conveyed. The lots were all sold to one person, they were all described-together, and afterward they were spoken of together as “said property.” All these distinguishing marks appear in the deed' now under examination,, but all of them are not necessary to an interpretation, of the instrument. The first is quite unimportant. The second places the meaning beyond doubt, but the last one amply warrants the conclusion that-all the. land mentioned in the deed was conveyed. In the case, of Gibson v. Shiner, 74 Kan. 728, the rule recognized by the second paragraph of the syllabus is that where-several tracts are included in the same tax deed the phrase in the granting clause “the real property last hereinbefore described” will be interpreted as including all of them, where it follows recitals in which they are collectively referred to as “said property.” This rule was applied in the case of Milburn v. Beaty, 81 Kan. 696.
The narrative part of a tax deed is designed to show that the tax proceedings have culminated to the point of conveyance, and this showing is usually made indifferently for all tracts embraced in the deed. The phrase “the real property last hereinbefore described” was employed in the statutory form for tax deeds to designate the property sold as distinguished from the property exposed to sale, when the successful bid is for a less quantity than the whole tract, and to avoid repeating the description of the property sold. Confusion may sometimes result when numerous tracts of land not subject to uniform proceedings are included in a single deed, but the phrase in question will be considered as pointing to its original object, the property sold, unless language be used which diverts it beyond doubt from the whole to some specific portion of such property. Any doubt that the whole is conveyed is removed by collective references to all the property immediately preceding the grant.
If it were necessary to a decision it could be pointed •out'that the deed in the present case undertakes to convey “all” the real property last described. The word “all” is used in a collective sense, indicating a number of tracts. Taken in connection with the general expressions “said land,” “said.real property” and the like, already adverted to, it performs much the .same office as the words “each and every separate tract ■and parcel,” contained in the deed involved in the case of Gibson v. Kueffer, 69 Kan. 534. If, however, the word “all” were omitted the grant would not be diminished.
It is argued that only tract No. 2 was conveyed because the granting portion of the deed premises the presentation of “the certificate of sale” to the county clerk. The same recital occurs in the deed assailed in the case of Milburn v. Beaty, 81 Kan. 696. No certificate is identified, the language used can not be referred to either tract in preference to the other, and it is otherwise clear beyond doubt that the purpose was to convey both tracts.
The judgment of the district court is affirmed. | [
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Per Curiam:
The appellants concede that the only question in this case is whether the lease of school lands made in April, 1908, under which the appellee held possession, is valid. For the reasons stated in the opinion in Payne v. Barlow, ante, p. 132, it is held that the lease is valid.
The judgment is affirmed. | [
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Per Curiam:
The abstract is insufficient because for the most part conclusions are stated instead of the substance of the evidence. (Brady v. Mining Co., 83 Kan. 808.)
Taking the abstract and counter abstract together and interpreting the evidence in the light most favorable to the plaintiff the court is of the opinion that only one reasonable conclusion can be drawn,, and that is that the relations of the parties remained unchanged after the plaintiff became of age. There is no dispute about the law governing such cases.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In the course of its operations in mining rock salt the Royal Salt Company deposited upon its own land a quantity of refuse salt, which in a few years created a dump containing about 40,000 tons. S. J. Gilmore, the owner of an adjacent tract, claimed that the rain dissolved a part of this salt and by percolation carried it into the soil of his land, injuring the vegetation and imparting a saltish taste to a number of springs. He asked an injunction against the practice. He was denied relief and appeals.
The trial court found in effect that the consequences stated resulted from the maintenance of the dump, but concluded that the plaintiff was not entitled to an injunction, upon the specific ground that the common law is in force in this state and recognizes no correlative rights in percolating waters. The defendant maintains that in support of the general judgment it must be assumed that the court believed that the plaintiff suffered no substantial injury, or, at all events, none for which injunction is an appropriate remedy. We think, however, that the fair inference is that because of the view taken of the proposition stated no other matters were decided.
Frequent expression has been given to the theory that percolating water is to be regarded for all purposes as a part of the containing soil, and that the owner of the land has the absolute right to make whatever use of it he sees fit, without incurring liability to any one thereby injured. As a corollary some courts have held that he is exempt from legal responsibility even if from his act contamination results to the under ground water upon a neighbor’s premises. The decision in the present case appears to be based upon this •view, and while it finds some support in the authorities we feel constrained to hold that whatever may be the rule as to the principal proposition, the application made extends it too far.
The tendency away from the older, or what is called the “English” doctrine, is exhibited in the two series of notes terminating in that to Meeker v. East Orange, 76 N. J. Law, 435, in 25 L. R. A., n. s., 465, and that to Hathorn v. Natural Carbonic Gas Co., 194 N. Y. 326, in 128 Am. St. Rep. 555, 580. In a note in 23 L. R. A., n. s., 331, it is said:
“While the earlier decisions laid down the general rule of absolute right in percolating waters, the great majority of the recent cases have receded from that view, and favor the doctrine of- confining each landowner to a reasonable use of such water.”
In City of Emporia v. Soden, 25 Kan. 588, 608, the ■court said that the strong, if not the principal, reason for the rule that the law takes no cognizance of percolating water is the impossibility of proving with certainty the sources of supply; and that cáse was held to furnish an exception to or limitation on the doctrine.
The present case, however, does not involve the right •of a landowner to injure a neighboring owner by diminishing the supply of subterranean water by either a reasonable or an unreasonable use. It turns upon his right to cause the water under his neighbor’s land to be impregnated with a harmful substance. Most of the courts and text-writers recognize this to be a matter controlled by different considerations, as is shown by these quotations, and the cases cited in their support:
“That the courts are not willing to adhere to the rule that a landowner may make such use as he pleases of his property, regardless of the effect on the subterranean water, is brought into prominent relief when the question of the right to pollute such water is raised. Some of the courts are very willing to assert, that a landowner may maliciously deprive his neighbor of a water supply by pumping or draining it away, but at the same time they assert that he can not effect such deprivation by polluting the source of supply. It could not for a'moment be conceded that there was a right to pollute the water, and the fact that there is no such right shows that the rights with respect to percolating waters are not absolute, but correlative, and that each landowner must, in using his property, see that he does not injure his neighbor. A landowner will not be permitted to collect upon his premises injurious or offensive material in a place where it will be likely to find its way, by the action of precolating water, into his neighbor’s well. This rule applies to refuse from gas works, cesspools, and privy vaults, and manure heaps. An injunction will lie to prevent such injury.” (3 Farnham, Waters and W. Rights, § 945.)
“In some few cases it has been held that as a landowner has the absolute right to appropriate the water percolating under his land, he is not liable for contaminating or polluting such water in the reasonable-use of his own land, though thereby a well or spring-upon the land of a neighboring landowner is polluted or contaminated. Still, since one who collects filthy or offensive matter upon his land is required to prevent its escape therefrom, and is liable in damages to neighboring landowners who are injured by the percolation of such matter through the soil, and since this liability-does not depend upon negligence, but the reasonable precautions which the law requires must be such precautions as will effectually exclude the filth from the-neighbor’s land," it is generally held that a landowner is liable in damages if by the accumulation of filthy or contaminating matter upon his own land he contaminates the waters percolating therein to the injury off a neighboring landowner whose well or spring subsequently receives the percolating waters so contaminated; and injunctions have been granted to prevent such contamination.” (30 A. & E. Encycl. of L. 319.)
“The weight of authority supports the rule that a. person who, by permitting the pollution of his own soil or the water thereunder, contaminates his neighbor’s well or the streams under the neighbor’s land,. from which water is appropriated, is liable to the latter in damages, and in some cases the continuance of such pollution has been restrained by injunction.” (16 A. & E. Ann. Cas. 676, note.)
“There is a manifest distinction between the right of the owner of land to use the underground water upon it that originates from percolation, or is found in hidden veins, and the right to contaminate it so as to injure or destroy the water when passing to the adjoining land of his neighbor. It is a familiar doctrine, that one must so use his property as not to injure his neighbor; and, because the owner has the right to make an appropriation of all the underground water, and thus prevent its use by another, he has no right to poison it, however innocently, or to contaminate it, so that when it reaches his neighbor’s land it is in such condition as to be unfit for use, either by man or beast.” (Kinnaird v. Standard Oil Company, 89 Ky. 468, 474.)
We regard' it as well settled by the weight of authority, and in accordance with sound reason, that one has no right to deposit upon his land refuse matter of any sort, whether in itself offensive or not, by which the water underlying his neighbor’s land may be so affected through percolation as to be unfitted for its ordinary use, or injurious to vegetation. The impregnation of a spring with salt may be a substantial injury. (Collins v. Chartiers V. Gas Co. 139 Pa. St. 111.) It follows that the evidence and the findings tended to show an invasion of the plaintiff’s rights by the defendant. But whether the resulting injury is of such nature, in view of the means available for its prevention, as to require a remedy by injunction, is a matter upon which the trial court does not appear to have passed and could not well have passed after determining that no legal wrong had been committed. No order will therefore be made at this time further than that the case be again tried, applying the principles here announced.
The judgment is reversed and the case is remanded for a new trial. | [
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Briscoe, C.J.:
Patricia McDaniel appeals the denial of motions to modify sentences imposed following her pleas of guilty to possession of cocaine (K.S.A. 65-4127a) and failure to wear a seat belt (K.S.A. 8-2503). We apply a harmless error standard to the State’s breach of the plea agreement at the hearing on the motion to modify and reverse and remand for rehearing on both motions to modify.
The sole issue presented is whether the State’s admitted breach of its agreement to recommend alternative placement at the hearing on the motion to modify the sentence for her first conviction is harmless error in light of McDaniel’s subsequent conviction and the trial court’s imposition of a prison sentence for a second crime committed while she was awaiting sentencing on her first conviction.
In June 1992, McDaniel was charged in case No. 92CR1060 with one count of possession of cocaine. McDaniel entered into a plea agreement and agreed to plead guilty to one count of possession of cocaine in exchange for the State’s agreement to “recommend alternative placement from a minimum sentence, five days in jail, $500 fine or 50 hours community service, and that she complete all treatment as directed.” The State also agreed not to recharge crimes previously dismissed in another case. McDaniel was then released on bond. She failed to appear for sentencing scheduled for February 5, 1993. In April 1993, she was charged with possession of cocaine and failure to wear a seat belt (case No. 93CR779). She entered into a plea agreement in 93CR779 and agreed to plead guilty as charged in exchange for the State’s promise to recommend the minimum sentence. McDaniel was sentenced to 3 to 10 years’ imprisonment in 92CR1060. In 93CR779, she was sentenced to 3 to 10 years’ imprisonment on the cocaine charge and to one month’s imprisonment on the seat belt charge. The sentences were ordered to run concurrent with each other but consecutive to the sentence imposed in 92CR1060.
At a hearing for modification of sentence in 92CR1060, defense counsel argued for alternative placement, but both she and the prosecutor mistakenly believed the plea agreement provided for a recommendation of imprisonment, subject to modification after review of the TCF report. In accordance with this mistaken belief, the prosecutor requested that the trial court follow the TCF recommendation that McDaniel serve an appropriate sentence. The trial court followed the TCF recommendation and denied the motion to modify in 92CR1060, and later denied the motion to modify in 93CR779 without a hearing.
McDaniel contends she is entitled to a rehearing of her motions to modify in both cases because the State violated the plea agreement by failing to continue to recommend alternative placement in 92CR1060 at the hearing on the motion to modify. McDaniel argues the same judge ruled on the motions to modify filed in both 92CR1060 and 93CR779 and was arguably influenced in both rulings by the State’s recommendation that breached the plea agreement in 92CR1060. Although McDaniel did not raise this issue in the trial court, in State v. Crawford, 246 Kan. 231, 234, 787 P.2d 1180 (1990), the court addressed the merits of defendant’s argument that the State breached a plea agreement despite failure to raise the issue before the trial court.
The State concedes that under State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988), it violated the plea agreement, but argues the breach could not have affected the court’s decision to deny modification in 92CR1060. Under K.S.A. 1994 Supp. 21-4608(d), McDaniel’s sentence of imprisonment in 93CR779 had to be served consecutive to the sentence in 92CR1060 because the latter crime was committed while McDaniel was released on bond awaiting sentencing for the first crime. See K.S.A. 22-2804; State v. Sayles, 10 Kan. App. 2d 180, 181, 694 P.2d 918 (1985). According to the State, having imposed imprisonment in 93CR779, the court could not modify the sentence in 92CR1060 by granting probation because the sentence of imprisonment in 93CR779 could not be served consecutive to a period of probation in 92CR1060, citing State v. Dubish, 236 Kan. 848, 696 P.2d 969 (1985).
McDaniel argues the trial court might have modified the sentence in 92CR1060 if the State had complied with the plea agreement by continuing to recommend probation and then might have modified the sentence in 93CR779 by granting probation. We agree with McDaniel that this result would not have been inconsistent with the requirement of 21-4608(d) that the sentences be consecutive. The court could have imposed consecutive sentences for the two crimes but granted probation for both, so that McDaniel would be required to serve consecutive sentences if she violated probation. K.S.A. 1994 Supp. 21-4608(d) requires only that the sentences be consecutive; it does not forbid probation. Probation is granted after imposition of sentence. See K.S.A. 1994 Supp. 21-4602(c); Dubish, 236 Kan. at 851. Probation is not inherently inconsistent with consecutive sentences.
The State also argues its violation of the plea agreement was harmless error. Although the State cites no case that applies a harmless error analysis to the question presented, there is authority to support that conclusion.
In Wills, the defendant pleaded guilty in exchange for a recommendation of concurrent sentences. The plea agreement was silent as to whether the State would be bound by that recommendation at post-sentence hearings. Although the State complied with the agreement at sentencing by recommending concurrent sentences, the trial court imposed consecutive sentences. At the hearing on defendant’s motion to modify the sentence, the State argued against modification based on a negative SRDC report, and the trial court denied modification. The defendant then moved to withdraw his guilty plea, arguing the State had violated his due process rights by failing to comply with the terms of the plea agreement. The trial court denied the motion. On appeal, the court held the State’s promise to recommend concurrent sentences bound the State to make the same recommendation at the hearing on the motion to modify and remanded the case for rehearing of the motion to modify before a different judge, at which the State would be required to comply with the agreement. The court did not permit die defendant to withdraw his guilty plea because the State had honored the plea agreement at the time the defendant pleaded guilty and was sentenced. The court did not address whether violation of the agreement was, or could be, harmless error.
In Santobello v. New York, 404 U.S. 257, 262, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), the Court stated that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” The Court further stated that the prosecution was “not in a good position to argue that its inadvertent breach of the agreement is immaterial.” The Court stated there was no need to decide whether the trial court would have imposed a different sentence if it had known the details of the plea negotiations. The Court noted that the trial judge had stated on the record that he was not influenced by the State’s recommendation, but held: “Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration.” 404 U.S. at 262-63. The state courts were directed to determine whether the defendant was entitled to withdrawal of his plea or merely resentencing before a different judge.
In United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993), the court applied Santobello in rejecting the argument that a sentence recommendation that breached the plea agreement was harmless:
“The interest of justice and standards of good faith in negotiating plea bargains require reversal where a plea bargain is breached. [Citation omitted.] A lesser standard would permit the government to make a plea bargain attractive to a defendant, subsequently violate the agreement and then argue harmless error, thereby defrauding the defendant.”
Similarly, in Tillman v. State, 522 So. 2d 14, 16 (Fla. 1988), a death penalty case, the court applied Santobello in holding that the mere breach of a plea agreement, “no matter how slight, or whether the judge was influenced by it, is grounds for reversal.” See People v. Walker, 54 Cal. 3d 1013, 1 Cal. Rptr. 902, 819 P.2d 861 (1991) (violation of plea agreement not subject to harmless error analysis); Citti v. State, 107 Nev. 89, 807 P.2d 724 (1991) (State is held to “the most meticulous standards of both promise and performance”; violation of terms or spirit of plea agreement requires reversal).
Other courts have applied a harmless error analysis and have held that a sentence recommendation that violated a plea agreement was harmless error when the record showed the sentencing court did not rely on the recommendation. United States v. Foutz, 865 F.2d 617, 622 (4th Cir. 1989); Carter v. Scully, 745 F. Supp. 854, 858 (E.D.N.Y. 1990). See United States v. Brody, 808 F.2d 944, 948 (2d Cir. 1986) (any prejudice from prosecution's failure to keep promise to inform court of defendant’s cooperation with investigation was cured when sentencing court was presented with those facts in motion for reduction of sentence). This approach is inconsistent with Santobello, which suggests that a defendant is entitled to relief even if the trial court was not influenced by the breach.
Other courts have focused not on whether the sentencing court was influenced by the breach, but on whether defendant’s guilty plea was induced by the broken promise. This approach appears more consistent with the holding in Santobello. In State v. Sasak, 178 Ariz. 182, 871 P.2d 729 (1993), the court followed Santobello in holding that a breach of a plea agreement by the State requires reversal only when defendant can show the plea rested “in any significant degree” on the State’s broken promise. The court went on to hold that the defendant “had to prove, by a preponderance, that his guilty plea was induced by die State’s promise to recommend against consecutive terms and not by other considerations.” 178 Ariz. at 186. Because defendant failed to show he would not have pleaded guilty but for the prosecutor’s agreement to recommend concurrent terms, the court held he was not entitled to relief.
In Brody, 808 F.2d at 948, the court held that every breach does not automatically require resentencing. Resentencing is required only when the violation goes to the very essence of the plea agreement. The court also noted that resentencing may be required even when the sentencing court was not influenced by the State’s recommendation of a harsh sentence in violation of a plea agreement. In Brody, the court did not order resentencing, but found instead that any possible prejudice was cured by the prosecution’s subsequent performance of its part of the plea agreement by belatedly informing the court of information favorable to Brody.
Neither Santobello nor Wills requires the withdrawal of a plea or resentencing for every breach by the State of its part of the agreement. The Court’s reference in Santobello to a plea resting “in any significant degree” upon a promise or agreement of the State indicates the Court intended the application of a less rigid standard. Because breach of a plea agreement by the State denies the defendant due process, the harmless error standard for constitutional error applies, and the breach can be harmless only if this court can conclude beyond a reasonable doubt that there is little, if any, likelihood that it could have changed the result. See State v. Rupert, 247 Kan. 512, 516, 802 P.2d 511 (1990). The State’s breach can be harmless only if this court can conclude beyond a reasonable doubt that McDaniel would not have pleaded guilty but for the State’s agreement to recommend alternative placement.
To fulfill its part of the agreement, the State agreed to do little else beyond recommend alternative placement as detailed in the agreement. Clearly, McDaniel’s plea rested in a “significant degree” on the State’s promise to recommend alternative placement. Under Wills, 244 Kan. at 69-70, the State’s agreement to recommend alternative placement continued through post-sentence hearings. We cannot conclude the State’s failure to comply with this promise at the motion to modify was harmless error.
We apply the same remedy applied in Wills in redressing the State’s failure to continue to abide by its agreement at the hearing on the motion to modify. We reverse the denial of the motions to modify filed in case No, 92CR1060 and case No. 93CR779 and remand for rehearing before a different judge with directions that the State comply with its agreement to recommend alternative placement.
Denial of the motions to modify in both cases is reversed, and the cases are remanded for further proceedings. | [
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Larson, J.:
Kelly M. Duff appeals from the finding of the Saline County District Court that he is not eligible for retrospective application of the sentencing guidelines after a K.S.A. 1993 Supp. 21-4724(d) hearing.
This is a companion case to Duff v. Stotts (No. 71,454, this day-decided). The legal issues raised in the companion case have no bearing on this appeal.
This case is complicated because it is an early guidelines case involving subsequent offenses without direct statutoiy direction. A brief factual background will be helpful in resolving the issues raised.
Duff was first convicted on June 6, 1988, in case No. 88CR576 in Saline County District Court of unlawful use of a financial card and felony theft. He was sentenced to a one- to five-year term on each count, to be served concurrently. He was incarcerated from December 7, 1988, until November 10, 1992, when he was paroled.
On April 14, 1993, Duff pled guilty to one count of felony theft, a class E felony; one count of flee and elude, a class B misdemeanor; and one count of reckless driving, an unclassified misdemeanor. Duff was sentenced on May 24, 1993, to one to five years for the felony theft, six months for the flee and elude, and 30 days for the reckless driving. The sentences were ordered to run concurrently with each other but consecutive to the 1988 sentences.
On August 13, 1993, the Department of Corrections (DOC) issued a sentencing guidelines report showing conversion of the 1988 and 1993 sentences to consecutive sentences totalling 15 months. It is not clear how the DOC determined a “sentence begins date” of April 19, 1992, but the report concluded that, after considering good time credit, Duff was eligible for release on April 19, 1993.
On September 10, 1993, the State moved for a hearing, objecting to the DOC guidelines report. This request was mishandled by the DOC, which released Duff to post-release supervision on September 20, 1993.
After a hearing, the trial court order was filed October 26, 1993, finding (1) the 1993 sentence should not begin to run until the date of sentencing, (2) because Duff was on parole at the time of his 1993 offense he was not entitled to the presumption of probation and was required to serve his 1993 sentence, and (3) Duff was not entitled to retrospective application of the sentencing guidelines because he had committed a new felony while on parole. When informed that the DOC had erroneously released Duff, the trial court directed the Saline County attorney to cause a notice to appear to issue to Duff to require him to appear and show cause why he should not be remanded to the DOC’s custody to serve the balance of the sentence previously imposed.
On November 2, 1993, the DOC took Duff back into custody and returned him to Norton County. This gave rise to the writ of habeas corpus described in the companion case.
On November 18, 1993, the trial court issued a nunc pro tunc order granting Duff credit for the time spent in custody between January 19, 1993, and sentencing on May 24, 1993, but not changing any other portions of the previous order.
On November 30, 1993, the Saline County trial court received a letter from the DOC requesting clarification of the nunc pro tunc order, informing the court Duff was imprisoned in Norton, and stating he would remain in custody until the end of his sentence under the pre-July 1, 1993, law rather than attend a further hearing. The trial court responded by a letter stating, “I believe the Department of Corrections is correct in its interpretation of the status of Mr. Duff.”
Duff appeals.
Duff contends the sentencing guidelines were erroneously interpreted, resulting in an improper sentence. In the alternative, he argues that if the guidelines do not apply, a motion to modify was erroneously not ruled upon.
An argument can be made that the trial court’s direction that Duff be issued a notice to appear and show cause why he should not be remanded to custody makes this appeal interlocutory. While we have the duty to question jurisdiction on our own motion, Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 373, 789 P.2d 211 (1990), the facts here, and from the companion case, show Duff was returned to custody and the trial court indicated its direction for a show cause hearing should be ignored. It would be futile to remand for action which has already taken place. Judicial economy requires that we reach and decide the issues presented.
We must remember this was an early guidelines case where retroactivity was rejected in part because the DOC’s interpretation was felt to be contrary to common sense. Taken to its logical conclusion, the DOC’s conversion of Duff’s sentences would result in him serving the complete sentence for his 1993 offenses before the trial court had pronounced the sentences thereon. Faced with such an “absurd” result, the trial court held retro-activity should not be applied.
The Kansas Supreme Court has now held in State v. Gonzales, 255 Kan. 243, Syl. ¶ 1, 874 P.2d 612 (1994), that the application of the sentencing guidelines retroactivity provisions is mandatory. Gonzales construes K.S.A. 1993 Supp. 21-4724 (b)(1), which states:
“Except as provided in subsection (d), persons who committed crimes which would be classified in a presumptive nonimprisonment grid block on either sentencing grid . . . pursuant to the provisions of subsection (c) of K.S.A. 1993 Supp. 21-4705 and amendments thereto, if sentenced pursuant to the Kansas sentencing guidelines act, and were sentenced prior to July 1, 1993, shall have their sentences modified according to the provisions specified in the Kansas sentencing guidelines act.”
Because retroactivity under Gonzales, 255 Kan. 243, Syl. ¶ 5, is deemed mandatory, the only question in this case is whether Duff “committed crimes which would be classified in a presumptive nonimprisonment grid block on either sentencing grid.” See K.S.A. 1993 Supp. 21-4724(b)(l).
Our Supreme Court recently stated in Gonzales:
“The legislative intent in adopting the retroactivity provisions of the Sentencing Guidelines Act was to make conversion mandatory. The provisions in K.S.A. 1993 Supp. 21-4724(d) require the trial court to settle any disputes concerning criminal history and to impose a sentence within the correct grid box just as if the trial judge were imposing an original sentence under the guidelines. The trial judge may consider any information available as of the original sentencing date that he or she could have considered in imposing an original sentence under the guidelines. . . . Any departure must be consistent with the departure provisions of the guidelines, and a parole or probation violation after the original sentencing date may not be considered in converting the sentence. Any departure must be justified by the trial court by written findings and an order as required by the guidelines.” Gonzales, 255 Kan. 243, Syl. ¶ 5.
Duff’s 1988 crimes would be classified in presumptive non-imprisonment grid blocks. The 1988 convictions were for two severity level 9, nonperson felonies. He had no criminal history and would therefore be subject to a presumed six-month nonprison sentence for each conviction.
Duff’s 1993 crimes would also be classified as presumptive non-imprisonment offenses. The 1993 conviction was for a severity level 9, nonperson felony. Although he was convicted of other offenses, those offenses were less severe so the level 9 felony would be the base sentence. At the time of his 1993 conviction, Duff had a criminal history of two nonperson felonies — the 1988 convictions. The trial court correctly ruled that the alleged Arizona violations were not properly proved and that ruling is not being appealed. The severity level 9, nonperson felony of the 1993 conviction coupled with the criminal history carries a presumptive nonprison sentence of nine months.
Because all of Duff’s convictions fall within presumptive non-imprisonment grid blocks, retroactivity is mandatory. The trial court’s order that retroactivity was not appropriate because the 1993 offenses were committed while on parole is erroneous. Eligibility for retroactivity is based upon tire classification of the offense in the grid blocks only, K.S.A. 1993 Supp. 21-4724(d), and not on the actual disposition made at the time of sentencing or other possible dispositions permitted by the sentencing guidelines act. See Gonzales, 255 Kan. at 250 (retroactivity mandatory even though court determined Gonzales should not be placed on presumptive probation; no excuse to refuse to convert); see generally K.S.A. 1993 Supp. 21-4603e (permitting, but not mandating, imprisonment for presumptive nonimprisonment offenses committed while on parole if parole is revoked).
An order of reversal and remand to apply retroactivity is required. However, this raises the larger question of how converted sentences for multiple convictions are aggregated. Because this issue has been briefed and will affect the trial court’s determination on remand, we will consider this controversy.
The trial court is required to determine the appropriate guidelines conforming sentences for both the 1988 and 1993 convictions, considering all the factors the court could have considered if the guidelines had been in effect when the original sentences were imposed. The issues are (1) whether Duff’s total converted sentence is measured by adding the 1988 converted sentence to the 1993 converted sentence since the 1993 sentence was originally imposed as consecutive to the 1988 sentence and (2) if so, whether this combined sentence should be measured from the imposition of the 1988 sentence. If this is the proper calculation, as Duff claims, the practical technical effect is that Duff began serving his 1993 sentence before he committed his 1993 crime and would have served his 1993 sentence completely before the sentence was pronounced. Duff argues this result, although difficult to comprehend, is not inconsistent with the legislature’s purpose of relieving our prison system of the burdens of nonviolent offenders. Duff relies on the following wording from Gonzales-.
“As we view the Act, the legislature had several things in mind. First and foremost, the legislature was faced with an overcrowded prison system and had a choice of budding and maintaining additional prison facilities at a time when the State was and is financially hard-pressed to maintain its existing prison system or of devising a method of reducing the inmate population. The legislature very clearly opted to reduce the prison population and devised a method to incarcerate serious offenders and to handle less dangerous offenders by nonprison sanctions or by imposing shorter sentences.” 255 Kan. at 249.
Even though the construction proposed by Duff might be consistent with the goal of reducing the overcrowding in the prisons, judicial interpretations must be reasonable and sensible to effectuate legislative design and the true intent of the legislature. State v. Schlein, 253 Kan. 205, Syl. ¶ 2, 854 P.2d 296 (1993). In construing the sentencing guidelines act, the Kansas Supreme Court further held in Gonzales:
“In determining legislative intent, courts are not limited to a mere consideration of the language used but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.” 255 Kan. 243, Syl. ¶ 3.
Under the construction suggested by Duff, a criminal incarcerated or paroled in the first half of 1993 could have determined the excess time he or she had served under the old sentencing system, committed a crime with a punishment under the guidelines less than the excess time he or she had served, and known there would be no punishment. As the trial court noted, such a construction is absurd and inconsistent with the purpose of punishment within our criminal justice system.
There is no statutory wording or Kansas case which provides any guidance to this issue; however, it is consistent with the rule that when an earlier sentence is set aside, a later sentence which runs consecutively to the earlier sentence begins to run from the date of the imposition of the later sentence. See Jamison v. Cupp, 27 Or. App. 109, 555 P.2d 475 (1976). Jamison was convicted in 1971 and sentenced to serve eight years. In 1974, he was convicted of another crime and sentenced to six months to be served consecutive to the previous sentence. The 1971 conviction was then set aside, and the issue became what date a consecutive sentence is deemed to commence when the underlying conviction giving rise to the initial sentence is vacated. 27 Or. App. at 111.
According to Jamison, courts consistently rely upon “traditional notions of fair play which underlie the due process concept and the absence of any but technical reasons to the contrary.” The Oregon court declined to be the first court to adopt the approach that the later sentence begins on the date the earlier consecutive sentence was vacated and adopted the date of imposition approach. 27 Or. App. at 112-13.
Other states have adopted this approach. See Green v. State, 245 A.2d 147 (Me. 1968) (based on state statute, fair play required that where a prior sentence is set aside because it was void or voidable, the second sentence imposed at a later time must be moved forward and commence upon the first day of actual incarceration after its imposition); Potter v. State, 263 N.C. 114, 139 S.E.2d 4 (1964) (better and more humane view is that when a prior sentence is invalidated, the latter sentence which was to begin at the expiration of the earlier sentence commences from the day it was imposed).
It makes no sense to us that the legislature would intend that an incarcerated criminal could “bank” time to be applied to a sentence imposed for a crime not yet committed. Because guidelines were deemed to be in effect at the time of Duff’s 1993 sentence, such sentence should start running when it was imposed, not many months earlier. Moreover, when converting a sentence, the trial court is to determine the sentence anew, and there is no reason to require that the court be bound by an original decision to impose a sentence consecutively.
The Supreme Court’s analysis in Gonzales mandates that a retroactive sentence can no more properly begin before it is imposed than could an original sentence. We hold the trial court should utilize this reasoning in making the ordered retroactivity.
Finally, we need not address Duff’s argument concerning the trial court’s failure to rule on his motion to modify. It was a second motion to modify not filed within 120 days of the imposition of sentence, which the trial court was without jurisdiction to consider. See State v. Smith, 254 Kan. 16, Syl. ¶ 1, 864 P.2d 1208 (1993).
Reversed and remanded for further proceedings consistent with this opinion. | [
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Royse, J.:
D. R. Lauck Oil Company, Inc., (Lauck) brought this action, claiming that Christopher D. Breitenbach had converted the gas produced from a well operated by Lauck. After a bench trial, the district court entered judgment for Breitenbach. On appeal, Lauck argues (1) the district court erred in interpreting the parties’ oil and gas lease and (2) the district court erred in admitting into evidence another oil and gas lease.
Lauck’s first argument is that the district court erred in interpreting the parties’ oil and gas lease. The main body of the lease is a printed form which provides:
“[T]he lessor to have gas free of charge from any gas well on the leased premises for stoves and inside lights in the principal dwelling house on said land by making his own connections with the well, the use of such gas to be at the lessor’s sole risk and expense.”
The parties attached an exhibit containing 13 additional provisions to the main body of the lease. Paragraph 10 of that exhibit provides:
“If gas is produced on this lease the lessors, their heirs, their administrators, their executors, their successors and their assigns shall be furnished free gas for agricultural purposes or uses. If gas is produced on land by others and unitized, lessors, their heirs, their administrators, devisees, executors, successors and assigns can, at their option, purchase gas from the wells at the wellhead price for agricultural purposes or uses.”
Finally, the main body of the lease states: “This lease is subject to provisions 1 through 13 attached hereto and made a part hereof by reference. (See Exhibit ‘A’.)”
The parties stipulated that Breitenbach began taking the gas from the well on the property subject to the lease and using it on property not subject to the lease. The parties also stipulated that Breitenbach was using the gas for agricultural purposes.
The principal issue at the trial was whether the lease limits the use of the gas for agricultural purposes to the leased property. The district court determined that the lease contained no such limitation. The district court’s interpretation of the lease is a conclusion of law subject to unlimited review on appeal. “Regardless of the construction of a written contract made by the trial court, on appeal a contract may be construed and its legal effect determined by the appellate court.” Mark Twain Kansas City Bank v. Cates, 248 Kan. 700, 704, 810 P.2d 1154 (1991).
Oil and gas leases are subject to the well-recognized rules of contract construction. See Akandas, Inc. v. Klippel, 250 Kan. 458, 464, 827 P.2d 37 (1992).
“In construing a contract, the intent of the parties is the primary question; meaning should be ascertained by examining the documents from all comers and by considering all of the pertinent provisions, rather than by critical analysis of a single or isolated provision; and reasonable rather than unreasonable interpretations are favored.” 250 Kan. 458, Syl. ¶ 2.
When a contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987). Words cannot be written into a contract which import an intent wholly unexpressed when it was executed. Duffin v. Patrick, 212 Kan. 772, 778, 512 P.2d 442 (1973).
Lauck contends that the language in paragraph 10 is ambiguous and should be interpreted to restrict Breitenbach from using the gas on property other than the leased property. The only limitation set forth in paragraph 10, however, is that the gas must be used for agricultural purposes or uses. Paragraph 10 does not limit where or on what property Breitenbach may use the gas for agricultural purposes.
Lauck supports its argument by relying on the provision in the main body of the lease which authorizes the use of the gas for “stoves and inside lights in the principal dwelling house on said land.” Lauck contends that the “on said land” limitation should also apply to paragraph 10. This argument is not persuasive.
First, the two lease provisions cited by Lauck are totally distinct from one another. The provision in the main body of the lease applies only to the gas used in the dwelling house on said land. This provision is very narrow and will only apply in very specific situations. Paragraph 10, on the other hand, applies only to agricultural purposes. Paragraph 10 will also only apply in specific situations. Because the two lease provisions operate in separate situations, they cannot be viewed as inconsistent or contradictory. There is no justification for applying the limitation in the lease provision for the dwelling house use to the separate, distinct lease provision for the agricultural use.
If anything, the language of the parties’ lease refutes Lauck’s argument. The limitation on use in the main body of the lease shows the parties were perfectly capable of imposing a geographic limitation on the gas use when they chose to do so. The parties did not impose such a limitation in paragraph 10, and it is not the proper function of this court to rewrite the lease to add such a limitation. See Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, 586, 738 P.2d 866 (1987).
We conclude, as did the district court, that paragraph 10 does not restrict Breitenbach’s agricultural use of the gas to the leased premises.
Lauck seems to argue that comments from the court misled it in deciding what evidence to present. Although Lauck did not list this issue in its brief as an issue to be decided on appeal as required by Supreme Court Rule 6.02 (1994 Kan. Ct. R. Annot. 28), we will consider it briefly. Most of the comments cited by Lauck were made by the district court after Lauck had rested and could not have affected Lauck’s determination of the evidence it would offer. Moreover, Lauck made no objection, when the district court ruled the lease was not ambiguous, that Lauck had been misled and wished to reopen to present additional evidence. A point not presented to the district court cannot be presented for the first time on appeal. Diversified Financial Planners, Inc. v. Maderak, 248 Kan. 946, 948, 811 P.2d 1237 (1991). Finally, to date, Lauck has not identified what additional evidence it might have presented.
Lauck makes several arguments in support of its contention that paragraph 10 is ambiguous. First, Lauck argues the district court failed to consider the intent of the parties. The record indicates that the district court determined the intent of the parties by examining the lease. “The primary rule in construing written contracts is the intention of the parties as disclosed by the instruments.” Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 313, 856 P.2d 111 (1993).
Second, Lauck relies on those cases which state that reasonable interpretations are preferred over unreasonable interpretations. See Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 573, 313 P.2d 731 (1957). Lauck maintains that the unrestricted agricultural use of the gas from the well could consume all of the gas production. There is nothing in the record to quantify the amount of the gas Breitenbach has used. But even more importantly, Kansas adheres to the
“general principle that competent parties 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.” Adams v. John Deere Co., 13 Kan. App. 2d 489, 492, 774 P.2d 355 (1989).
Lauck has not asserted any reason to disregard this general principle. If Lauck wished to limit Breitenbach’s agricultural use of the gas from the well, it should have negotiated for such a limitation in the lease.
Third, Lauck relies on the rule that ambiguous language should be construed against the party who prepared the document. Lauck says Breitenbach prepared the lease provisions. This rule of construction applies to ambiguous contract language. If the language of a contract is clear and can be carried out as written, there is no room for applying rules of construction. Simon v. National Farmers Organization, Inc., 250 Kan. 676, Syl. ¶ 2, 829 P.2d 884 (1992). The language of paragraph 10 is not ambiguous.
For its fourth argument, Lauck relies on the rule prohibiting courts from inserting words into a contract imparting an intent unexpressed by the parties. Lauck claims:
“The questioned provisions of the lease are absent any language as to the extent of permitted ‘agricultural purposes’ use of the gas. In coming to the conclusion that the parties’ intended gas use for ‘agricultural purposes’ to be unlimited, the trial court in essence rewrote paragraph 10 of Exhibit A to the lease in a way wholly unexpressed by the parties at the time the lease was executed.”
In other words, Lauck claims that because paragraph 10 contains no geographical limitation, the court must construe the paragraph to impose such a limitation. Lauck, thus, asks this court to do the very thing that Lauck says a court must not do: rewrite the parties’ agreement.
Finally, Lauck relies on the rule of contract construction that language used anywhere in a contract should be considered and construed in harmony with all provisions and not in isolation. Wood River Pipeline, 241 Kan. 580, Syl. ¶ 4. This rule does not require that dissimilar contract provisions be given the same interpretation. The provision for using the gas in the dwelling house contains a geographical limitation; the provision for agricultural use of the gas does not.
The district court did not err in its interpretation of the lease.
The second issue Lauck raises on appeal is whether the district court erred in admitting into evidence another lease which con tained the same two provisions. On appeal, Lauck objects that the other lease was irrelevant and inadmissible hearsay. The record reflects, however, that Breitenbach testified without objection that the other lease contained provisions identical to those which were at issue in this case. Even if Lauck is correct that it was error to admit the other lease, the error was not prejudicial. See Grubb, Administrator v. Grubb, 208 Kan. 484, 487, 493 P.2d 189 (1972); Heller v. Rounkles, 171 Kan. 323, 327, 232 P.2d 225 (1951).
Affirmed. | [
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Pierron, J.:
The issue before us is whether this case should be remanded to determine if the Department of Corrections (DOC) erred in calculating the defendant’s conversion sentence. We believe it should.
The defendant received two consecutive sentences for two convictions of burglary. The DOC issued a sentencing guidelines report determining his sentence should be converted to a determinate sentence of 54 months. The defendant objected pro se, discussing “good time” and asking the court to recalculate the sentence. At a hearing where the defendant was not present but was represented by counsel, his counsel argued the sentences should run concurrently, not consecutively. The court denied modification of sentence at the hearing.
On appeal the defendant argues for the first time that the DOC incorrectly added two consecutive sentences of 27 months to reach the sentence recommendation instead of determining a base sentence of 27 months and adding a nonbase sentence of 12 months as required by K.S.A. 1993 Supp. 21-4720. The defendant asks that the case be remanded and the trial court directed to convert his sentence in accordance with 21-4720 to a sentence of 39 months.
We believe we can address this issue. K.S.A. 22-3504 provides:
“(1) The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.” (Emphasis added.)
In State v. Thomas, 239 Kan. 457, Syl. ¶ 4, 720 P.2d 1059 (1986), the Supreme Court said:
“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 punishnient authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served.” (Emphasis added.)
The error in computation is the result of the DOC’s considering the defendant’s criminal history on both sentences when converting his consecutive indeterminate sentences to consecutive guidelines sentences.
K.S.A. 1993 Supp. 21-4720 provides in part:
“(b) The sentencing judge shall have discretion to impose concurrent or consecutive sentences in multiple conviction cases. In cases where consecutive sentences may be imposed by the judge, the following shall apply:
(2) The sentencing judge must establish a base sentence for the primary crime. The primary crime is the crime with the highest crime severity ranking. ... If more than one crime of conviction is classified in the same crime category, the sentencing judge must designate which crime will serve as the primary crime.
(3) The base sentence is set using the total criminal history score assigned.
(4) The total sentence assigned for a current conviction event cannot exceed twice the base sentence. ...
(5) Nonbase sentences will not have criminal history scores applied, as calculated in the criminal history I column of the grid, but base sentences will have the full criminal history score assigned.”
From the record as it is now before us, the DOC should have determined a base sentence and a nonbase sentence. The defendant’s two offenses were of the same offense severity, level 7. His criminal history, one person and three nonperson felonies, was category C; therefore, on his primary offense he would receive a sentence of 27 months. See K.S.A. 1993 Supp. 21-4704. For his second offense he would receive 12 months, as it would be considered the nonbase sentence. The DOC used his criminal history twice and arrived at a sentence of 54 months by doubling the primary or base sentence. The defendant’s converted sentence should be 39 months, reflecting a base sentence of 27 months and a consecutive nonbase sentence of 12 months.
The State, by letter, does not object that this issue is raised for the first time on appeal and agrees the case should be remanded for determination of the appropriate prison sentence.
We therefore vacate the sentence and remand to the trial court for a determination of an appropriate guidelines sentence.
Sentence vacated and case remanded for resentencing. | [
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Elliott, J.:
Ellis County Equipment Company (ECE) appeals the trial court’s ruling it did not have a security interest in certain assets of Hays Asphalt Construction, Inc. (HAC).
We reverse and remand.
The facts are essentially undisputed. Ed Baldwin d/b/a Budget Host Inn obtained a default judgment against HAC. The City of Ness City owed HAC money which Baldwin sought to garnish in order to collect his judgment.
ECE intervened in the garnishment, claiming a prior security interest in HAC’s accounts receivable. ECE claims it leased certain equipment to HAC and to secure HAC’s performance under the lease, ECE claims HAC gave it a security interest in, inter alia, its receivables. ECE produced three documents to support its claim: a security agreement, a lease agreement, and a financing statement signed by HAC and filed with the Secretary of State.
The magistrate judge found ECE did not have a security interest in HAC’s receivables, and the district court ruled similarly on appeal.
ECE first argues the trial court erroneously ruled that a lease may not be secured with a Uniform Commercial Code (UCC) Article 9 security interest. We agree.
Interpretation of the UCC is a question of law, and thus our review is plenary. See City of Lakin v. Kansas Employment Security Bd. of Review, 19 Kan. App. 2d 188, 189, 865 P.2d 223 (1993).
Our commercial code applies to any transaction, regardless of form, intended to create a security interest in personal property. K.S.A. 84-9-102(l)(a). A security interest is an interest in personal property which secures payment or performance of an obligation. K.S.A. 84-1-201(37). Before a security interest can attach, the secured party must give value to the debtor. K.S.A. 1994 Supp. 84-9-203(l)(b). And a person gives value for rights if the person acquires them in return for any consideration sufficient to support a simple contract. K.S.A. 84-l-201(44)(d).
Clearly, under these provisions, a lease may be secured with an Article 9 security interest, which would or could secure the payment or performance of the lease obligations; the lease itself constitutes consideration sufficient to support a simple contract.
The Florida Court of Appeals, in a strikingly similar case, reached the same conclusion. There, the court applied the definition of “value” (identical to the Kansas definition) and held that although a lessor
“cannot be both an exclusive owner and a secured creditor concerning the leased equipment, there is nothing in the statutes or in logic which prevents [the lessor] from receiving a security interest in one property, i.e., the accounts receivable, to protect its ownership interest in another property, i.e., the leased equipment.” Bruno v. Fleet Credit Corp., 564 So. 2d 599, 600 (Fla. Dist. App. 1990).
The trial court’s ruling that a lease may be an obligation that can be the basis for a security interest conflicts with its ruling that ECE did not give HAC any value or consideration for the security agreement. A lease may be secured with an Article 9 security interest, and ECE may secure its lease with a security interest in HAC’s receivables.
The trial court erred in ruling ECE did not give value or consideration for the security agreement.
The trial court also found that the documents produced by ECE do not show the parties intended to secure the lease. This issue is somewhat confused by what may or may not be a typographical error in dates on the documents, which became the centerpiece of ECE’s motion for reconsideration. We view the discrepancy of dates immaterial. But a few additional facts might prove helpful at this juncture. The security agreement is dated March 8, 1990, while the lease is dated in May 1992. The financing statement is not dated but was filed September 8, 1992 (as part of the motion for reconsideration, an affidavit was filed stating HAC was not organized until 1992).
Regardless, Baldwin claims ECE has no security interest in HAC’s receivables because there is no reference in one document to the other indicating that they were tied together.
A security agreement is simply an agreement which creates or provides for a security interest. K.S.A. 1994 Supp. 84-9-105(1). A security agreement is effective according to its terms between the parties, against purchasers of the collateral, and against creditors. K.S.A. 84-9-201.
Further, K.S.A. 1994 Supp. 84-9-203(1) provides:
“[A] security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless:
“(a) The collateral is in the possession of the secured party pursuant to agreement, or the debtor has signed a security agreement which contains a description of the collateral . . .;
“(b) value has been given; and
"(c) the debtor has rights in the collateral.”
These are the only three sections of the UCC dealing with the requirements of a security agreement. Nothing requires the security agreement to reference the underlying obligation, or vice versa, before the security will attach.
The only reference to describing the underlying transaction in a security agreement is found in the 1983 Kansas Comment to 84-9-203. That comment lists six items that a typical security agreement contains, including “a broad description of the obligations secured.”
Unfortunately, the only Kansas cases dealing with the issue all involve the meaning of “dragnet” or “anaconda” clauses — provisions attempting to secure all obligations between the debtor and the secured party.
In the present case, the security agreement contains a dragnet clause, but our cases interpreting those clauses do not help much here because they all concern real estate mortgages. Article 9 does not apply to liens on realty. K.S.A. 84-9-104(j); Ingram v. Ingram, 214 Kan. 415, 423, 521 P.2d 254 (1974).
The problem was at least recognized in In re Johnson, 105 Bankr. 661 (D. Kan. 1989), where the issue was whether the dragnet clause was adequate to sweep up a preexisting debt between the parties. The court noted that under the 1983 Kansas Comment to 84-9-203, the security agreement “must only contain” a broad description of the underlying obligation. 105 Bankr. at 664.
That is an overstatement. The comment does not state a security agreement must contain a broad description of the secured debt, nor does it say it must contain any description at all. Rather, it states the typical security agreement used by Kansas creditors contains a broad description of the secured debt.
Nonetheless, the Johnson court held the security agreement securing “all obligations of the undersigned to the Bank, . . . now or hereafter existing or due or to become due,” secured the preexisting debt in question. 105 Bankr. at 663-65.
Likewise, Bank of Kansas v. Nelson Music Co., Inc., 949 F.2d 321 (10th Cir. 1991), applied the language of the Kansas Comment in construing a security agreement containing a dragnet clause. The court held that the language “shall secure all obligations of the undersigned to the Bank, howsoever created” was a broad description of the obligation secured and therefore covered a preexisting debt between the parties. 949 F.2d at 322-24.
We hold the Kansas UCC does not require any mention of the obligation secured, but even if the statutes require a broad description of the obligation secured as indicated by Johnson and Bank of Kansas, the security agreement iri the present case sufficiently does so.
In determining whether a security interest exists, the intent of the parties controls, and that intent may best be determined by examining the language used and considering the conditions and circumstances confronting the parties when the contract was made. See City of Arkansas City v. Anderson, 242 Kan. 875, 883, 752 P.2d 673 (1988).
In the present case, neither the magistrate judge nor the district judge considered any evidence or testimony at all.
The security agreement provides:
“1. ... In consideration of one or more loans, advances, or other financial accommodations at any time made or extended by ELLIS COUNTY EQUIPMENT, INC., (The ‘Secured Party’) to the undersigned; the undersigned hereby grants the Secured Party a security interest in the Collateral as security for the payment, performance, and observance by the undersigned [of] the Obligations ....
‘‘2. . . . The term ‘Obligations’ shall include all indebtedness, obligations, and liabilities of any kind of the undersigned to the Secured Party . . . now existing or hereafter arising ....
“The term ‘Collateral’ shall include ... all present and hereafter existing or acquired accounts [and] contract rights . . . .”
The lease provides:
“18. . . . Lessee will promptly execute and deliver to Lessor such further documents and take such further action as Lessor may request in order to more effectively carry out the intent and purpose hereof, including without limitation:
“(b) die taking of such further action as Lessor may deem desirable to fully protect Lessor’s interest hereunder in accordance widi the Uniform Commercial Code or other applicable law. Lessee hereby authorizes Lessor to effect any such filings as aforesaid (including the filing of any financial statements under die Uniform Commercial Code without the signature of Lessee)
Read together, these two documents indicate an intent by HAC to grant ECE a security interest' in HAC’s receivables to secure all described obligations owing to ECE. This intent is further evidenced by the financing statement containing a description of the collateral identical to that contained in the security agreement.
This brings us to the question of the dates. According to the stipulated facts, the security agreement was dated in 1990, and the lease agreement and the January statement were executed or filed in 1992. The district court seems to have found those dates as indicative of the parties’ lack of intent to create a security interest.
Under our reading of the UCC, timing is irrelevant. K.S.A. 1994 Supp. 84-9-203(1) provides only that the three listed events must occur before a security interest will attach — it does not state a sequential requirement. To interpret this statute otherwise would invalidate countless security agreements containing future advance clauses, contraiy to 84-9-204(3).
Further, we must emphasize one additional fact. This dispute is not between HAC and ECE, the parties to the security agreement. Rather, this dispute is between two competing creditors. There is no evidence in the record that HAC disputed the existence of a security agreement between HAC and ECE.
The documents clearly demonstrate HAC’s intent to grant ECE a security interest to secure the lease, and the discrepancy as to the dates does not invalidate that intent.
Reversed and remanded. | [
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Briscoe, C.J.:
Michael Bock appeals a hearing officer s order granting Jane Bock an increase in child support. He contends the hearing officer erred in awarding an increase in child support in the absence of a showing of financial need by Jane, the custodial parent. This court is without jurisdiction to consider an appeal from an order entered by a hearing officer which was not first reviewed by the district court. We dismiss this appeal for lack of jurisdiction.
The Bocks were divorced in 1992 and Jane was awarded custody of the parties’ three minor children. In 1993, Jane sought an increase in child support and a hearing officer granted the increase. Michael moved the district court to set aside the order, citing newly discovered evidence. The district court granted the motion and remanded the matter to the hearing officer for reconsideration in light of “the facts contained in certain correspondence sent from the Respondent to the Petitioner.” The hearing officer reinstated the original increase in support, and the district court approved this order. Following the hearing officers reinstatement of its order increasing child support, Michael did not seek judicial review of the hearing officer’s order under Supreme Court Rule 172(g) (1993 Kan. Ct. R. Annot. 149), but appealed directly to this court.
Rule 172 provides that district judges, district magistrate judges, and court trustees may serve as hearing officers in domestic relations matters within the scope of Rule 172. Subsection (b)(5) provides that “orders proposed by court trustees shall be approved by a judge before the order is issued,” while subsection (g) provides that decisions of court trustees and magistrate judges “shall be subject to review by an associate district judge or district judge on the motion of any party filed within 10 days after the order was entered.” K.S.A. 1993 Supp. 60-2101(a) provides that this court “shall have jurisdiction to hear appeals from district courts, except in those cases renewable by law in the district court.”
In this case, the order was proposed by a hearing officer who is not a judge. The proposed order was approved by a judge, but was not reviewed by the district court pursuant to Rule 172(g). In the absence of a review of the hearing officer’s order by the district court, this court is without jurisdiction to consider this appeal from the hearing officer’s order. K.S.A. 1993 Supp. 60-2101(a).
Appeal dismissed. | [
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Briscoe, C.J.:
Historic Preservation Alliance, Inc., (HPA) appeals from the district court’s dismissal of its appeal from a de cisión by the Wichita City Council (Council) as untimely filed. At issue is whether the Council’s decision was final and appealable on November 8 or on November 15, 1994. After concluding HPA’s appeal to the district court was timely because the Council’s decision was not final and appealable until November 15, we reverse and remand for the district court’s determination of HPA’s appeal on its merits.
The Allis Hotel (Hotel), located in Wichita, Kansas, was built in 1929 and remained in operation until 1968. After its closing, the Hotel stood vacant for over 20 years.
In 1992, the Hotel was listed in the Register of Historic Kansas Places maintained by the Kansas State Historical Society. Under K.S.A. 1994 Supp. 75-2724(a), the State Historic Preservation Officer (SHPO) has the statutory authority to review and comment on the impact a project may have on any listed building and its environs. Prior to issuance of a demolition permit, the SHPO must be given five days’ notice by certified mail of a determination that there is no feasible and prudent alternative to demolition. In addition, K.S.A. 1994 Supp. 75-2724(b) provides that “[a]ny person aggrieved by the determination of a governing body pursuant to this section may seek review of such determination in accordance with K.S.A. 60-2101 and amendments thereto.”
On March 1, 1994, the City of Wichita (City) acquired the Hotel from its owners pursuant to a settlement of various lawsuits and the City’s payment of $375,000 to the owners. In late March, the City mailed “requests for proposals” to 58 firms across the nation hoping to attract a firm that would be interested in rehabilitating the Hotel. Only two firms responded and forwarded proposals. After the proposals were reviewed by a committee of city staff and individuals from the private sector experienced in construction and proposal analysis, the City rejected both proposals. In June 1994, the City contacted 10 developers to encourage their submission of redevelopment proposals. Only one developer responded, declining the offer.
On August 31, 1994, the City sent notice to the SHPO that it intended to demolish the Hotel. In response, the SHPO notified the City on October 21, 1994, that the City’s plan would destroy the Hotel, a historic property included in the Register of Historic Kansas Places.
During the week of October 31, 1994, the City placed on the agenda of the November 8 Council meeting the question of whether there was a feasible and prudent alternative to the demolition of the Hotel. During that same week, the Council staff prepared an agenda report for the Mayor and the Council, setting forth the history of the Hotel and the City’s actions regarding the Hotel since the City obtained title in March 1994.
At its November 8 meeting the Council received additional information as to whether a feasible and prudent alternative to demolition of the Hotel existed. All persons who asked to speak to the issue were given an opportunity to do so, including representatives of HPA and Kansas Preservation Alliance. Only one proposal was submitted as an alternative to demolition. The Council recessed while the financial particulars of that proposal were evaluated by staff of the City. When the Council returned to the matter later in the day, staff reported that the proposal was not economically feasible, even with the assumption that historic preservation tax credits could be used to supply some portion of the developer’s equity required for the renovated hotel project. After further discussion, the Council adopted a motion “that the Council find that a feasible and prudent alternative to demolition does not exist and that staff prepare written findings and provide the State Historical Preservation Office with a statutory notice of its findings.”
At the next regularly scheduled Council meeting on November 15, 1994, an item was placed on the agenda which listed 22 findings of fact relating to the proposed demolition of the Hotel. Included in those findings was a determination that no feasible and prudent alternative to the demolition existed. The Council adopted the findings by unanimous vote without further discussion. No additional testimony or information was presented to the Council at the November 15 meeting.
On November 15, 1994, the City sent notice to the SHPO that it had determined no feasible and prudent alternative to demolition existed. Along with the notice, the City sent a copy of the findings it adopted on November 15. The City stated in its notice that it would not proceed with the proposed demolition for a period of five days from the date of receipt of the notice. On December 15, 1994, HPA served notice on the City of its intent to appeal the Council’s finding that no feasible and prudent alternative to demolition existed. HPA filed a petition and notice of appeal with the district court on December 15, 1994, challenging the City’s action. HPA also filed a motion for temporary injunction on that same day. The district court issued a temporary restraining order, restraining the City from damaging, destroying, or demolishing the Hotel until a hearing was held on the motion for temporary injunction.
On December 21, 1994, the district court heard the motion for temporary injunction and determined the notice of appeal filed by HPA on December 15 was not timely. The court denied the motion for temporary injunction, dissolved the temporary restraining order, and dismissed the appeal as untimely filed. HPA then filed a timely notice of appeal to this court.
After docketing the appeal, HPA filed a motion for immediate stay and/or injunction with this court. On January 12, 1995, this court entered an interim stay order pending the filing of a response by the City. After the City filed a response, HPA’s motion was heard on January 26, 1995. HPA’s motion for temporary injunction was granted on February 6, 1995, prohibiting further demolition of the Hotel during the pendency of this appeal. The City was allowed to remove all friable asbestos-containing material from exposed surfaces pending resolution of this appeal.
Was HPA’s notice of appeal timely filed with the district court?
K.S.A. 60-2101(d) applies to a “judgment rendered or final order made by a political or taxing subdivision, or any agency thereof.” K.S.A. 60-254(a) defines a judgment as “the final determination of the rights of the parties in an action.” Under 60-2101(d), when no other means for perfecting an appeal is provided by law, a notice of appeal to the district court must be filed “from such judgment or order with such subdivision or agency within 30 days of its entiy.” The time for appeal therefore could begin to ran only upon entiy of the final order or judgment of the Council.
Even if the Council’s decision of November 8 was entered when it was announced at the November 8 meeting and made a part of the Council’s minutes, the time for appeal would not begin to run from that date unless the decision was the Council’s final order or judgment. See Thompson v. Amis, 208 Kan. 658, 659, 663, 493 P.2d 1259, cert. denied 409 U.S. 847 (1972).
The November 8 decision was not the Council’s final determination or final order. A final order or judgment has been defined as “one which finally decides and disposes of the merits of the proceeding, and reserves no further question, or direction, for the future or further action” of the tribunal. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 15, 687 P.2d 603 (1984).
Although on November 8 the Council found that a feasible and prudent alternative to demolition did not exist, it directed further action and did not finally decide and dispose of the merits of the proceeding. The Council directed City staff to prepare written findings on the issue and to provide the SHPO with statutory notice of its findings. The fact that the Council formally adopted the staff findings at its November 15 meeting indicates the Council did not consider its November 8 decision to be final. See Cortez v. Owyhee County, 117 Idaho 1034, 1037, 793 P.2d 707 (1990) (logical to conclude the county commissioners would not have issued written findings and conclusions if they had considered an earlier action to be a final decision). As HPA argues, Council members could have changed their minds after preparation of the written findings and could have voted against adoption of the findings at the November 15 meeting. Otherwise, there would have been no reason for the Council to adopt the written findings. The matter was still at least technically under consideration when the Council considered the proposed findings on November 15.
A decision cannot be final when the matter is still under consideration. In Bruns v. Kansas State Bd. of Technical Professions, 19 Kan. App. 2d 83, 864 P.2d 1212 (1993), aff’d 255 Kan. 728, 877 P.2d 391 (1994), the plaintiff appealed the denial of an en gmeering license after the defendant administrative board had issued four separate letters advising the plaintiff of its decision; the appeal was filed more than 30 days after the first three letters but within 30 days after the fourth letter. The court held the appeal was timely because the first three letters were not final orders.
“The fact is, up until the fourth order was issued, the matter was still under active consideration by the [Board of Technical Professions]. To require a petition for review to be filed while a matter is still pending and being litigated would create mass confusion and be lacking in logic. It would also run afoul of the rule of law that requires one to exhaust administrative remedies before resorting to the courts . . . .” 19 Kan. App. 2d at 85.
Moreover, until the Council adopted the written findings, the basis for its decision was not clear. It would be difficult for an aggrieved party to make a reasoned decision on whether to appeal an order before the basis for the order is made known.
As the City points out, specific written findings may not have been required. See Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, Syl. ¶ 9, 539 P.2d 1 (1975). The Council could have entered judgment immediately on November 8. By directing its staff to prepare written findings for later adoption, the Council delayed entry of final judgment.
At the very least, the Council made it appear that its decision of November 8 was not a final order. Aggrieved parties could reasonably conclude the November 8 decision was not final. See LeCounte v. City of Wichita, 225 Kan. 48, 53-54, 587 P.2d 310 (1978). The time for appeal should not run when the decision-making body “has created the impression that the determination, albeit issued, was intended to be nonconclusive.” Edmead v. McGuire, 67 N.Y.2d 714, 716, 499 N.Y.S.2d 934, 490 N.E.2d 853 (1986). See Swafford v. Norwood Bd. of Edn., 14 Ohio App. 3d 346, 471 N.E.2d 509 (1984). Implicit in the rule that only final decisions are appealable is the requirement that the parties know that the decision is final. See Crofton v. Anne Arundel County, 99 Md. App. 3d 233, 243, 636 A.2d 487, cert. denied 335 Md. 81 (1994).
The City’s sending notice to the SHPO on November 15, 1994, is further support for the conclusion that the Council’s decision was not final until November 15. If the Council’s action was final on November 8, the Council would have no reason to adopt written findings on November 15 and. delay the mailing of notice to the SHPO until that date.
Reversed and remanded to the district court for determination of HPA’s appeal on its merits. | [
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The opinion of the court was delivered by
West, J.:
The appellant was a hack driver at Wichita, and on the night in question called about midnight at a certain house for two- traveling men, who entered his hack. Two girls, each under eighteen years of age, were standing near when the hack stopped, and either of their own accord or upon appellant’s invitation entered the hack, whereupon the four were driven a few blocks, occupying about twenty minutes’ time, during which one of the traveling men, V, committed a rape upon one of the girls, L. After the two men left the hack appellant drove the girls for some time, finally going some distance for a passenger, who rode back to the hotel with them, and about three or four o’clock he left them at a hotel, where he claims they desired a room, he giving them a dollar to pay therefor on their assertion that they had no way of paying for lodging, their claim being that he merely gave or handed them the dollar. It is clear that the girls remained in the hack three or four hours after the offense was committed by V, and it is claimed by appellee that during this time appellant induced L to get upon the hack, whereupon he went inside and committed the offense charged upon the other girl, P.
V and appellant were informed against at the same time for rape, the offenses both being laid on the same ■day. The witnesses indorsed on both informations were identical. V was tried November 6,. 1909, appellant’s case being postponed on his own application until a later date and tried on November 29. L testified in the case against V, and produced a pair of drawers claimed to have been worn by her when the offense was committed by V and on which it was claimed that there were blood spots caused by its commission. She testified that she and P were in the hack drawn by appellant about 11:30, when two traveling men entered, and that appellant drove them several blocks, occupying about twenty minutes’ time, during which time the offense was committed by V, that she called to appellant to stop the hack and let the girls or the men out, and that appellant had invited the girls into the hack. P testified substantially the same, and two doctors gaye ' ■evidence that they had examined L and found that the alleged character of offense had been committed upon her. P testified that on South Tremont street appellant got into the hack with her and that L got upon the hack. Another witness said that he had ridden on the morning in question from the Lenox sanitarium to the Carey hotel in a hack in which there were two girls, y was convicted of the offense charged.
Upon the trial of appellant five jurors who had sat in the trial of V were permitted to sit, over the objection of appellant, and after vigorous but fruitless efforts to exclude them on the ground that they were disqualified by reason of what they had seen and heard as jurors in the other case. Each testified, however, that he had no opinion as to appellant’s guilt or innocence, and knew of no reason why he could not sit as a fair and impartial juror. The court rigorously excluded all questions touching what the jurors had seen and heard in the trial of V, it being manifest that the offense committed by V was several hours prior to the-time appellant entered the hack and was charged with having committed the offense upon P.
It is urged with much force that appellant has not-been accorded a trial by a fair and impartial jury, and that it was error to permit these five jurors to sit in his case. It seems from the abstracts that a number of them, at least, were challenged after appellant had exhausted all his peremptory challenges. Other complaints are made, but we regard this as the only one-demanding our attention.
It must not be forgotten that the two alleged offenses were several hours apart, by different defendants, upon different victims, and there is no vital connection between the two. But it must be remembered, also, that both occurred in appellant’s hack, driven by him, and the two girls remained therein before, during, and after the commission of both offenses, save the change of place from the inside to the outside by L, as claimed by appellee; that it was proven, or at least testified, that L called to appellant to let the girls or the men out; that he finally landed them at three or four o’clock in the morning at a hotel, and gave them money to pay for a room, and that the garment worn by L was exhibited before, and the testimony of the two physicians was heard by, these jurors in the trial of V.
That their minds, after finding V guilty of rape upon the testimony of the identical witnesses whose names were indorsed upon the information against appellant, were in condition fairly and impartially to sit in the trial of appellant upon a similar charge, on the same night, in a continuation of the same drive, in the same hack, we can hardly believe. Answers by these jurors to categorical questions, though doubtless intended to> be truthful; are less convincing than the known nature and tendency of the human mind.
We are cited to cases in which this and other courts have gone far in upholding the competency of jurors who had an opinion concerning some conceded or known essential fact or facts, or who had heard unsworn statements concerning the commission of the alleged crime without coming to any conclusion or •opinion as to the guilt of the person charged, or concerning similar but disconnected offenses by the same person; and in fairness to the able and learned trial .judge it should be said that numerous authorities may be found which support or strongly tend to support the ruling now complained of; but we believe the spirit, at least, of the statutes and decisions of this state, as well as the decisions in numerous other states, calls for a -different ruling.
It might have been possible to try appellant without .going back to the time when the girls entered the hack, and without reference to the offense of V, but it would have been impracticable, and it was not done in this •case, as the record plainly shows; and going back, as this trial did, almost if not entirely of necessity to the beginning of the drive, it might be said that to quite a material extent the trial of appellant was a retrial of V, so connected and mingled were the two offenses and the facts and circumstances surrounding them. Five of the jury could not help realizing that here were the •same hack, the same driver, the same ride, or a continuation thereof, the same girls, the same witnesses-they had considered and heard in the other case, and it is too much to expect jurors under such circumstances to be free from bias and prejudice, having already convicted on the testimony of the same witnesses another inmate of the same hack in the early part of the same •drive.
Section 10 of the bill of rights guarantees a trial by an “impartial jury.” Sections 202, 203 and 205 of the code of criminal procedure, and 208 in connection with section 282 of the code of civil procedure, provide in substance that a suspicion of prejudice, service on the grand jury which returned the indictment, the previous formation or expression of an opinion on the issue of any material fact to be tried, or having formerly been a juror in the same case, may be good ground for challenge, the validity of the cause first mentioned to be determined by the court.
In Weeks v. Medler, 20 Kan. 57, it was held that to bring one within the ground of having formerly been a juror in the same action it is not essential that the cause shall have been at such former time fully tried or the jury discharged for failure to agree. “It is enough if the case has been partially tried, and a portion of the testimony received.” (p. 63.) The spirit, if not the letter, of this decision is against the propriety of permitting the five challenged jurors in the case of V to sit in the trial of appellant.
In The State v. Otto, 61 Kan. 58, in a prosecution for larceny of cattle, it was held a good ground of challenge that a juror had an opinion that the defendant had taken stolen cattle to market, this being a material question in the case. It was there said':
“It is the duty of the court, imposed both,by statute ■and by the principles of natural justice, to stand as a vigilant guard over the jury box, to the end that bias, prejudice and 'preconceived opinion do not enter.” (p. 63.)
In 24 Cyc. 278, 279, the rule is thus stated:
“A juror is not incompetent because he has previously tried a case of the same character and involving the same general considerations, or where the second case is brought on different grounds to be established by different evidence; but where they arise out of the same transaction' and involve the same issues or are to be determined upon the same evidence the juror is incompetent; and if practically the same question is to be again decided it is immaterial whether only the same or other and additional witnesses are to be examined. So, also, if during the continuance of a case any of the jurors are impaneled and render a verdict in another case in which the same issues are involved, they are not competent to proceed with the trial of the first case. . . . But on the other hand it is held that a juror is incompetent if he has served upon the trial of another defendant charged with the same identical offense involving the same transaction, or a different offense growing out of the same transaction and involving the same facts and circumstances, or where any of the material issues in the case on trial were considered and passed upon at the former trial, and this notwithstanding the juror states that he has formed no opinion as to defendant’s guilt and can try the case impartially.”
In Wickard v. The State, 109 Ala. 45, it was held that on the trial of an indictment for playing and betting at a game of cards or dice the defendant is entitled to challenge for cause jurors who had sat upon the trial of another person convicted during the same term of court of a like offense, at the same house, within the same period, at which defendant was charged to have played and bet.
In Lewis v. State, 118 Ga. 803, the court said:
“That jurors should be impartial is of the very essence of a fair trial by jury. If they have already taken part in the trial of other persons implicated in the offense of which the defendant is charged, they have almost necessarily received an impression either for or against him.” (p. 804.)
In Baker v. Harris, 60 N. C. 277, it was held that an action brought by C against B for fraudulently removing a debtor was not properly triable by jurors who h'ad sat in a case of the same sort brought by A against B. The court said:
“It is not in the nature of man, even in the most conscientious of the race, to devest himself altogether of prepossession or bias in favor of a judgment so solemnly formed; and it is difficult to perceive how the bias can be less in the special case before us than in the case of a juror called to try the same.cause a second time.” (p. 280.)
In Mima Queen and Child v. Hepburn, 7 Cranch (11 U. S.) 290, Mr. Chief Justice Marshall said:
“It is certainly much to' be desired that jurors should enter upon their duties with minds entirely free from every prejudice. Perhaps on general and public questions it is scarcely possible to avoid receiving some prepossessions, and where a private right depends on such ■a question the difficulty of obtaining^ jurors whose minds are entirely uninfluenced by opinions previously formed is undoubtedly considerable. Yet they ought to be. superior to every exception, they ought to stand perfectly indifferent between the parties, and although-the bias which was acknowledged in this case might not perhaps have been so strong as to render it positively improper to allow the juror to be sworn on the jury, yet it was desirable to submit the case to those who felt no bias either way; and therefore the court-exercised a sound discretion in not permitting him tp be sworn.” (p. 297.)
Although in our opinion the trial court should have refused to allow these jurors to sit, it is apparent from the record that the judgment need not be reversed, for the appellant has suffered no material or substantial damage. The appellant took the stand in his own behalf, and after testifying that he first saw the two girls about two o’clock in the morning, that after he had driven with the girls in the hack for the man at the Lenox sanitarium he had come back to the Carey hotel, and then taken the girls to the Arlington hotel, he testified as follows:
“Ques. Now, isn’t it a fact that in the police matron’s room, in the presence of Mrs. King and* those two girls, Leona Anderson and Pauline Forsythe, the chief of police and my stenographer, Frank Stewart, and myself, that you said that you drove south on Tremont street and that there you took Leona Anderson out of the cab and on top of the cab to drive, and you got into the cab with Pauline Forsythe? Ans. I do not remember it.
“Q. And didn’t I tell you you needn’t say anything if you didn’t want to ? A. I don’t remember.
“Q. And then these girls told their story, and didn’t I ask you the question if you had had intercourse with Pauline Forsythe, and you said, No, you had tried to, but you could not while you were in the hack? A. I said something to that effect; I don’t know what it was.
“Q. You remember of saying something to that effect at that time; why is it you can not remember the balance of it? A. Well, I don’t know, I was all worked up.
“Q. Didn’t I tell you you didn’t have to make a statement if you didn’t want to? A. No, I don’t remember.
“Q. You do remember, however, saying that you did get into the hack with Pauline Forsythe and attempted to have intercourse with her, but couldn’t? A. I don’t remember saying T got in the hack.’
“Q. Do you remember of saying that you attempted to have intercourse with her, but couldn’t? A. No, I don’t remember so saying that positively.
“Q. Didn’t you say a few moments ago you did? A. I don’t remember just what I did say.
“Q. Didn’t you say a few moments ago that you did remember of saying that you attempted having intercourse with Pauline Forsythe,, but couldn’t? A. I said something like that.”
It is quite apparent from this testimony that this is a proper case in which to follow the statutory rule:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Crim. Code, § 293.)
Had the evidence been such that the jury might reasonably have doubted that such attempt was committed, and had it not been for the admission by the appellant just referred to,' the error in overruling the challenges to the jurors in question would be one affecting the substantial rights of the appellant in fact as well as in theory. But in view of the evidence and admission shown by the abstracts, and in view of the crime charged and the lower offense of which the appellant was convicted, he has no just and substantial cause for complaint.
The section of the code of criminal procedure quoted is an expression of the sound and sensible rule that error, to be availing, must be injurious in fact as well as in theory. This section has been upon the statute book since 1868 (Gen. Stat. 1868, ch. 82, § 298); and even before that, in 1860, this court, in the case of The Territory v. Reyburn, 1 Kan. [Dassler’s ed.] 551, in the second paragraph of the syllabus said:
“The whole spirit of the civil and criminal codes of practice, alike, is to disregard technicalities and observe the substance only.”
Without referring; to numerous early authorities, it is sufficient to suggest that this doctrine, now, in this state, made almost venerable by time, has in recent as well as in former years been approved and followed by this court. (The State v. Johnson, 70 Kan. 861, 867; The State v. White, 71 Kan. 356; The State v. Connor, 74 Kan. 898; The State v. Hinchman, 74 Kan. 419; The State v. Tawney, 78 Kan. 855; The State v. Carrithers, 79 Kan. 401; The State v. Moore, 79 Kan. 688, 692; The State v. Bowman, 80 Kan. 473, 478; The State v. Winters, 81 Kan. 414, 421.)
From the evidence before us it is impossible to see how the jury, regardless of any former knowledge or information, could have arrived at any other verdict, and it would be idle to require a new trial under these circumstances.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This is the second review of this case. (Benton v. Benton, 78 Kan. 366.) A new trial resulted in a judgment for the defendant, and the plaintiff, May Benton, now appeals.
It was held on the former hearing that the facts pleaded in the answer constituted a good defense, and the district court has found these facts to be true. If this finding would close the controversy, the judgment appealed from would not be modified, but important questions involved in the action arising upon the will of A. R. Benton and the trusts created in it are left undetermined, and it is believed that further proceedings should be taken. The will is as follows:
“I, A. R. Benton, do hereby make the following disposition of my property, should I never recover:
“(1) Three .thousand ($3000) dollars life insurance held in Modern Woodmen of ‘America to be divided as follows:
“To father and brother H. H. one thousand dollars— $1000.
“To my son Glenn two thousand dollars $2000 at his majority.
“Ten thousand dollars held in the New York Life disposed of as follows:
“(1) Two thousand dollars to unborn child at its majority.
“(2) Eight thousand to wife all of which is to be held in trust by J. O. and H. H. Benton without bond— they to pay heirs such rate of interest as shall be agreed upon, until children become of age — -and she remains unmarried — in such case money shall fall to my legal heirs.
“The balance of my effects and personal property after all expenses are paid to be divided among my Iieirs and representatives according to the laws of the state of Kansas.
“In case of the death of either of my son Glenn during his minority or in case of the still birth of unborn child or its birth and death before majority all payments of interest to said children or anyone for them or either of them shall cease and the several sums hereby bequeathed them shall be divided as heretofore.
“C. E. Cyrene. A. R. Benton.”
“A. Hooper.
The matters now under consideration relate only to the disposition of the $10,000 referred to in the will. A. R. Benton died about March 1, 1898; his will was admitted to probate and J. 0. Benton was appointed administrator with the will annexed.
The téstator left surviving him, 'his wife, May Benton; his son, Glenn Benton (the child of a former wife) ; his father, J. O. Benton; and his brother, H. H. Benton. Shortly after the death of this testator, his widow gave birth to a child, who died soon afterward. J. 0. Benton and H. H. Benton were partners in business when the will was probated, and the $10,000 referred to was collected by J. O. Benton as administrator and used in that business by the firm. On June 28, 1901, May Benton gave a receipt to J. 0. Benton, administrator, for $2000 as insurance money “willed to unborn child, now deceased,” and another receipt for $8000, in which she recites that it is “left to me in the will of said deceased.” The latter receipt purports to release the administrator and his sureties from all. further liability. On July 10, 1901, the administrator made final settlement in the probate court, wherein he charged himself with the $10,000 received from insurance, and was credited with the 2000-dollar and 8000-dollar items, respectively, as shown in the receipts, which were filed as vouchers. Nothing was paid to May Benton when the receipts were given, nor at any time except interest on the sums named, which was paid from time to time at the rate of seven per cent per annum, fixed by mutual agreement. The receipts were given and used for the purpose of settling the estate. Sometime in the year 1908 May Benton married H. H. Benton, one of the trustees named in the will. H. H. Benton afterward desired to withdraw from the business of J. 0.. Benton & Son, wherein the trust money was invested, and after some negotiations it was agreed that J. 0. Benton should be chargeable with seven-tenths of the trust fund of $8000 and arrears of interest thereon. Thereupon J. 0. Benton gave the obligation upon which this action is based, as follows:
“Onaga, Kan., 2-24-1904.
“In the matter of the trusteeship of H. H. Benton and myself, I hereby acknowledge that I am personally indebted to Mrs. May Benton to the amount of $5993.62, which I agree to pay as soon as I can, together with annual interest at the rate of 6 per cent per annum. J. 0. Benton.”
May Benton receipted to her husband for part of the trust fund. She contends that by this arrangement the defendant, J. O. Benton, personally became indebted to her for the amount named in the instrument, and that the settlement with the trustee was a sufficient consideration therefor. There were no disputed facts, however, and the effect of this arrangement, if upheld, would be to remove that amount from the trust fund and apply it to the use of the plaintiff, May Benton, regardless of the rights of another beneficiary. It is said that this can not affect the rights of Glenn Benton, since he is not a party to the action, but no good reason is perceived why this arrangement should have the harsh effect contended for, and the trustees be left to make another accounting. At the, settlement in the probate court the $10,000 should have been accounted for as having been paid to the trustees, ■ as the will directed, and not to one of the beneficiaries, but no wrong was intended, and no injustice need result. As stated in the original opinion, the facts pleaded showed a want of consideration for the obligation sued upon and the fact that it was given as the .result of negotiations and settlement, probably based upon a mutual misconception, of rights and liabilities, affords no good reason for the diversion of the trust fund or its application otherwise than as the will directs.
As the will was construed in the former opinion, it provides that the 8000-dollar fund should fall to the legal heirs of the testator, when the widow remarries, and this construction is adhered to — but if this were not so, it would still be disposed of in the same way under the concluding clause of the will, which provides for such division upon the death of the son then living or of the posthumous child, and the last-named contingency has happened.
It is contended by the defendant, J. 0. Benton, that the term legal heirs in the connection found in this will does not include the widow, but that if it should be so held, still she is not entitled to share in it until Glenn Benton attains majority or until his death. As the case appears upon this presentation, in the absence of parties necessary to a final determination, it seems that the widow is entitled to share in this fund and that the time has arrived for its distribution, but this can not be finally determined in the absence of necessary parties.
This action was brought upon the theory that the trust, so far as the plaintiff was concerned, had terminated, and it was defended upon the theory that it was only necessary to show that the obligation related to a trust fund which could not be disposed of in the manner attempted. In our view the real matter for determination is the disposition of the trust fund, and although recovery could not be allowed upon the instrument itself, the plaintiff could, if the necessary parties had been before the court, have been allowed to recover her share of the trust fund. Section 40 of the civil code provides that the court must bring in other parties when necessary to a determination of the controversy, and this should be done. H. H. Benton, the other-trustee, and Glenn Benton, the minor beneficiary, are such necessary parties.
No claim appears to be made respecting the $2000 bequeathed in trust for the unborn child, but it appears to have gone into the business of Benton & Son, with the $8000. Upon the birth and subsequent death of that child, this bequest, under the last clause of the will, should be divided between the plaintiff and Glenn Benton. We find no evidence that it has been paid over, and the trustees should account for it.
The judgment for the defendant, J. O. Benton, ■ should be set aside and an order entered to bring in other necessary parties; an account should be taken of the trust funds, and interest due thereon, and distribution provided for, and judgment rendered according to the rights of the parties as they may be made to appear. The cause is remanded for further proceedings accordingly. | [
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The opinion of the court was delivered by
Burch, J.:
The Home Lumber and Supply Company, as a subcontractor, brought an action to'foreclose a mechanic’s lien upon a schoolhouse erected for the school district, as owner. The general contractor, G. F. McCurley, and several subcontractors claiming liens were made parties. Among the latter were W. L. English, doing business as the Globe Cornice Works, C. S. Pratt and J. E. Blakeman. Judgment was rendered for the foreclosure of the plaintiff’s lien and for the foreclosure of the liens of the other subcontractors, and the school district appeals.
The plaintiff furnished material both to McCurley and to Blakeman. No personal account was kept with either one. All items were entered under a general account known as “School District No. 1 contract,” with a notation showing whether delivery was made to McCurley or to Blakeman. The plaintiff claimed a lien for the balance due on the account as an entirety. The statute does not authorize a lien in favor of one who is a subcontractor under a subcontractor (Nixon v. Cydon Lodge, 56 Kan. 298) and it is argued that the plaintiff’s right to a lien was forfeited by the inclusion of nonlienable items in the lien statement. There is nothing in the abstract to show that this matter whs presented to the trial court. It is not referred to in the oral opinion delivered by the district judge in deciding the case. The only question seems to have been whether or not the balance due on the Blakeman items should be subtracted from the plaintiff’s claim, and Blakeman be giyen a lien for such balance instead of the plaintiff. However, treating the question as properly raised, the plaintiff did not forfeit its right to a lien. There was no confusion in or falsification of the. account or of the lien statement. The two classes of items were separated on the face of each. No purpose to deceive or to defraud is indicated and no embarrassment to the owner or to others could well result from the excessive claim. The plaintiff’s manager testified that he did not at any time look to Blakeman personally, but that from the arrangement he had with McCurley he understood that all the material furnished for the building went to one general account for which McCurley as general contractor was responsible. The plaintiff acted throughout consistently upon this theory and was simply mistaken in the extent of its right. The statute of this state is very liberal. It simply requires a verified statement setting forth, in the case of a contractor, “the amount claimed and the items thereof, as nearly as practicable” (Civ. Code, § 650), and in the case of a subcontractor, “the amount due from the contractor to the claimant, and the items thereof as nearly as practicable” (Civ. Code, §651). Under this statute nothing short of bad faith in the inclusion of nonlienable items will defeat a lien. Such is the trend of all the modern authorities. (20 A. & E. Encycl. of L. 411, and authorities cited in note 6; 27 Cye. 203; Boisot, Mech. Liens, § 425; Bloom, L. of Mech. Liens, § 414; Phillips, Mech. Liens, 3d ed., § 335; Rockel, Mech. Liens, § 115.)
It is said that the plaintiff’s lien was not filed in time. The court found otherwise upon slight, but sufficient,' evidence. The question being one of fact the ruling will not be disturbed. . Also, it is said that the plaintiff’s lien statement was not introduced in evidence. The court and all the parties dealt with it as if it were properly in evidence, and the omission formally to introduce it was not prejudicial.
The Blakeman, English and Pratt lien statements are attacked as not properly itemized. These parties were subcontractors who had contracted to do specific portions of the work for stipulated sums. Their work was completed according to contract and their statements gave the contract price, extra items, where there were any, and credits for payments received. This was sufficient. The third paragraph of the syllabus of the decision in the case of Nixon v. Cydon Lodge, 56 Kan. 298, reads as follows:
“Where a subcontractor enters into a contract for the performance of certain work upon the building at a specified price, and the work is completed within the contract price,- he néed not, in filing a statement for a lien, separate and state the different elements which enter into his claim.”
Notices of the filing of the liens of the parties just referred to were not given immediately to the owner. In one instance the notice was delayed 137 days, and it is claimed these liens are void for want of notice.
The statute fixes no time within which notice shall be served. Therefore a reasonable time is contemplated. What time is a reasonable time in a given case must depend upon all the circumstances. In the case of Deatherage v. Henderson, 43 Kan. 684, the opinion reads:
“Statutes relating to liens for mechanics and materialmen should be liberally construed so -as to protect, as far as possible, within the terms of the statute, the rights and equities of such persons. ... A more reasonable construction of the statute would be, to give the subcontractor a reasonable time, after filing his lien, to furnish a copy thereof to the owner or- agent of the premises. What would be a reasonable time must be determined by the court or jury trying the case under the attending circumstances. But the subcontractor must be diligent in serving his notice after filing his lien. (p. 690.)
In this case the school district knew the amounts of the subcontractor’s claims and understood that liens would be filed if the claims were not adjusted. Later it obtained accurate knowledge of the liens which were filed and asked the contractor to check them over and see that they were correct (which he did) so that the balance of the contract price could be applied to their discharge. For a time, at least, the school district contemplated bringing suit on the contractor’s bond to protect all lines. Attorneys for the lienholders communicated with the school board and its attorneys about their claims. The supposition was that an adjustment could be reached without litigation and so time was suffered to elapse without further steps being taken to perfect the liens. It clearly appeared that the school district suffered no injury whatever from the failure to receive earlier formal notice. Under these circumstances it can not be said that the trial court erred in holding that the school district had no reason to complain and that the notices were served in time.
Minor matters discussed in the briefs do not require comment, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This action was for conversion of personal property, mortgaged by the plaintiff, Beach, to the defendant, Fireovid. The defendant took possession of the property under the mortgage without the consent of the plaintiff, who demanded its return, claiming that the mortgage was void because it was not signed by his wife, the property being exempt from seizure upon execution. The defendant pleaded the mortgage and the note which it secured, and prayed for judgment upon the note, after crediting the value of the property taken.
The court found that the property mortgaged was exempt from execution, and held that the mortgage, which had not been signed by the wife of the mortgagor, was void, as claimed. The court also found that the defendant, in the absence of the plaintiff and without his consent, had taken possession of the mortgaged property, claiming the right to do so under the mortgage, the debt being past due, but found furthex" that the plaintiff afterward told the defendant to take the property and that it was all he would ever get.. This was held to be a consent that the defendant should keep the property and apply its value on the debt. This was done, and upon the trial the court credited the value of the property upon the note, less the amount of certain liens paid by the defendant, and rendered judgment against the plaintiff for a balance of $76.46 remaining due upon the note.
The statute provides:
“It shall be unlawful for either husband or wife (where that relation exists) to create any lien, by chattel mortgage or otherwise, upon any personal property owned by either or both of them, and now exempt by law to resident heads, of families from seizure and sale upon any attachment, execution or other process issued from any court in this state, without the joint consent of both husband and wife.” (Laws 1901, ch. 103, § 1, Gen. Stat. 1909, § 5235.)
It is contended that this exemption ■ can not be waived by the husband alone, so as to make- such attempted lien effectual after the' maturity of the debt, the instrument being void. On the other hand, the defendant’s contention is that the property was simply turned over upon the indebtedness, and that there is nothing in the statute to prevent the owner of such property from using it to pay a debt.
We find nothing in the statute to prevent the owner of exempt personal property from using it to pay his debts. He may sell it and apply the proceeds to that purpose or he may reach the same end by transferring it directly to his creditor. If the creditor is found in the wrongful possession of such property, the debtor may still have it applied upon- the debt by mutual agreement, made in good faith. The wrongful possession can not abridge the right of the owner thus to pay his debt, nor prevent the creditor from accepting it, with the consent of the owner. The mortgage was void when made, and could not be made valid by any act of the husband afterward without the wife’s consent. It may therefore be eliminated from consideration, and there is left the debt, the wrongful possession of the property by the defendant, the agreement that it should be applied , upon the indebtedness, and the application made accordingly. When so viewed, the transaction is not obnoxious to the statute. Nothing is found in the title or body of the act restricting the absolute sale of exempt property by the owner.
It was held in Michigan, in construing a similar statute, that it only referred to such conveyances or conditional sales as are intended as security or which give a lien for that purpose, and not to absolute sales. (Holman v. Gillette, 24 Mich. 414. See, also, Kroenert v. Mead, 59 Kan. 665.)
The plaintiff did not give the defendant a lien upon the property, in the conversation referred io above, but turned it over to him in payment. This was, in effect, not a mortgage, but a sale.
The foregoing is written upon the theory adopted by the trial court and conceded by both parties — that the mortgage was invalid as to all the property, but. this is doubtful. The article of the largest value included in the mortgage was an automobile. This was-held to be exempt because the plaintiff was a physician, and the automobile was used in carrying on his business. The money secured by the mortgage was borrowed for the purpose of paying for the automobile, and was so used. If the mortgage should be treated as security for the purchase money, the rights of the wife did not attach to that article, and her signature to the mortgage was not necessary. {Boggs v. Kelly, 76 Kan. 9.) This principle has been applied to mortgages given to third persons who furnish the money to purchase the property, where it was so furnished and applied as a part of the same transaction. (1 Jones, Mort., 6th ed., § 472; 6 Cyc. 999, note 69; Strickland v. Minnesota Type-Foundry Co., 77 Minn. 210.) But as the correctness of the conclusion that the mortgage was void as to all the property was not challenged, this question is not decided.
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Per Curiam:
The validity of a tax deed more than five years old is involved. On its face it shows a sale of land to the county in September, 1894, for $10.43; an assignment of the certificate by the county clerk, on August 2, 1902, for $16.43; the payment of the subsequent taxes .by the purchaser for the years 1894 up to and including 1900, amounting to $38.64; and the consideration recited in the deed, issued August 6, 1902, is $54.84. By the specific recitals it appears that the interest of the county was assigned for an amount at least $6 less than the cost of redemption, and this patent defect is of itself sufficient to avoid the deed. (Colline v. Jolley, 79 Kan. 695.) This substantial deficiency can not be explained, nor can a sufficient amount be found by a reference to the other recitals nor by any rational method of computation, as was done in Milburn v. Beaty, 81 Kan. 696. The recitals are not consistent with each other, and when all are considered it can not be said that an amount equal to the cost of redemption was paid.
The court rightly held the deed to be void on its face. The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This action was brought by Christ Lehrling to quiet title. In August, 1892, he was living upon the land in controversy with his second wife. About that time he left hurriedly for Germany in anticipation of divorce proceedings, leaving the farm and personal property thereon in the care of his three sons. The sons and a daughter were children of a former wife and were adults. Soon after he left this country his wife commenced an action of divorce, and his son Carl, then living upon the farm, was appointed receiver of his property in the divorce action. Negotiations followed between the sons and their stepmother resulting in a proposition by her to accept $1800 and the payment of costs and attorney’s fees in settlement of her claim for alimony. The children communicated this offer to their father in a letter, signed by all of them, in which they advised him to accept the proposition and enclosed a deed duly prepared for him to execute to convey the land to them in order that they might borrow the sum of $1800 upon it by mortgage, which they proposed to do, and to use the proceeds, together with money from the sale of wheat then upon the farm, to pay the claim of their stepmother and the expenses and some other debts. The letter referred to the expenses of litigation and the importance of immediate action, asking him to execute and return the deed as soon as possible if he approved the settlement. On receipt of this letter, he executed the deed as requested and returned it to one of his sons. It was in form a warranty deed, reciting a consideration of $4000, purporting to convey the farm to his sons and daughter. It was then executed by his wife and placed upon record. The young people then borrowed the sum of $1800 and gave their promissory note, together with a mortgage upon the land, as security, and paid the money over to their stepmother. Later the divorce was granted and the settlement of the property rights was approved. The farm was cultivated by the sons, the wheat marketed, expenses and debts paid, and some remittances made to the father for his expenses. In April, 1893, Christ Lehrling returned to his home, resumed possession of the farm, and leased a part of it to his son Carl. He was afterward married to the appellee, Emilie Lehrling, and continued in the open and exclusive possession of the land until his death, which occurred after the trial in the district court. The facts stated thus far are undisputed. The appellants testified that at the time of leaving home their father told them to take the property and do the best they could with it, and that they said “all right, we will keep you as long as you live. You will not have to suffer as long as we have got anything.” This was denied by Christ Lehrling, although he testified that they were to take ■care of the property.
The answer pleaded that the appellants were the owners of the land under the deed referred to, subject to the use thereof by the father during his natural life. He paid the mortgage, taxes and all expenses after his return, except what had been previously paid out of the proceeds of his property.
The reply consisted of a general denial, and in substance alleged that the deed was made upon the agreement that the grantees therein should obtain a loan upon the land to pay alimony to the grantor, and that they would reconvey the land subject to the mortgage to be given to secure the loan. It was also alleged that there was no other consideration given for the deed except the agreement as stated.
The court found the facts in substance and effect as above stated, and also found that none of the appellants paid or promised to pay anything for the conveyance and that they did not agree to support and maintain their father as a consideration therefor, but in taking the deed and making the mortgage acted as his representative and agent, and concluded as matter of law that the appellee was entitled to the relief prayed for and that the deed should be canceled.
Numerous assignments of error are presented, many of which relate to the admission of testimony, which are unimportant because there is no dispute concerning the material facts except as to the conversation or understanding respecting the property just before Mr. Lehrling departed for Germany, and the objections presented do not affect the evidence or findings upon that matter. The purposes of the parties in executing and taking the deed sufficiently appear from the letter referred to and there is no substantial conflict of evidence concerning any material transaction afterward.
While the deed is sufficient to show title in the grantees in the first instance, it is apparent from the letter, which is too long to be inserted here, that it was made to facilitate the loan to meet the emergency referred to therein.- Had Christ Lehrling made a deed direct to the mortgagee to secure the loan, it would have been treated, under well-recognized principles of equity, as a mortgage. The intervention of third parties was manifestly for convenience and to save time. The father was in Germany, and the children were at home where the business must be done. The plan did not seem unreasonable. Expenses would necessarily accumulate if there should be delay in executing the mortgage and procuring the loan. The father was in trouble, far from home, and naturally desired to save as much of his property as possible after satisfying the proper claims of his wife; the necessity of speedy action was apparent and was emphasized in the letter. He acted promptly, as his children requested, and in the confidence that a father may be presumed to have in his children, and this ought not to operate to his loss. While the court' did not find that he had demanded a reconveyance before bringing the suit, the fact that the appellants when sued set up an adverse claim is sufficient to show his right of action. (Civ. Code, § 618; Neve v. Allen, 55 Kan. 638.) Claiming to own the land absolutely, as they do, it must be presumed that any such demand would have been in vain. (C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 49 Kan. 399.)
The appellants rely upon the provisions of the statute requiring that express trusts shall be shown by writing, and insist that the letter is insufficient to meet the statutory requirements. The letter and deed however, in connection with all the circumstances, are sufficient to show a trust by implication of law. The appellants having asked for the conveyance for the purposes stated in their letter, and their request having been complied with, a trust may fairly be implied to hold the legal title for the purposes named. A trust arising by implication of law is excepted from the statutory rule requiring a writing signed by the party creating a trust. (Gen. Stat. 1868, ch. 114, § 1, Gen. Stat. 1909, § 9694.)
“Implied trusts are those that arise when trusts are not directly or expressly declared in terms, but the courts, from the whole transaction and the words used, imply or infer that it was the intention of the parties to create a trust. Courts seek for the intention of-the parties, however informal or obscure the language may be; and if a trust can fairly be implied 'from the language used as the intention of the parties, the intention will be executed through the medium of a trust.” (1 Perry, Trusts, 6th ed., § 112.)
Trusts are often declared in transactions between persons standing in confidential relations, as parent and child, that would not be implied between strangers. (Koefoed v. Thompson, 73 Neb. 128; De Mallagh v. De Mallagh, 77 Cal. 126; 115 Am. St. Rep. 793, note.)
“Where one sustaining such relation makes use of it to promote his own interests, even though a charge of fraud could not be sustained, a trust by implication of law will be decreed.” (1 Beach, Trusts, § 105.)
Trusts may be raised in equity in respect to property which has been acquired by fraud, or when though acquired originally without fraud it is against equity that it should be retained. (-2 Washburn, Real Prop., 6th ed., § 1430.)
“When a person through the influence of a confidential relation acquires title to property, or obtains an advantage which he can not conscientiously retain, the court, to prevent the abuse of confidence, will grant relief. . . . The principle, that when one uses a confidential relation to acquire an advantage which he ought not in equity and good conscience to retain the court will convert him into a trustee, and compel him to restore what he has unjustly acquired, or seeks unjustly to retain, has frequently been applied to transactions within the statute of frauds. The rule governing dealings between persons standing in fiduciary relations is applicable to parent and child, and courts carefully scrutinize them, to protect the latter against any undue advantage being taken by the former. (Archer v. Hudson, 7 Beav. 551; Hoghton v. Hoghton, 15 Beav. 278; Wright v. Vanderplank, 8 DeG., M. & G. 133.) The trust sought to be enforced in this case does not arise exclusively from the agreement, but from the agreement in connection with the other circumstances, the interest of the plaintiff in the land, the confidential relation of the parties, the youth and inexperience of the plaintiff, the fact that he acted without independent advice, and the injustice which would result in cast the agreement should not be enforced.” (Wood v. Rabe et al., 96 N. Y. 414, 425, 426.)
In the case from which the above quotation is taken the mother was held to be a trustee for her son, in respect to- property to which she had acquired the legal title for his benefit. The opinion has been cited in numerous decisions and textbooks and states principles of the clearest equity. It seems unnecessary to cite further authorities. The purposes for which the conveyance was made having been accomplished, the securities upon which the appellants were liable having been satisfied, and all expenses paid, the appellants had no further right to hold the legal title. Having set up in their answer an adverse interest by claiming title in fee, the judgment against them was proper, and is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The Chicago Lumber and Coal Company furnished material to Colby, a contractor with J. E. Smith, which was used in the improvement of lots one, two, three and four,, block eleven, in Grainfield, owned by Smith. The improvements consisted of a house, cement walks around the house, and a sidewalk in front of the lots. The lumber company filed a subcontractor’s lien to secure payment of a balance due upon the purchase price of the material it furnished. In an action brought for the purpose the lien was foreclosed, and Smith appeals.
Two assignments of error are made: That the court erred in overruling a demurrer to the petition, and that the court erred “in rendering the judgment it rendered.”
More than a year elapsed between the ruling on the demurrer and the taking of the appeal. (Bank v. Harding, 65 Kan. 655.) The abstract recites that a motion for a new trial was filed, but the grounds are not stated, and the denial of the motion is not assigned as error. (Gas Co. v. Dooley, 78 Kan. 758.) The assignment that the court erred in rendering the judgment which it rendered merely says the judgment is wrong, and does not specify any error. (Rule 9 of this court; Brown v. Rhodes, 1 Kan. [Dass. ed.] 339; Green v. Dunn, 5 Kan. 254, 262; Gamble v. Hodges, 17 Kan. 24.) Consequently there is nothing for the court to consider. However, a few matters discussed in the appellant’s brief will be noticed.
It is said there is no evidence to sustain any lien. Colby went to the office of the lumber company and there had a conversation with the company’s agent, the effect of which appears from the following testimony:
“Ques. Do you remember the occasion of J. E. Smith building a house on some lots in Grainfield? Ans. I do.
“Q. Did you have any arrangement with Mr. Colby on behalf of your company for the furnishing of materials to construct that building? A. Well, he just merely came and got it about as he wanted it. There was no special arrangement.
“Q. What was the first talk you had with Mr. Colby with reference to furnishing materials for the building? A. He came to the office and said he had a contract to build this Smith house. He wanted material; we went out into the yard and looked over the stuff, and that was about all there was to it. He came and got it as he wanted it.
“Q. Mr. Reynolds, when Mr. Colby arranged to purchase this stuff from you, was the talk limited to a house, or did it include both a house and a sidewalk? A. He did n’t say how much stuff he was' going to get; there was no limit to it. The sidewalk was not mentioned.
“Q. What did he say he was going to build? A. I don’t know that he told me. He said he had Jesse Smith’s contract.”
The material furnished under these circumstances was used in the manner stated above. Smith was erecting no ’Other building in Grainfield, and Colby had no other contract, at that time. This evidence was ample to sustain a lien.
“Where materials are furnished and placed in a building, if there be nothing showing a different intention, a jury would be warranted in finding that they were furnished to be used in such building. So if it appear that materials furnished were used in the erection of the building on which a lien is claimed, unless it is shown that they were intended for another purpose, it will be presumed that they had been contracted for to be used in the building.” (Deatherage v. Henderson, 43 Kan. 684, 688.)
It was not essential that Colby should describe or that the lumber company’s agent should know on what lots the structure was to be erected.
“It is not essential, however, that there should be a contract specifically describing the lots or building, nor that Howell Brothers should have known the exact location of the same.” (Wilson v. Howell, 48 Kan. 150, 152.)
Nor was it essential that the lumber company’s agent should know the precise character of the contemplated improvement. It was enough for him to know of the original contract and to know the material was to go to the betterment of Smith’s estate.
“The statute provides that any person who shall furnish any such material under contract with the contractor may obtain a lien. This means more than that an ordinary contract shall exist between the seller and purchaser that the purchaser shall pay the contract price; it means that the subcontractor shall contract with reference to the original contract; that is, he must have knowledge of such original contract, and that the material to be furnished is to go to the betterment of some particular estate.” (Manufacturing Co. v. Best, 63 Kan. 187, 192.)
The expression usually is that the subcontractor must furnish the material with the understanding that it is to be used in a particular building. (Sturges v. Green, 27 Kan. 235; Wilson v. Howell, 48 Kan. 150, 152.) That, however, is merely one way of stating the principle involved. The principle is satisfied if the understanding be that the material is to be used in making an improvement for a particular person, or upon a particular tract.
It is said there is no evidence to sustain a lien for any of the walks, because they were not mentioned. This point is covered by the observations already made. The subcontractor is not obliged to know whether the material he furnishes goes into a single structure, a principal structure with appurtenances, or several separate structures. If the material be furnished and used for the betterment of a particular estate, under a contract with the contractor, the statute is satisfied. (Phillips, Mech. Liens, 3d. ed., § 126.)
It is said that the single lien filed was ineffectual. Since the lumber company’s contract was single and entire, it was entitled to file a single lien for all the material furnished, irrespective of the number of forms which the improvement took and irrespective of the number of contiguous lots into which the improved tract was divided. Thus, in the case of Carr v. Hooper, 48 Kan. 253, material was furnished and labor performed for plastering five houses, building five chimneys and constructing five cisterns. A single lien statement containing a list of the items of material and labor furnished was sustained. In the case of Mulvane v. Lumber Co., 56 Kan. 675, several buildings were erected, on several contiguous lots constituting one tract. A single lien was allowed.
The contractor’s original contract with the owner covered the house only. The contract for the walks was made afterward. Hence it is said there can be no lien for the walks. Colby at all times occupied the relation of contractor to the owner. Whether that relation was sustained through an original contract alone, an original contract with subsequent modifications, or successive contracts, was not important. He could make a subcontract. The subcontractor’s rights accrue under his own contract duly made with a contractor. In this case the subcontract was single and entire, and under it the subcontractor had the right to continue to furnish material until the contractor’s requirements were satisfied and then file a single lien for the whole account.
In the case of The Jones & Magee Lumber Co. v. Murphy et al., 64 Iowa, 165, a contractor built a house, and afterward', under a subsequent contract, a porch to the house. A subcontractor furnished the material for both structures, and the question was whether his notice of a lien was served in time. The court said:
“We think that the plaintiff very properly concluded that one notice was sufficient for all, and that it had thirty days from the furnishing of that item of lumber which was the last of all. Where a single building is erected by one contractor, though, as often happens, under more than one contract, we think that it would be a great hardship upon the subcontractors to require, them to take notice of, and bear in mind, at their peril,, precisely where, in the construction of the building'and use of material, one contract ends and the other begins.. If they could watch the progress of the work day by day with the contractor’s contracts in their hands,, they probably could not always determine the facts, requisite for their protection. Materials are bought in advance of the actual work in which they are used,, and frequently, no doubt, are changed and mixed beyond identification. We .think that the notice, was., served within the proper time.” (p. 167.) •
The foregoing disposes of the principal questions: argued in the appellant’s brief. As indicated at the beginning, any consideration of the merits of the case is gratuitous. Therefore the discussion will not be extended to matters of minor importance.
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The opinion of the court was delivered by
Mason, J.:
Hutchings, Sealy & Co. brought action against the Missouri, Kansas & Texas Railway Company, alleging that the plaintiffs had advanced money upon certain bills of lading which the defendant had issued, by'its assistant general freight agent, without the actual receipt of the goods therein described, and asking judgment for the loss they had sustained in consequence thereof. Among other matters, the defendant in its answer set out that the bills of lading referred to were issued in Missouri, and that therefore the rights of the parties are governed by the laws of that state; that there the law is that a bill of lading issued by the agent of a railroad company without the actual receipt of goods is void, and that the company can not be held liable thereon by way of estoppel or in any other manner; that this condition of the law results from statutory provisions, which are quoted in full, and from a decision of the supreme court, which is described only by the title of the case and the volume and page of the reports in which it is to be found, namely, Louisiana National Bank of New Orleans v. Laveille, et al., 52 Mo. 380. A demurrer to this portion of the answer was sustained by the district court. This ruling was reversed on appeal on the ground that the allegation as to ‘the effect of the decision of the supreme court must be taken as true, inasmuch as the language of the decision was not pleaded and the Kansas courts can not take judicial notice of it. (Railway Co. v. Hutchings, 78 Kan. 758.) The plaintiffs then filed a reply which, in addition to a general denial, quoted in full'- the opinion in the Laveille case, and also one subsequently handed down by the Kansas City court of appeals of a contrary tendency, and added that the latter decision “states the law in the state of Missouri.” A demurrer to this reply was sustained, and the plaintiffs appeal.
The plaintiffs advance the theory that, inasmuch as the reply states what the law of Missouri is, an issue of fact is raised upon which they are entitled to introduce evidence, regardless of the interpretation placed upon the Missouri decisions referred to. We do not accept this view. By the weight of authority, and, as we think, by the better reason, the court ordinarily determines the law of a sister state without the intervention of the jury, notwithstanding the question is one of fact. (4 Wig. Ev. § 2558; Christiansen v. Graver Tank Works, 223 Ill. 142, 150, 151, and authorities there cited; 7 A. & E. Ann. Cas. 74, note.) Here the pleadings set out all of the reported Missouri decisions on the subject. The case is not one where any substantial aid can be had from oral testimony. There is nothing essentially local in the matter involved. Courts elsewhere are divided as to the effect of the issuance of a bill of lading where no goods are received. Two conflicting views are entertained. The opinion of the court of appeals shows clearly that in Missouri there is no general acceptance of either. .In such a situation there would be no advantage in calling Missouri lawyers as witnesses; they could only give their personal judgment oh a debatable question of law. If the decision of the supreme court of Missouri really covers the matter in controversy, that ends the inquiry. Whether it does so is a question to be determined by the court. • If it is found not to be conclusive, the court must then decide what shall be regarded as the law of Missouri in view of the decisions and statutes pleaded.
“That when it becomes necessary to establish the law of a foreign country it must be proved as facts are proved there is no doubt, but when, after such proof is given, the questions involved depend upon the construction and effect of a statute or judicial opinion, we think those questions are for the court and not questions of fact at all.” (Bank of China, etc., v. Morse, 168 N. Y. 458, 470.)
In Massachusetts a distinction is made upon grounds thus stated, which we regard as not sufficiently cogent to change the general rule:
“Where the evidence of foreign law consists entirely of statutes or reports of judicial decisions, the constructions and effects of the statutes and decisions are usually for the court alone. . . . Where the decisions are conflicting, or where inferences of fact must be drawn, the question of what the law is becomes one of fact.” (Hancock National Bank v. Ellis, 172 Mass. 39, 49.)
The conflict of authority upon the question whether a railroad company can ever be held liable upon a bill of lading where it has received no goods is fully discussed in the opinion written at the former hearing of this case. (Railway Co. v. Hutchings, 78 Kan. 758.) Notes on the subject are to be found in 6 L. R. A., n. s., 302; 22 L. R. A., n. s., 828; 7 A. & E. Ann. Cas. 731; and 4 A. & E. Encycl. of L. 533. The supreme court of Missouri, in the decision already referred to (Louisiana National Bank of New Orleans v. Laveille, et al., 52 Mo. 380), approved and followed the authorities and the general reasoning upon the strength of which the doctrine has been established in many jurisdictions that a carrier is not liable upon a bill of lading, even to an innocent purchaser, unless the goods it describes have actually been delivered — authorities and reasoning which this court has found not persuasive. That decision therefore determines that the law of Missouri forbids a recovery by the plaintiff, Unless a fair distinction can be made between that case and' this. If so, it must be on one of the following theories: (1) That the Missouri statute referred to effects a change in the rule; (2) that, as the bill of lading involved in the Missouri case was issued by the agent of the owner of a ship, the rule established does not necessarily apply to such an instrument when issued by the agent of a railroad company; (3) that, even if it applies where a bill of lading is issued by an ordinary agent of a railroad company, it has no application here because the act of the assistant general freight agent was practically the act of the corporation itself.
The statute referred to was enacted in 1869, before the Laveille case was decided; but it was not involved in that decision, for the bill of lading there considered was issued at New Orleans, and although in fact Louisiana at the time had a similar statute, which has since been held not to change this rule (Henderson v. Louisville & N. R. Co., 116 La. 1047), no reference was made to it in the pleadings or the evidence, and the courts of Missouri do not take judicial notice of the statutes of other states (13 A. & E. Encycl. of L. 1058, note 4) or presume that they are the same as those of their own jurisdiction (13 A. & E. Encycl. of L. 1061, note 2). The statute contains these provisions:
“No . . . officer or agent of any railroad . . . company . . . shall sign or give any bill of lading . . . for any merchandise or property, by which it shall appear that such merchandise or property has been shipped on board of any . . . railroad car . . . unless the same shall have been actually shipped and put on board, and shall be at the tme actually on board or delivered to such . . . car . . . to be carried and conveyed as expressed in such bill of lading.
“All . . . bills of lading . . . issued or given by any . . . railroad . . . company, for goods, wares, merchandise, grain, flour or other produce, shall be and are hereby made negotiable by written indorsement thereon, and delivery in the same manner as bills of exchange and promissory notes; and no printed or written conditions, clauses or provisions inserted or attached to any such . . . bills of lading . . . shall in any way limit the negotiability or affect any negotiation thereof, nor in any manner impair the right and duties of the parties thereto, or persons interested therein; and every such condition, clause or provision purporting to limit or affect the rights, duties or liabilities created or declared in sections ... of this chapter, shall be void and of no force or effect.
“All bills of lading . . . given by any . . . railroad . . . company, may be transferred by indorsement in writing thereon . . . and any and all persons to whom the same may be so transferred shall be deemed and held to be the owner of such goods, wares, merchandise, grain, flour or other produce or commodity, so far as to give validity to any pledge, lien or transfer given, made or created thereby, as on ■the faith thereof, and no property so . . . deposited, as specified in such bills of lading . . . shall be delivered, except on surrender and cancellation of such receipts and bills of lading: Provided, however, that all such . . .- bills of lading, which shall have the words ‘not negotiable’ plainly written or stamped on the face thereof, shall be exempt from the provisions of sections ... of this chapter.
“Any warehouseman, wharfinger, forwarder or other person who shall violate any of the provisions . . . of this chapter shall be deemed guilty of a criminal offense . . . and . . . every person . . . aggrieved by the violation of any of the provisions of said sections may have and maintain an action of law against the person or persons, corporation or corporations, violating any of the provisions of said sections, to recover all damages . . . which he . . . may have sustained by reason of any such violation.” (3 Rev. Stat. Mo. 1909, §§ 11,955-11,958.)
The particular clause requiring interpretation is that providing that bills of lading “shall be . . . negotiable by written indorsement thereon, and delivery in the same manner as bills of exchange and promissory notes.” (§ 11,956.) The question is whether the Missouri legislature intended to make bills of lading strictly negotiable — that is, to give them the quality of investing an innocent purchaser with rights not available to the original holder. The supreme court of the United States has decided to the contrary (Shaw v. Railroad Co., 101 U. S. 557), and its decision has been followed by the supreme courts of Minnesota, Iowa and Louisiana. (National Bank of Commerce v. Chicago, Burlington & N. R. Co., 44 Minn. 224, 234; First Nat. Bank v. Mt. P. Milling Co., 103 Iowa, 518; Lallande v. His Creditors, 42 La. Ann. 705.) The theory of those cases is that “negotiable,” as used in the statute, means capable of being transferred by indorsement and delivery, so as to give the indorsee the right to sue in his own name. That interpretation leaves this portion of the statute without force. In Missouri bills of lading were already negotiable in that sense. They were transferable by indorsement and delivery (Vallé et al. v. Cerré’s Adm’r, 36 Mo. 575; The Davenport National Bank v. Homeyer et al., 45 Mo. 145; Bank v. M., K. & T. R’y Co., 62 Mo. App. 531, 539), and the assignee could sue in his own name (Walker v. Mauro, 18 Mo. 564; Merchants Bank v. U. R. R. and T. Co., 69 N. Y. 373). This condition of the law of Missouri prior to the enactment in question appears from the decisions cited. If we are not authorized to take judicial notice of them, the same result follows from the presumption that the law on the subject was the same in Missouri as in Kansas. It seems unlikely that the elaborate provisions of the statute regarding negotiability were intended merely as declaratory of the existing law. We are led to adopt what appears to us the more natural conclusion — that they were intended to have the same effect as the statutes of other states which plainly make bills of lading negotiable in the stricter meaning of the term. Such statutes are construed and applied in these cases: Greenbaum Bros. & Co. v. Megibben, 73 Ky. 419; Tiedeman v. Knox, 53 Md. 612; William T. Hardie & Co. v. Vicksburg, S. & P. Ry. Co., 118 La. 253.
The decision of the federal supreme court in the Shaw case is largely based upon the argument that bills of lading are so little adapted to receive the attributes of full negotiability that a purpose to give them that quality is not readily to be inferred. This argument appeals to us with the less force because this court is aligned with those which maintain, against the numerical weight of authority, that an innocent purchaser of a" bill of lading should stand upon a better footing than the original holder. That a number of states have by unambiguous legislation made bills of lading strictly negotiable tends also to weaken the effect of the argument. In the opinion in the Shaw case it was said:
“It can not be . . . that the statute which made them [bills of lading] negotiable by indorsement and delivery,- or negotiable in the same manner as bills of exchange and promissory notes are negotiable, intended to change totally their character, put them in all respects on the footing of instruments which are the representatives of money, and-charge the negotiation of them with all the consequences which usually attend or follow the negotiation of bills and notes. Some of these consequences would be very strange, if not impossible. Such as the liability of indorsers, the duty of demand ad diem, notice of nondelivery by the carrier, &c.” (Shaw v. Railroad Co., 101 U. S. 557, 565.)
Of this suggestion it is said, in section 349 of Denis on Contracts of Pledge:
“But the object of such a law is simply to make of the transferee-of a bill of lading a holder for value and cut off the equities of the true owner, just as in the case of a transferee of a bill of exchange or promissory note; in other words, to render bills of lading negotiable paper. Can not the statutory law do in that respect, for bills of lading, what the common law, the mere law of custom, has done for the ordinary negotiable paper? The statute of Maryland has rendered bills of lading fully negotiable, as we will see presently. It is the law in France and other continental countries of Europe, under a different system. It is the old com mercial law of the oldest commercial states of Europe. The reason of such a rule, where it exists, is the same as the reason of the negotiability of bills of exchange and promissory notes — to promote commerce by facilitating financial operations.”
The uniform bill of lading act, recommended by the conference of commissioners on uniform state laws, contemplates the issuance of negotiable bills of lading which, in the hands of an innocent purchaser, shall be conclusive against the carrier.
Treating the bills of lading as strictly negotiable, the fact that they were issued without the actual receipt of the goods constitutes no defense against an innocent purchaser. It amounts merely to a failure of consideration. As they were executed by an agent charged with the execution of sfich instruments, they are binding upon the company, as far as is necessary to protect intervening rights, notwithstanding the agent’s breach of duty. (10 Cyc. 1174; 1 A. & E. Encycl. of L. 849; 7 A. & E. Encycl. of L. 794, note.)
The rule is not changed by the fact that the statute makes it a criminal offense for any agent of a railroad company to issue a bill of lading unless the goods-have actually been received. Such an act would be wrongful without the statute; that it is penalized does not alter the situation so far as the rights of third parties are concerned. As was said of a similar enactment in a dissenting opinion in Hunt & Macaulay v. Mississippi Central Railroad Company, 29 La. Ann. 446:
“The animus of this statute is unmistakable. It was intended to protect both the carriers and the public— the former by punishing any persons in their employ for issuing false bills of lading or receipts, and the latter by putting such bills or receipts upon the same footing as commercial paper, and protecting the holder in good faith with all the privileges and immunities given to bills of .exchange and promissory notes.” (p. 463.)
In William T. Hardie & Co. v. Vicksburg, S. & P. Ry. Co., 118 La. 253, 258, this dissenting opinion was approved, the decision of the court being overruled.
We need not determine whether the Laveille case can be distinguished upon the other grounds mentioned, but some additional suggestions in that connection maybe pertinent.
In Daniel on Negotiable Instruments it is said-:
“The master of -a ship is generally separated from his principals, and beyond their supervision and control. Roving the seas in commercial enterprises, and often thousands of miles apart from those who trust him, the policy of the law might well shield his principals from responsibilities which, were he in a position under their inspection and subject to their superintendence, it might, withhold. And in respect to railroad corporations, express companies, and other carriers by land, whose agents are within view of superior officers, and subject to 'speedy removal for delinquencies, it might be well contended that their shipping agents, when acting within the apparent scope of authority, would bind their principals, although in the particular case violating actual authority, and committing a breách of trust.”- (Vol. 2, 5th ed., § 1733a.)
The contrary view is thus presented in Balto. & Ohio R. R. Co. v. Wilkens, &c., 44 Md. 11:
“The master of a ship is necessarily clothed with a real as well as an apparent authority, much more extensive than belongs to the station agents of a railroad company. His control over the vessel, his power to make contracts respecting it, 'his discretion in the use and management of it for the benefit of his owners, on the high seas and in distant ports, reach far beyond those of the latter. A bill of lading signed by him and forwarded by mail oftentimes arrives at the port of destination months before the vessel and cargo, and the necessities as well as the convenience of commercial transactions, requiring its transfer, and advances on the faith of it, are much stronger than can possibly exist in dealing with similar instruments in railway transportation. In the latter but a few days usually intervene between the arrival of the bill of lading by mail, and the goods by the cars, and, besides this, the telegraph is at hand affording to anyone asked to make advances on the faith of such documents easy and speedy means of ascertaining whether the goods have been in fact laden in the cars or received at the depot of shipment or not. If, therefore, there be any good reason for exempting the owner of a vessel from responsibility for a bill of lading, false in this respect, signed by the master who is his agent, it must apply a fortiori to a railway company, with respect to similar acts of its station agents along its line of road.” (p. 25.)'
(See, also, Robinson v. Memphis & Charleston R. Co., 9 Fed. 129, 138, 139.)
In Smith v. Mo. Pac. R’y Co., 74 Mo. App. 48, 56, it was held that a bill of lading signed by the general freight agent of a railroad company is in effect issued by the company itself, and is valid in the hands of innocent third parties although the goods were not in fact received. We have no doubt that the signature of an assistant general officer is as effective as that of the officer himself.
The judgment is reversed and the cause remanded, with directions to overrule the demurrer to the reply and proceed in accordance with the views here expressed.
Benson, J., not sitting. | [
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The opinion of the court was delivered by
Mason, J.:
In 1898 George T. Savage obtained a benefit certificate in the Modern Woodmen of America in favor of his wife, Nora L. Savage. The rules of the association authorized him to change the beneficiary at his pleasure. On July 13, 1908, he elected to ■constitute his son, Russell Savage, and his daughter, Mabel Sebree, the beneficiaries. Upon complying with the prescribed forms he obtained, on July 16, a new certificate designating them as such. Three days later he died. His widow brought action for the amount of the certificate, making the son and daughter parties. The association admitted indebtedness under one certificate or the other, and asked that the rights of the rival claimants be determined. A trial resulted in a judgment in favor of the widow, and the son and daughter, who will be referred to as the defendants, appeal.
The plaintiff’s petition declared upon the original certificate. The defendants each filed an answer and cross-petition setting out the change of beneficiary and the issuance of the new certificate. The plaintiff filed replies alleging in effect that George T. Savage had agreed with her that if she would help pay the premiums he would never change the beneficiary; that she had done so for a term of years, thereby acquiring a vested right in the certificate; and that the attempted change was therefore ineffectual. The defendants demurred, and now urge that a reversal should be ordered upon the ground that the new matter in the replies constituted a departure from the petition; that to have been available to the plaintiff the allegations regarding the accrual of a vested right should have been inserted in the petition instead of in. the replies. As the issues were framed the contention of each party was made clear, and in the trial neither was denied a full opportunity to develop the facts. Whether or not the plaintiff’s pleadings presented a departure, and whether or not she should have been required to reshape them, the error, if any, did not prejudice the substantial rights of the defendants, and does not justify a reversal.
While there is some conflict on the subject, the weight of authority supports the view, which we think well founded in reason, that where the designation of the beneficiary in a certificate issued by a mutual bene fit association is made in pursuance of an agreement,, founded upon a sufficient consideration, the person designated acquires a vested interest, and, unless by reason of countervailing equities, can not be displaced, although the rules of the association permit the member to change the beneficiary at will. (12 L. R. A., n. s., 1207, note; 12 Ann. Cas. 944, note; see, also, opinion in Great Camp K. O. T. M. v. Savage, 135 Mich. 459.)
“Where the member, upon taking out the certificate, makes an agreement with the beneficiary that the latter should pay the assessments, and that no substitution should be made, the beneficiary, upon performing this, agreement, acquires a vested right.” (3 A. & E. Encycl. of L. 993.)
“Equities may exist in favor of the original beneficiary which will preclude the member from substituting a new beneficiary who has no equity superior to that of the person originally designated.....An equity in favor of the original beneficiary precluding the substitution of another in his place may rest on a contract between him and the member, based on a sufficient consideration, by whieh he is to receive the benefits. Thus if a member designates a beneficiary, or, having designated a beneficiary, delivers the certificate to him, on an agreement that he shall receive the benefits, in consideration of past advances made by him, or present or future advances, or in consideration of his promise to pay dues and assessments, which promise is fulfilled, the member can not thereafter substitute a different person as beneficiary.” (29 Cyc. 128.)
The defendants claim that there was no substantial evidence of any agreement on the part of George T. Savage to name and retain his wife as the beneficiary of his membership certificate. The argument is in part a challenge of the credibility of a portion of the testimony. A daughter of the plaintiff testified that she heard her father tell her mother that he intended to take out insurance for her if she would assist in paying the dues, and he would never change it. The plaintiff testified that he said substantially the same thing to the children in her presence. Her testimony is objected to as a violation of the statute reading:
“No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, adminstrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where they have acquired title to the cause of action immediately from such deceased person.” (Civ. Code, § 320.)
The plaintiff maintains that the rule has no application because she testified that, in the particular conversation to which she referred, her husband addressed his remarks to the children more than to her. We think it unnecessary to indulge in this refinement. The statute does not apply because the defendants are not within its protection.
“The statutes are strictly construed in respect to the persons excluded from testifying, and the exclusion will not be extended by implication to a class of persons not named, though the reasons for embracing them may have been equally as strong as those which existed for excluding the persons expressly designated. . . . Where the statutes prohibit parties or persons interested from testifying when the adverse or opposite party sues or defends as trustee, guardian, executor, administrator, heir, legatee, devisee, etc., in order for such opposite party to be entitled to the protection of the statute he must come within its terms, and if the suit is not by or against parties in such enumerated classes the other may testify. The rule only applies in favor of the persons named in the various statutes.’5' (30 A. & E. Encycl. of L. 983, 1019.)
This rule of strict construction is in full force in: this state. A witness is deemed competent unless clearly rendered incompetent by the terms of the statute. (Williams v. Campbell, ante, p. 46.) The defendants are not, within the meaning of the law, heirs, or next of kin of the deceased person, George T. Savage. They do not claim in that capacity or in virtue of that relationship, and the circumstance that they are so related to him does not enable them to invoke the-statute. (30 A. & E. Encycl. of L. 1022, note 8; 30 A. & E. Encycl. of L. 1024, ¶ f.) They are not assignees of the decedent. “An assignment involves contractual relations. But the claim of a beneficiary is not based iipon contract on his part.” (Shuman v. Supreme L. K. of H., 110 Iowa, 480, 482. See, also, Crowell v. Insurance Co., 140 Iowa, 258; 30 A. & E. Encycl. of L. 1023, ¶ d.) The. sup reme court of Michigan holds that under such circumstances the witness is disqualified. (Franken v. Supreme Court I. O. F., 152 Mich. 502.) The ruling seems to have originated in Wallace v. Fraternal Mystic Circle, 127 Mich. 387, although it was there justified upon the ground that in principle it was controlled by an earlier decision. In the opinion it was said :
“It is strenuously contended that the plaintiff is not a legatee, heir or assignee within the meaning of the statute. It is possibly correct to say that she does not come within the precise words of the statute, and, were the question entirely new, there might be ground :for hesitancy. It should be kept in mind, however, that plaintiff is a beneficiary of the assured, and that up to the time of his decease he retained the power of disposition of his policy. She takes, therefore, by virtue ■of a right bestowed upon her by the deceased.” (p. •'389.)
That case was followed in Great Camp K. O. T. M. v. Savage, 135 Mich. 459, although two oí the five .justices dissented. The doctrine results from excluding witnesses who are within the reason of the statutory rule, although .not within its terms, while the general practice and the practice in this state is to the contrary.
The defendants assert that there is nothing to show that the plaintiff ever accepted the proposition of her husband to make her the beneficiary if she would help pay the assessments. We think this may fairly be im plied from the fact that she did render such assistance, and from her general course of conduct. There was evidence that many of the payments were the act of the plaintiff, But the ■ defendants maintain that they were made from community money, of which the husband was in legal contemplation the owner; that an agreement of a wife to assist in maintaining such a common fund is in effect to promise to perform her marital duties, and can not be made the basis of a business contract, within the rule of such cases as Dempster v. Bundy, 64 Kan. 444. The plaintiff in a sense had no separate property. But there was evidence that at various times she was given money by her relatives which she used in paying assessments; that she made money by keeping boarders and selling milk, eggs and chickens; that while her husband was on the police force she borrowed money from her mother and started a grocery store, which was run in her husband’s name, but which she personally managed for a considerable period. No separate sum was at any time set apart as belonging to her individually, and the assessments were paid out of the common fund, except where, as already noted, money furnished by her relatives was used for that purpose. In this state the married woman’s field of individual action is enlarged beyond the bare letter of the statute. Her marriage does not deprive her of the legal capacity to enter into a personal contract. (Harrington v. Lowe, 73 Kan. 1, 16.) According to the usual interpretation of statutes similar to our own the wife is entitled to treat as her separate property the proceeds of her labor outside of her ordinary household duties. (21 Cyc. 1393; 25 A. & E. Encycl. of L. 357.) Here the plaintiff had a basis for the creation of an independent estate. The fact that she permitted the proceeds of her efforts to be commingled with the community property ought not to operate to her prejudice in such a case as the present. It is unnecessary to review deci sions made where the rights of creditors are concerned, for the questions there presented are very different from that now under discussion., Upon the plaintiff’s version of the facts she agreed to help pay the assessments, and did so, using to that end, in*part at least, the fruits of her own efforts exerted in a field beyond the scope of her marital obligation. This furnished a sufficient consideration for the agreement notwithstanding her earnings were turned into the common fund.
The judgment is affirmed. | [
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Per Curiam:
In a proceeding in the probate court Swan Johnson, who had been previously adjudged insane, represented that he had been restored to his right mind and he therefore asked to be discharged, but, upon a hearing, Jt was decided that he had not been cured and restored to reason and the application was denied. Expressing an intention to appeal, the probate court fixed the amount of the appeal bond at $200. He proposed to give' his personal bond but this was refused. He then asked the court to make an order by which his estate, in the control of his guardian, said to amount to $2000, might be used as security toward obtaining the appeal, but this request was also refused. Application is made here for a writ of mandamus to compel the probate court to accept the personal bond of Johnson, without security, on the appeal, or, if that is not done, to order the appropriation or use of a part of his estate as security.
The statute provides that, in order to appeal, the appellant shall give a “bond and security.” (Laws 1901, ch. 353, § 61, Gen. Stat. 1909, § 8473.) Johnson, having been declared insane, can not give a binding personal obligation and his guardian has not offered to give one for him, nor has he asked that the estate in his charge be used as security upon an appeal. The probate court, in its discretion, determined that it would not, on the application of Johnson, order that his estate should be devoted to further litigation or, rather, used in the taking of an appeal to the district eotxrt. What use shall be made of the estate is a matter within the discretion of the probate court and its discretion can not be controlled by mandamus. The writ may be granted to require a court to exercise its jurisdiction and proceed to a hearing, but it can not be used to control the decision a court shall make nor require it to exercise judicial discretion in a particular way. (Railroad Co. v. Shinn, 60 Kan. 111.) The amount of the appeal bond is not excessive, neither can it be said that the court abused its discretion.
The writ is denied. | [
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The opinion of the court was delivered by
Burch, J.:
On March 29, 1911, the defendant was found guilty of murder in the second degree, and on the 8th of April following he was sentenced to confinement at hard labor in the penitentiary for the term of his natural life. When he was sentenced he was granted until April 25 to make and file a bill of exceptions upon which to base an appeal. At the same time he applied to the district court to be admitted to bail, pending the preparation and filing of a bill of exceptions. The application was refused and he was ordered to be kept in confinement in the county jail. On April 17, he applied to this court to be admitted to bail. The application was granted and the amount of the bond to be given was fixed at $50,000. Pending the approval of a bond which the defendant tendered the state moved to set aside the order of this court on the ground that the defendant is not entitled to bail as a matter of right after convictidn, and reasons were advanced why any discretionary power which the court may possess in the matter should not be exercised. The motion was denied and the bond was approved. The question presented by the motion of the state is of such importance that the reasons for this court’s action in the premises should be formally stated.
The constitution provides that all persons shall be bailable by sufficient sureties except for capital offenses where proof is evident or the presumption great. (Bill of Rights, § 9.) Since the abolition of capital punishment there are no capital crimes in this state; consequently, under the constitution all persons are now bailable by sufficient sureties. If, however, bail be allowed after conviction and pending an appeal, execution of the judgment must necessarily be stayed. It is argued by the state that the constitution contemplates no such result. On the other hand, it is said that no punishment for crime should be inflicted until guilt is finally established, and consequently that the plain provision of the constitution should be given its full and natural effect. Leaving this question at one side the statutory provisions relating to stay of execution in criminal cases may be examined.
The criminal code of 1859 was continued in force in the revision of 1862, and contains the following section:
“An appeal to the supreme court from a judgment of conviction, does not stay the execution, except when the judgment is for a fine or fine and costs only, in which case the execution may be stayed by an order of the supreme court or a judge thereof.” (Compiled Laws 1862, ch. 82, § 270.)
In 1868 this section was modified to read as follows:
“An appeal to the supreme court, from a judgment of conviction, does not stay the execution, except when the judgment is for a fine, or fine and costs, only.” (Gen. Stat. 1868, ch. 82, § 287.)
. The law. stood thus until 1889, when section 287 of chapter 82 of the General Statutes of 1868 wás amended to read as follows:
“An appeal to the supreme court from a judgment of conviction shall stay the execution, when the judgment is for a fine, or fine and costs only. In all other cases the execution of the judgment shall be stayed by the order of the supreme court, or any justice thereof, upon the appellant giving bond in such sum as said court or justice shall prescribe, said bond to be approved by said court or any justice thereof; and in default thereof the defendant shall remain in the custody of the sheriff until the further order of the supreme court; provided, that when the conviction is for an offense not bailable the supreme court or a justice thereof shall make an order for the safe-keeping of the appellant in the jail of the county in which the offense was alleged to have been committed, or in case of no sufficient jail in such county, then in the jail of the county nearest having a sufficient jail.” (Laws 1889, ch. 127, § 2, Gen. Stat. 1901, § 5725.)
By this act the stay' of execution when the judgment is for a fine or for a fine and costs only is stated in positive form. In all other cases execution of the judgment shall be stayed. The stay is effected by order of this court, or of some justice thereof, upon the defendant’s giving a bond which the court or some justice shall prescribe. The bond is indisputably a bail bond. If the bond required can not be given provision is made for the custody of the defendant, and when the offense is not bailable the defendant does not go to the penitentiary, but an order shall be made by this court or one of its members for his safe-keeping in the county, or other sufficient, jail. This statute is clearly mandatory. Every call for action on the part of the court or its members is imperative, and there is no intimation that discretion may be exercised over any matter except the amount and sufficiency of the bond. Upon application by the defendant the duty arises to fix the amount of bail required, and upon giving a sufficient bond in the proper amount-the defendant is entitled to a discharge from custody as a matter of right whenever the offense is bailable.
In 1903 the following appeared on the statute book as an amendment to the act of 1889:
“That section 5725 of the General Statutes of 1901 be and the same is hereby amended so as to read as follows: Sec. 5725. An appeal to the supreme court from a judgment of conviction shall stay the execution when the judgment is for a fine or fine and costs only. In misdemeanor cases, the execution of the judgment shall be stayed by the order of the court trying the case or the judge thereof, upon the appellant giving bond in such sum as said court or judge shall prescribe, said bond to be approved by the clerk of said court, and the stay shall be granted on serving the usual notice of appeal, and the transcript may be filed in the supreme court at any time within ninety days after the rendition of the judgment, and not otherwise. If the transcript is filed within the prescribed time, then the stay shall continue to be in force until the case is finally disposed of in the supreme court, but not otherwise. In felony cases, the execution of the- judgment or sentence shall be stayed by the judge of the trial court wherein the conviction was had, pending the time given by said trial judge or court to the defendant for the making and filing a bill of exceptions, or by the order of the supreme court or any justice thereof, upon the appellant, giving bond in such sum as said trial court or supreme court shall prescribe, said bond to be approved by said trial court, or the supreme court or any justice thereof. During the time given for the making and filing a bill of exceptions, the defendant shall remain in the custody of the sheriff, unless otherwise ordered by the trial court or supreme court; provided, that when the conviction is for an offense not bailable, the trial court or supreme court or the justice thereof shall make an order for the safe-keeping of the appellant in the jail of the county in which the offense was tried, but in case of no sufficient jail in such county, then in the jail in the county nearest having a sufficient jail; provided further, that the appellant availing himself of the benefit of this act shall take his bill and file the transcript with the clerk of the supreme court within two years from the rendition of the judgment or such sentence.” (Laws 1903, eh. 389, § Í, Gen. Stat. 1909, § 6861, Crim. Code, §287.)
The bill resulting in this act was House Bill No. 808, introduced by Mr. Kirkpatrick, which reads as follows:
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. That section 5725 of the General Statutes of 1901 be, and. the same is hereby amended so as to read as follows:
“Section 5725. An appeal to the Supreme Court from a judgment of conviction shall stay the execution when the judgment is for a fine or fine and costs only. In misdemeanor cases the execution of the judgment shall be stayed by the .order of the Court trying the case or the judge thereof, upon the appellant giving bond in such sum as said Court or judge shall prescribe, said bond to be approved by the Clerk of said Court, and the stay shall be granted on serving the usual notice of appeal and the transcript may be filed in the Supreme Court at any time within ninety days after the rendition of the judgment, and not otherwise. If the transcript is filed within the prescribed time, then the stay shall continue to be in force until the case is finally disposed of in the Supreme Court but not otherwise. In felony cases the execution of the judgment shall be stayed by the order of the Supreme Court or any justice thereof, upon the appellant giving bond in such sum as said Court or justice shall prescribe, said bond to be approved by said Court or any justice thereof. The defendant shall remain in the custody of the sheriff until the further order of the Supreme Court, provided that when the conviction is for an offense not bailable the Supreme Court or a justice thereof shall make an order for the safe-keeping of the appellant in the jail of the County in which the offense was tried, or in case of no sufficient jail in such County, then in the jail in the county nearest having a sufficient jail; and provided further that the appellant availing himself of the benefits of this Act shall take his appeal within sixty days after the judgment is rendered and shall file the transcript with the Clerk of the Supreme Court within 90 days from rendition of such judgment. The order to stay execution of the judgment may be made as soon as the notice of appeal is given and if the transcription is filed in the Supreme Court within the time herein provided, the stay shall continue until the final disposition of the case in said Court but not otherwise.” (Original Bill in Office of Secy, of State.)
The bill was passed by the house in this form and sent to the senate. On third reading in the senate Senator Cubbison moved to amend by inserting after the word “otherwise” all that part of section 1 as it now appears on the statute book which begins with the words “In felony cases.” (Senate Jour. 1908, p. 953.) Under the statute of 1889, and under the original house bill, which retained the full substance of the act of 1889, no. provision was made for bail pending the making and filing of a bill-of exceptions in felony cases. Sometimes defendants were rushed to the penitentiary before the bill of exceptions could be prepared and filed, the complete record made up and an appeal taken in the orderly way, which would give this court jurisdiction to admit to bail. Whenever ■such action was feared the defendant was obliged to appeal at once on a skeleton record, and afterward, when the bill of exceptions had been settled and filed, bring up the complete transcript. Senator Cubbison’s amendment was designed to prevent this oppression of •a defendant convicted of a felony during the time necessary to prepare the record for an appeal, and it covered the subject completely, even to the matter of safekeeping in the county jail in the case of a nonbailable offense, and to the time within which the bill must be taken and the transcript filed in this court. It was not intended that any part of the house bill should be stricken out. The bill as framed by Mr. Kirkpatrick, with the amendment of Senator Cubbison, comprised :a complete code relating to stay of execution and bail after conviction. It covered judgments for fine or for ■fine and costs only, misdemeanor cases, felony cases ■during the time allowed to prepare and file a bill of -exceptions, and felony cases after appeal to this court. The legislature desired, beyond any doubt, to pass the bill in this form and thereby to make admission to bail after conviction a matter of right in all bailable cases, and to prevent any person convicted of a bailable felony' from being incarcerated in the penitentiary ■until after his appeal had been determined. This, however, is what happened: Some clerk conceived that the Cubbison amendment was intended as a substitute for that part of the house bill beginning “In felony cases” and continuing to the end of the bill; therefore be crossed out that part of the house bill. The Cubbisoh amendment was adopted, the bill as amended was passed by the senate, the house of representatives concurred in the amendment, and the bill was sighed and published as it now appears.
Of course, it must be held that the legislature intended to pass the act in the form disclosed by the enrolled bill. But the purpose which the legislature intended the act should accomplish is too clear to be doubted. If the legislative record were less instructive it would be idle to say that the intention was to make elaborate provision for bail during the time allowed for making and filing a bill of exceptions and. then to cut off baili as soon as a defendant perfects his record for an appeal. Keeping the legislature’s evident purpose in mind, it does no violation to the terms of the act to interpret it as follows: In felony cases' the execution of the judgment .or sentence shall be stayed upon the giving of a bond. The stay shall be granted by the trial judge or court pending the time-allowed for making and filing a bill of exceptions, the bond to be approved by such court or judge; or the stay during that period may be granted by this court, or one of its members, who shall fix and approve the bond. Meanwhile the defendant remains in the custody-of the sheriff unless otherwise ordered by a discharge on bail. On an appeal being taken the stay shall be granted upon the appellant giving bond in such sum as this court or one of its justices shall require and approve.
Although it is mandatory that the defendant shall, in default of bail, remain in the custody of the sheriff' pending the making and filing of a bill of exceptions, there is no express provision that after appeal the defendant shall remain in the custody of the sheriff' if he is unable to give the bond prescribed by this court. This court, however, has authority to make such an order under the general grant to it of power to suspend proceedings in the court below, on such terms as may be just, during the pendency of an appeal. (Gen. Stat. 1868, ch. 27, § 1, Gen. Stat. 1909, § 2362.) In view of the manifest legislative purpose that imprisonment in the penitentiary shall not follow a judgment of conviction until that judgment has been affirmed on appeal, if an appeal be taken, the court always exercises its discretion accordingly.
While it requires a somewhat robust interpretation to make the words used in the statute of 1903 express the true legislative intention, that intention ought not to be thwarted by a clerk’s officiousness or blunder in making up the record. Therefore the court has uniformly adhered to the interpretation stated above ever since the statute was enacted.
In any view of the statute the-defendant in this case was entitled to bail as a matter of right during the time allowed for making and filing his bill of exceptions. Because applications to this court for bail and for orders for keeping in the custody of the sheriff have frequently been resisted, and because of an intimation at the hearing that such application would be resisted, if made, in this case, the court has deemed it best to announce its settled opinion respecting the entire scope and purpose of the act. | [
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The opinion of the court was delivered by
West, J.:
Dyson sued Bux, Stadel and Bauerlein, and alleged that he contracted orally with Bauerlein to sell him one-half of the north wall on lot 61, which wall was upon and up to the north line of the lot; that Bauerlein desired to purchase the one-half in order to make the wall a party wall, he owning the lot adjoining on the north; that before the oral contract was carried out the plaintiff started negotiations with Bux and Stadel for the exchange of lot 61 for certain mill property, and that during such negotiations he informed them that if the exchange was made it would have to be by reserving and retaining the north half of the north wall, as he had made a contract to sell it to Bauerlein; that it was then agreed that the exchange should be made, the north half of the wall in question to remain the property of the plaintiff; that a written contract was made for the sale of lot 61, “which includes said lot and one-half of the north and. south walls of the building occupying said lot”; that afterward a deed was executed to Bux and Stadel describing the property conveyed as “lot sixty-one (61) on Kansas avenue and improvements thereon, which consist of one-half each of the north and south walls of said building”; that afterward Bauerlein, who owned the adjoining lot on the north, conspired and colluded with Bux and Stadel to cheat and defraud the plaintiff out of the north half of the wall, and proceeded to erect a building, using such half of the wall as a party wall; that no attention was paid to a- notice from the plaintiff of his rights in the wall and forbidding the defendants to use the same. A demurrer to the petition was sustained, apparently on the theory that the deed conveyed the lot and did not reserve any portion of the wall, and that the previous negotiations and contract were superseded by the deed.
The plaintiff complains of this ruling, and insists that the language of the deed was at least ambiguous and was susceptible of proof as to its meaning, and that it was not accepted as a performance of the conditions of the preceding contract and hence was not an absorption thereof. The defendants contend that the contract was merged in the- deed, and that Hampe v. Higgins, 74 Kan. 296, is controlling. It is said in their brief that Bux and Stadel bought lot 61 and had a right to believe-that they were purchasing everything upon it, and numerous authorities are cited in support of the proposition that reservations and exceptions in a deed must be in clear and definite language.
While there is a rule that an exception must not be repugnant to the grant, still a deed, like any other contract, must as a general thing be construed by considering the intention of the grantor, as manifested by the language used. We are unable to believe that the description in the deed — -“lot number sixty-one . . . and the improvements thereon, which consist of one-half (%) each of the north and south walls of building designated as street' number two hundred and twenty-five (225)” — can leave serious doubt of the grantor’s intention to reserve one-half of the wall in question. The language used was not well chosen, but it is sufficient to evince the intention, and, when taken in connection with the clearer language of the preceding contract, it is plain enough. Lot 61 and the improvements thereon can hardly be the same as lot 61 and the improvements thereon, “which consist of one-half each of the north and south walls” of the building. The petition shows that the purchasers knew, both by verbal information received from the seller and by the written contract which they had accepted, that the seller had no intention to convey more than one-half of the north wall, and the words employed in the deed themselves operated as a further notification of the grantor’s intention.
In the, case of Hampe v. Higgins, 74 Kan. 296, the court construed a deed as superseding a previous contract for the express reason that “the evidence furnished by the face of the two instruments and also the extrinsic circumstances shown indicate that the parties intended the deed as a complete settlement of all further controversy concerning the sale and conveyance of the land.” (p. 298.) There the contract called for ninety acres of land, more or less, but the deed contained the significant provision that if a survey showed more than ninety acres the grantee would pay $82.23 an acre for the excess, and if it showed less the grantor should pay back the value of the deficiency at the same rate. The extrinsic facts shown were, in part, that when a question arose as to the grantor’s title a tender of the entire purchase price was made, a suit for specific performance was begun, lawyers were consulted who managed the negotiations which led up to the deed, and a full consideration was paid upon its delivery. But here, admitting the allegations of the petition to be true, it was held as a matter of law that the deed not only absorbed the previous negotiations and contract, but, in effect, that its language foreclosed the plaintiff’s right to contend further.
In Read v. Loftus, 82 Kan. 485, it was held that the question of merger depends upon an examination of the instruments and the situation, conduct and intention of the parties. In the opinion it was said that “the conduct of the parties was a proper matter to be considered as well as the language of the instruments” (p. 492), and we think the same rule applies here.
“A reservation is of some new thing issuing out of. what is granted; an exception is a withdrawal from the operation of the grant of some part of the thing itself. . . . The exception is good when the granting, part of the deed is in general terms, as in thé grant of a messuage and houses, excepting the barn or dove-house ; or in the grant of a piece of land, excepting the trees or woods; or in the grant of a manor, excepting a clos.e, ex verbo generali aliqwid excipitur. If the exception be valid, the thing excepted remains with the grantor, with the like force and effect as if no grant had been made.” (2 Dev. Deeds, 2d ed., § 979.)
“As in the case of all contracts, the intent of the parties to the deed, when it can be obtained from the instrument, will prevail, unless counteracted by some rule of law. . . . When the intention of the parties can be plainly ascertained, arbitrary rules are not to be resorted to. The rule is that the intention of the parties is to be ascertained by considering all the provisions of the deed, as well as the situation of the parties, and then to give effect to such intention, if practicable, when not contrary to law.” (2 Dev. Deeds, 2d ed., § 836.)
“If the only reason urged for construing a particular clause in a deed is founded upon the technical words which have been used, the court may disregard them in determining the effect to be given to the conveyance, and such a construction should be adopted as on a general view of the instrument, and of the intention which the parties had in view, seems most likely to carry their intention into effect.” (2 Dev. Deeds, 2d ed., § 836a.)
“ ‘There is no reason why a rule which will discover the meaning of language not technical, in a note or other instrument, may not be resorted to to ascertain the meaning of language not technical in a deed.’ (Quoting from Bradshaw, et al., v. Bradbury, 64 Mo. 334, 337, per Judge Henry.)” (2 Dev. Deeds, 2d ed., § 837.)
While it is held that a grant of land in a deed once plainly made can not be diminished by a subsequent, exception in the same instrument, still the rigor of this rule should not be sufficient to overturn the manifest intention of the grantor or to preclude the explanation of an ambiguity by proper evidence. The extreme harshness of the rule is stated in section 838a of the second edition of Devlin on Deeds, where the author quotes from Mr. Justice Emery in Maker v. Lazell, 83 Maine, 562, in which it was said: “We do not find that this rule has ever been disregarded, or even seriously questioned, by courts.” (p. 565.) It is sometimes called the rule of last resort, and is in accord with the maxim that the first deed and the last will shall operate. But we prefer the view expressed by Mr. Justice Brown, in Triplett v. Williams, 149 N. C. 394:
“But this doctrine, which regarded the granting clause and the habendum and the tenendum as separate and independent portions of the same instrument, each with its especial function, is becoming obsolete in this country, and a more liberal and enlightened rule of construction obtains, which looks at the whole instrument without reference to formal divisions, in order to ascertain the intention of the parties, and does not permit • antiquated technicalities to override the plainly expressed intention of the grantor, and does not regard as very material the part of the deed in which such intention is manifested.” (p. 396.)
A will can not take effect until the death of the testator, and it accords with reason that the last will made by him should operate. While a grant of an en tire estate can not, of course, be impaired by a subsequent instrument by the grantor, still it does not follow that he may not, in the original instrument, confine the grant to such portion of the estate as he may desire to convey; and there is no sound reason why such limitation should be restricted to any one clause in the instrument, but there is abundant reason why the entire language used should be given consideration in determining what the grantor’s intention was.
In Kendall v. Parsons, 81 Kan. 192, it was said:
“The tendency of modern decisions is to ignore technical rules of construction in deeds of conveyance, as in wills, and to discover the intent of the parties; if that can be determined, to give it effect. (Palmer v. Blodgett, 60 Kan. 712; Vawter v. Newman, 74 Kan. 290; Nolan v. Otney, 75 Kan. 311.) ” (p. 193.)
In Palmer v. Blodgett, 60 Kan. 712, it was said, in speaking of this rule:
“Modern theories, however, put deeds of real estate, for purposes of construction of their terms, in the list with all other kinds of written contracts, and they endeavor to ascertain the intent of the parties executing them more from the language of the whole instrument than from the relative positions of the different parts or clauses.” (p. 714.)
(To the same effect is Vawter v. Newman, 74 Kan. 290, as well as Nolan v. Otney, 75 Kan. 311.)
Numerous authorities from other states might be cited showing that they aré in harmony with the modern and not with the ancient rigorous rule. The judgment sustaining the demurrer is reversed, and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff received injuries in a collision with one of the defendant’s engines at a street crossing in the city of Ottawa. She recovered $830 damages. The railway company appeals.
The accident occurred about seven o’clock on the evening of December 17, 1906. The plaintiff was driving a horse attached to a single buggy. It was a dark night, and there was a cold wind from the north. The top of the buggy was raised, the side curtains Were down, and the plaintiff had her head and ears wrapped up in a shawl. Tecumseh street runs east and west, and is crossed by four railroad tracks, known as tracks Nos. 1, 2, 3 and 4, the east track being No. 1. The passenger depot is north of the street, and on the east side of the tracks. Upon the arrival of the train from Lawrence each evening it was the custom to detach the engine, run it south across Tecumseh street, then back it north across the street on track No. 3, leading to the yards. Tecumseh street is paved from curb to curb for a width of fifty feet, and planks are laid between the rails and tracks at the crossing. As the plaintiff approached the crossing from the west, driving at a slow trot, the train was standing on track No. 2, at the north side of the crossing. The engine was at the south side of the street and headed south, with the headlight burning. There was a red lantern on the rear of the engine. The plaintiff testified that when about thirty feet from the second track from the west she leaned forward in her seat, looked in both directions and listened, and did not see or hear any approaching cars; and that she then drove upon the track without again looking or listening. The engine, which was backing north over the crossing on track No. 3, struck the buggy and pushed it about twelve feet before the-engine was stopped. The wheels of the buggy were ■damaged, and the horse thrown down, but not injured. The plaintiff was lifted out of the vehicle by a bystander.
The acts of negligence charged were that the engine was backing at a dangerous rate of speed, at least fifteen miles an hour, without any light on the rear part thereof, and without any person keeping a lookout to see the plaintiff and avoid injuring her, and without giving any signal by bell or whistle or otherwise, so that the plaintiff could see or hear the approaching engine in the darkness.
The special findings of the jury are that the bell of the engine was ringing as it approached the crossing,' that there was a light on the rear of the tender of the engine as it backed across the street, that the engineer was looking from the cab toward Tecumseh street as the engine approached, and that he exercised all possible means to stop the engine when he discovered the plaintiff.
A finding that the engine was moving eight miles an • hour was stricken out by the court, on the defendant’s motion. The evidence was that it was moving not to exceed six miles an hour, and the other circumstances in the case indicate that it was going at a rate of even less than this. Since the findings of the jury exonerate the defendant from all acts of negligence. alleged, the judgment can not be permitted to stand. The jury found that the plaintiff was not guilty of contributory negligence. Conceding that she was not, this leaves a situation where the law declares that the injuries were caused by what was, under the circumstances, an unavoidable accident. (Dygert v. Bradley, 8 Wend. [N. Y.] 469; Anderson’s Diet, of Law; 8 Words & Ph. Jud. Def. p. 7149.)
It conclusively appears from the findings that the defendant owed no duty to the plaintiff which it wrongfully failed to perform. As was said in A. & N. Rld. Co. v. Flinn, 24 Kan. 627:
“A railroad company can not be made responsible merely because an accident occurs in the operation of its road. The proper and legitimate exercise of a lawful business can never furnish the basis of á cause of action. No person can be held responsible for an unforeseen accident which incidentally occurs while he is in the rightful and proper exercise of his lawful business. As we have before stated, every cause of action must be founded upon a wrong; and it has never yet been held that the mere operation of a railroad is wrong.” (p. 640.)
(To the same effect is A. T. & S. F. Rld. Co. v. Plaskett, 47 Kan. 107.)
The judgment is reversed and the cause remanded, with directions to enter judgment for the defendant. | [
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Per Curiam:
The explanation of the verdict of the jury is that the jurors did not credit considerable portions of the plaintiff’s testimony and consequently did not believe that his claimed physical disabilities resulted from his fall. Of course the township should not pay for bad health or for doctor’s bills which were not occasioned through its fault. The verdict is not for nominal damages but is for all the substantial damages for which the township is liable. In view of the incredibility of material parts of the plaintiff’s story the verdict does not indicate passion or prejudice and it is not inconsistent with the special findings. The jury found specially all the facts essential to liability and actually held the township to be at fault. Therefore whatever the instructions relating to the conditions upon which liability would attach no prejudice resulted to the plaintiff. In finding for the plaintiff the jury necessarily found that he was not negligent and so it makes no difference where the burden of proof respecting contributory negligence was placed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This action was brought by Williams to recover the sum of $97.50, which sum he had paid under protest, as taxes for the year 1908 upon two contracts for the sale of land and payment therefor. The contracts, which were executed by both parties and acknowledged,, read:
■“Exhibit A.
“AGREEMENT.
“This agreement, made this 21st day of May, 1906, by and between Thomas Williams, an unmarried man, party of the first part, and Abram Ashelford, party of the second part,
“Witnesseth: That said Williams .agrees to do as follows: To sell and convey to said second party, his heirs or assigns, half the west (%) of section 3, in township 17, range 15, east of the 6th.P. M., in Osage county, Kansas, by general warranty deed, free from all encumbrances, and to furnish an abstract of title to said land down to the making of the deed, on payment to him of the sum of twelve thousand dollars, payable-as follows: Five hundred dollars cash, on. the signing and delivery of these papers,. the receipt - of which is hereby acknowledged, and the sum of. two thousand dollars on or before March 1, -1907, and the sum of not less than two thousand dollars annually on or before March 1 of each succeeding year:.until all of said consideration shall have been paid in full. All deferred payments to draw interest from March 1, 1907, at the rate of four per cent per annum, interest to be paid annually on all deferred payments; possession to be given March 1, 1907. -
“Williams to pay the taxes for 1906. The insurance to be transferred to Ashelford, but the loss, if any, shall be paid to Williams and applied on this contract.
“Said Ashelford agrees to do as follows: To pay said sum of twelve thousand dollars at the times and in the manner as aforesaid, and to pay the taxes oh said land after the present year.
“It is agreed between the parties hereto that if the terms of this agreement are not met with and by the party of the second part within a reasonable time after the same shall become due and payable, then this contract shall cease and terminate and shall be forever void. If the said sum of $2000 is not paid on March 1, then this contract shall terminate and the sum of $500 this day [paid] shall be forfeited.”
“Exhibit B. “AGREEMENT.
“This agreement, made and entered into this 24th day of November, 1906, by and between Thomas Williams, an unmarried man, party of the'first part, and Charles F. Davis, party of the second part,
“Witnesseth : That the said party of the first part hereby covenants and agrees to sell and convey, by a good and sufficient general warranty deed, the southwest quarter of section twenty-two (22), in township seventeen (17), range sixteen (16), east of the 6th P. M., in Osage county, on payment to him, the said Thomas Williams, his executors, administrators, or assigns, the sum of forty-five hundred dollars, in payments as follow: The sum of fifteen hundred dollars cash on the signing hereof, the receipt of which is hereby acknowledged, and the balance, to wit, three thousand dollars, on or before five years after March 1, 1907, with interest thereon from March 1, 1907, at the rate of five per cent per annum, interest payable annually, with the privilege to said party of the second part to pay the sum of one hundred dollars, or any multiple thereof, at any interest-paying time, on. said balance. The deed to be delivered on full payment being made of said consideration.
“Said first party agrees to deliver with said deed an abstract of title down to this date showing a good merchantable title, free from all encumbrances, so far as Thomas Williams and his grantors are concerned. Said first party to pay the taxes for the present year, 1906, and preceding years, and said second party to pay the taxes and assessments for 1907 and subsequent years.
“And the second party hereby covenants and agrees to pay said sum of $4500 as above set forth, and the interest thereon as aforesaid, with the taxes as above provided, and in case he or his legal representatives should fail or refuse to pay said sum or sums or the interest thereon at the times and in the manner above set forth, or the taxes on said land when the same becomes due and payable, then the whole of the balance remaining due and unpaid for said land shall at once become due and payable, and such steps may be taken, as may be legal, to enforce this contract, as said first party may think best.
“The second party is to insure and keep insured the buildings on said land in the’ sum of five hundred dollars; loss, if any, payable to said first party. Possession to be given March 1, 1907.”
The case was submitted to the court upon the pleadings and an agreed statement of facts, a jury having been waived. The petition alleged that the plaintiff was a taxpayer in the county; that the defendants named were the county commissioners, the county treasurer and the county clerk; the execution of the contracts; the assessment of the contracts as of the value of $12,-500, over the objection of the plaintiff; the refusal of the board of equalization to reduce the assessment, and an appeal from the decision of the board of equalization to the state tax commission to correct such erroneous assessment; the refusal of the state tax commission to allow the plaintiff any relief, and the dismissal of his appeal; that the county commissioners levied a tax, amounting to $97.50, on the contracts, and the county clerk entered the same upon the tax rolls and turned the same over to the county treasurer for collec tion; the payment of the taxes by the plaintiff, under protest, and to avoid the issuance of a tax warrant for the collection of the same; and that the taxes were illegal and void. The defendants interposed a demurrer to the petition, which was overruled by the court.' Thereupon the defendants filed a general denial. The agreed statement of facts admits the substance of the allegations of the petition, except, of course, that it is not admitted that the tax is illegal, and admits that no part of the tax had been refunded to the plaintiff. The issues were found in favor of the plaintiff, and that he recover from the board of county commissioners the sum of $97.50. A motion for a new trial was denied, and the defendants appeal.
Only one question is presented here, viz., Were the contracts in question taxable? Section 9214 of the General Statutes of 1909 (Laws 1876, ch. 34, § 1) provides that all property in this state, real and personal, not expressly exempt therefrom, shall be subject to taxation. That the contracts in question, if taxable at all, are taxable as personal property is evident from the fact that the real estate which is the subject of the contracts continues to be independently taxed. Are these' contracts, then, personal property ? Section 9215 of the General Statutes of 1909 (Laws 1907, ch. 408, §1) defines “personal property” as follows:
“The term ‘personal property’ shall include every tangible thing which is the subject of ownership, not forming part or parcel of real property; also,” etc.
Webster’s New International Dictionary gives as one definition of the word “tangible”:
“Capable of being possessed or realized; readily' apprehensible by the mind; real; substantial; evident.”
Each of these contracts includes an unqualified promise to-pay- — -the promise of the purchaser to pay to the seller the remainder of the purchase price of the land, and the seller of the land holds the legal title thereto
as security for the fulfillment of such promise. The contract in the possession of the seller is evidence of the indebtedness. The situation, logically, is not much different than if the seller had conveyed the land to the purchaser and taken a note and mortgage back to secure the remainder of the purchase price. The contract as truly constitutes a debt and security therefor as would a note and mortgage. It is capable of being possessed or realized, is readily apprehensible by the mind, real, substantial and evident. That it is not capable of being sold and transferred, as is a note and mortgage, without a conveyance of the legal title as security, only goes to the manner of transfer. The seller holds the legal title to the land in trust for the purchaser upon his complying with the conditions of the contract, and, undoubtedly, the seller could convey the legal title and assign this contract and his grantee would assume the same relations to the purchaser of the land that the vendor had held. Upon the payment of the debt, in either case, a court of equity would compel the transfer of the legal title to the purchaser or decree it. In such a case the thing sold would be the contract of indebtedness, with the security therefor, and not the land itself. Such transfer would not give to the vendor’s grantee the right to possession of the land, nor the equitable title to the land, which under
the contracts are possessed by the purchasers. (City of Marquette v. Iron & Land Co., 132 Mich. 130; Stearns v. Kennedy, 94 Minn. 439; Hubbard v. Glass Works, 188 Mo. 18; Marion v. Wolcott, 68 N. J. Eq. 20; Flanagan v. Great Cent. Land Co., 45 Ore. 335.)
The contracts in question vary materially from the contract construed in Brown v. Thomas, Sheriff, 37 Kan. 282. That case is cited in a footnote to In re Assessment of Shields Bros., 134 Iowa, 559, reported in 10 L. R. A., n. s., 1061, at page 1062, and the authorities are there collated of cases in which the con tract is construed as an option to purchase. In In re Assessment of Boyd, 138 Iowa, 583, reported in 17 L. R. A., n. s., 1220, paragraph 1 of the headnote reads:
“An enforceable contract for the purchase of real estate is a credit subject to taxation, although it provides for forfeiture upon default of the purchaser.”
In a note to that case is collected the authorities in support of the proposition cited in the headnote.
In Rheinboldt v. Raine, Auditor, et al., 52 Ohio St. 160, it was said:
“A sum due the vendor of real estate from the vendee, as purchase money, to pay which the vendee has given an absolute obligation, is a credit and taxable as such, notwithstanding the vendor has retained the legal title of the land sold as his security.” (Syl.)
It was also said in the opinion in that case, respecting the claim of double taxation made in this case:
“As to the claim that to tax these sums would result in double taxation it is enough to say that although the real estate continued to stand in the name of the partnership on the duplicate, yet, by the contract, the Kauffmans were obligated to pay all taxes and assessments, and if Rheinboldt, because of default on the part of the Kauffmans, should be compelled to pay any such charge, such payment would be payment of a debt of the Kauffmans rather than his own, and a legal right to collect of them would result.” (52 Ohio St. 165.)
In City of Marquette v. Iron & Land Co., 132 Mich. 130, in discussing a land contract similar to those in issue, it was said :
“The vendor has, in effect, exchanged his property for the unconditional obligation of the vendee, the performance of which is secured by the retention of the legal title. The fact that the vendee, in the case of the land contract, may, when making his final payment, demand a conveyance, does not distinguish the obligation from that of a credit secured by a mortgage, as the mortgagor may, when making his final payment, demand a discharge of the mortgage. The obligations under consideration, therefore, resemble, not agreements to pay future rent, or salary to be earned in the future, or promises to buy merchandise and products to be delivered in the future, but credits secured by mortgages. The resemblance between these “obligations and credits secured by purchase-money mortgages may best be described by stating that they differ only in this: That the vendor has a remedy to enforce his rights which is not given to the mortgagee, namely, he may take immediate possession of his security. Sucli an inconsequential difference affords no ground for a legal distinction. The decisions of this court which hold all credits secured by mortgages taxable are therefore, in our judgment, decisive of the proposition under discussion.” (p. 132.)
The case of Griffin v. Board of Review, 184 Ill. 275, seems to be a leading one upon this' question. The court in that case said:
“The appellant invested Riehl with the possession and beneficial use of the land, and obligated himself to invest him with the title also, upon the fulfillment by Riehl of the obligations on his part relative to the payment of the remainder of the purchase price of the land. For all the purposes of determining as to the liability of the land, and of the indebtedness due to appellant, to assessment for taxation, the retention of the title by the appellant may be regarded as but a mode adopted to secure the payment of the full purchase price of the land. In that view, the liability of the land and the debt to taxation is the same as in a case where the title has been placed in the purchaser and payment of the purchase price secured by means of a mortgage on the land acknowledging the indebtedness and creating a lien on the land to secure the payment. A debt secured by mortgage, and the land mortgaged to' secure the debt, are both subject to taxation. . . . The legal effect of the transaction between the parties hereto was to create new or additional property, viz., a legally enforceable demand in favor of the appellant to recover from said Riehl the unpaid balance of the purchase money of the lands. This property is entirely distinct from the property in the land.” (pp. 279, 280.)
(See, also, Perrine v. Jacobs, 64 Iowa, 79; Clark v. Horn, 122 Iowa, 375; Cross v. Snakenberg, 126 Iowa, 636; State v. Rand, 39 Minn. 502; Revenue Agent v. Clarke, 80 Miss. 134.)
It was said in Douglas Co. v. U. P. R. W., 5 Kan. 615:
“In equity there is a maxim that equity will consider as done that which ought to be done', and that it will look upon things agreeii to be done as actually performed. As an application of this maxim, equity generally considers that when land is sold on credit, and the deed is to be made when the purchase money is paid, that the land at the time the sale is made becomes the vendee’s, and the purchase money the vendor’s; that the vendor becomes at once the trustee ■of the vendee with respect to the land, and the vendee the trustee of the vendor with respect to the purchase money. But-this maxim never applies where time is of the essence of the contract, and where the land is subject to absolute forfeiture on failure of some condition of the sale being performed; for there is no necessity in such a case for courts of equity to resort to .any such fiction, and-equity never looks upon a thing as done which ought not to be done, nor in. favor of any party except one that has. a right to pray that it may be done. In such a case no title, legal or equitable, passes until every condition of the sale is performed ; and if such condition is not performed at the exact time that it should be performed, no title ever passes.” (p. 622.)
The distinction here made illustrates the difference between this case and Brown v. Thomas, Sheriff, 37 Kan. 282. In the latter case time was made the essence •of the contract, and all rights of the purchaser were immediately forfeited upon the failure to pay at the ■exact time. On the same theory, in the Douglas county case it was held that the purchaser at the time of the ■execution of the contract acquired no title, legal or equitable. In the case at bar, however, the contracts may be properly designated as contracts of sale and not contracts to sell. The sale and part payment were made in each case; possession was to be delivered on March 1, 1907, and presumably was delivered before the levy of the taxes in question, which were for the year 1908. The purchaser assumed the unconditional obligation to pay the balance® of the purchase price and the taxes on the land, and by the conditions of “Exhibit B” it was inferentially provided that the seller might sue upon the contract for the purchase price and recover it as a debt. A personal judgment could be rendered for the amount of the purchase price, if unpaid. The purchaser became the owner of the land; the seller became the owner of the debt. The credit was secured by the legal title to the land, which the seller should not be compelled to convey until the debt was paid. The same may be said, practically, of “Exhibit A,” except as to the last paragraph thereof, in which it is provided in substance that, if the purchaser fail to make the deferred payments within a reasonable time after the same become due and payable, then the contract shall cease and terminate and be forever void.” This is not making time of the essence of the contract. It is a provision in favor of the seller. He may, upon failure of the purchaser for an unreasonable length of time, avoid the contract, but the purchaser .can not by his own fault avoid it.
The case of Bohart v. Investment Co., 49 Kan. 94, was an action brought by the investment company to recover judgment for the balance of the purchase price upon twelve written contracts for the sale of' lots. The contracts seem to be quite similar to those in this case, particularly to “Exhibit A.” In the opinion it was said:
“The provision in the contracts making them null and void if Bohart made default in the payment of his installments, or any installment, was for the benefit of the investment company. The company could have insisted upon this provision, and had the contracts annulled. It also had the right or option to declare a forfeiture for the nonpayment of the installments, or any installment; but it also could waive that right..... A waiver of the right to declare a forfeiture for nonpayment at a specified time is not a rescission of the contract. The investment company, as .the vendor, is entitled to its money upon the contracts, and the vendee to the lots therein described.” (p. 99.)
Judgment was rendered against the purchaser for the balance of the purchase price.
In Chambers v. Anderson, 51 Kan. 385, suit was brought against Chambers and his wife to recover judgment for the balance of the purchase price on a contract of sale of real estate, which contract was much more strict in its provisions in regard to time of payment and for avoiding the contract in case of failure or default, and of forfeiture of all rights by the purchaser, than those in this case. The defendants therein pleaded that the contract, by their failure to make the payments, was avoided, and the court held that the contract was not voidable at the option of the purchaser, but only at the option of the seller, and affirmed the judgment in favor of the seller against the purchaser for the unpaid balance of the purchase price.
It should further be remarked that the term “credit,” as used in the assessment and taxation laws, was defined in section 2 of chapter 34 of the Laws of 1876 (Gen. Stat. 1901, § 7503) as follows:
“The term ‘credit,’ when used in -this act, shall mean and include every demand for money, labor or other valuable thing, whether due or to become due, but not secured by lien on real estate.”
Chapter 408 of the Laws of 1907 (see Gen. Stat. 1909, § 9215 et seq.), still in force, repealed the entire section in which the foregoing definition occurred, and omitted the definition from the section enacted in lieu thereof. This leaves the meaning of “credit” to be determined — that is, Is it included in the term “personal property”? The present statute (Laws 1907, ch. 408, § 1, Gen. Stat. 1909, § 9215) defines “personal property,” as above, and the definition includes credits generally, as we have seen. It follows that had it been held in Brown v. Thomas, Sheriff, 37 Kan. 282, that the property of the plaintiffs therein was a credit secured by a lien on the real estate it would not have been subject to taxation, and the decision could not have been changed thereby.
We hold, therefore, that, even under “Exhibit A,” the seller had a cause of action, after default of payment by the purchaser, to recover the unpaid balance of the purchase price. We conclude, therefore, that the contracts in question were personal property, and taxable. The unpaid purchase price therein is an indebtedness due, or to become due, from the purchaser to the seller, the payment of which was secured by the legal title to the land sold, which title was held in trust for the seller until such payment should be made. .
The judgment is reversed and the case is remanded, with instructions to render judgment in favor of the defendants. | [
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The opinion of the court was delivered by
Mason, J.:
Henry H. Routh brought ej ectment under a tax deed against the board of county commissioners of Finney county and recovered a judgment, from which an appeal is taken. The defendant practically admits that the plaintiff established his right to recover unless he was estopped to assert title under the tax deed by k judgment rendered in an action previously brought by him for the rent of the same property.
The claim for rent was originally presented to the county boa,rd. It was disallowed, and Routh appealed to the district court. A trial there resulted in a judgment against him. He now maintains that this previous judgment can not constitute an estoppel in the present action for the reason that the district court had only appellate jurisdiction in the case, and as the county board had no jurisdiction to adjudicate a question of title to real estate the district court on appeal had none. This argument assumes that the commissioners in effect constitute a court and exercise a strictly j udicial function in passing upon claims against the county. That is the rule in many states (7 A. & E. Encycl. of L. 1003; 55 Ana. St. Rep. 203, note), but not in Kansas. (Commissioners of Leavenworth v. Keller, 6 Kan. 510.) In the case cited it was said:
“It is true that the allowance was so far judicial that an appeal could be taken from the decision, if adverse to the claimant; but not in the sense which is usually given to the word judicial. The appeal is given that the case may be heard judicially, and the method of getting the case into court is by appeal.” (p. 522.)
As suggested by the language quoted, what is called an appeal is really only a means of getting the controversy before a court. It is a substitute for filing a petition and causing a summons to issue. The district court in the one case as in the other acquires and exercises original, and not appellate, jurisdiction, and has power to pass upon a question of title to real estate if the validity of-the claim in controversy is affected thereby.
If .the plaintiff’s right to recover rent had been denied by the district court upon the ground that his tax deed was void, doubtless he would have been precluded from asserting a title thereunder in the ejectment action. But this is not shown to have been the case. In the litigation concerning the rent there were no formal pleadings. The trial was had without a jury. The plaintiff offered- his tax deed in evidence. The parties agreed that at sometime not stated the defendant had fenced up the property and claimed it under a mortgage. There seems to have been no evidence or agreement as to the rental value. No special findings were made, nor was the ground of the decision for the defendant stated in the judgment or elsewhere in the record. The general finding for the defendant did not necessarily imply a decision that the plaintiff had no title. In order to recover he had to establish not only title on his part, but also such occupancy by the defendant as created an obligation to pay rent to the owner. The judgment against him may be said to have determined •either that he had no title or that the defendant had not so occupied the property during the period for which rent was claimed, but it did not necessarily determine that both these conditions existed, and the record does not show upon which it was actually based. 'It might be argued that, in view of the language of the admission concerning the fencing of the property,, the trial court ought to have decided, and therefore-should be deemed to have in fact decided, that the defendant did occupy the property under such circumstances as to incur a liability to the owner for rent. But with equal force it may be said that as the tax deed appears to be valid the court should be deemed to have held that it conveyed a good title. Perhaps, also, there should be considered the possibility that the-court may have ruled against the plaintiff upon the ground that he failed to prove any value of the use of' the property. Inasmuch as the judgment was the necessary result of a determination against the defendant upon either of the issues involved, and the record does; not show upon which it was in fact based, it does not-constitute an adjudication as to either.
“In the absence of proof that a particular issue actually was tried and determined in arriving at a former-judgment, it is conclusive by way of estoppel only as to those facts without the existence and proof or admission of which it could not have been rendered; in other-words, it is conclusive evidence of whatever it was necessary for the court or jury to have found in order to-warrant the decision or verdict in the former action,, and no further.” (23 Cyc. 1308.)
“A judgment is not res judicata as to a question not appearing upon the face of the record, or shown by-extrinsic evidence to have been determined in the action. If there be any uncertainty as to the precise-issue involved and determined in the action, as, for example, if it appear that several distinct matters were-litigated, upon any one or more of which the judgment; may have turned, the whole matter of the action will be at large and open to subsequent controversy.” (24-A. & E. Encycl. of L. 773.)
The defendant invokes a statement often made — that a judgment is final as to every matter which the parties, might have litigated in the case and which they might, have had decided. (Hentig v. Redden, 46 Kan. 231.) That expression is obviously too broad. The true rule was thus stated in Stroup v. Pepper, 69 Kan. 241:
“The rule that a judgment in bar, or as evidence in estoppel, is binding not only as to every question actually presented and considered and on which the court rested its decision, but also as to every question that might have been presented and decided, does not apply to a different cause of action between the same parties, except as to questions shown to have been actually decided in the former action.” (Syl. ¶ 1.)
The judgment in the first action finally settled that the defendant owed the plaintiff nothing for. rent, but for want of pleadings or special findings, or something to take their place, it settled nothing else. In a subsequent action the plaintiff could not maintain a right to recover rent upon some new ground. In that sense anything that he could have litigated in his action for rent is regarded as having been actually litigated, but that is the extent to which the rule applies in such a case.
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The opinion of the court was delivered by
Porter, J.:
Nettie M. Holyfield loaned to J. W. Har-> rington $1000 and took his note for that amount dated December 12, 1907, due three years after date, signed by J. W. Harrington, with Mattie Harrington, G. A. Perkins and John A. Stark as sureties. Two weeks afterward Nettie M. Holyfield went to the home of Harrington and informed him that the time of payment was longer than she desired and Harrington altered the note by scratching out the words “three years” and writing in the words “one year.” The note as changed reads as follows:
“$1000. One year DECEMBER 12, 1907.
Three years after date we promise to pay to the order of Mrs. Nettie M. Holyfield, one thousand dollars, at . . . Value received, with 7 per cent from date until paid. ' Interest payable annually.
No............Due Dec. 12, 1910.
J. W. Harrington,
Mattie Harrington,
G. A. Perkins,
Jno. A; Stark.”
A day or two' afterward Nettie M. Holyfield took the note in its changed condition to two of the sureties, Perkins and Stark, and asked them to consent to the note as altered. Thereupon they signed on the back of the note the following memorandum:
“We agree to and except change of time from three years to one year. G. A. Perkins,
Jno. A. Stark.”
In an action brought on the note as altered Nettie M. Holyfield recovered judgment, from which the sureties Perkins and Stark appeal.
The change in the time of payment was a material alteration. (Laws 1905, ch. 310, § 132, Gen. Stat. 1909, § 5378.) The contention of the appellants is that there was no consideration for their agreement to be further bound by the note, that the material alteration in the original note released them, and that a new consideration was necessary to support the new agreement. A material alteration in a negotiable instrument made without the consent of a party will discharge him. (Horn v. Newton City Bank, 32 Kan. 518; Bank v. Wangerin, 65 Kan. 423.) But a party who consents to such alteration or authorizes it to be made will be bound by the instrument (Laws 1905, ch. 310, § 131, Gen. Stat. 1909, § 5377) and it can not be doubted that such alteration may be ratified by the person affected by it so as to bind him as fully as though he had authorized it in the first instance. (Stewart v. First Nat. Bank, 40 Mich. 348; Goodspeed v. Cutler, 75 Ill. 534; First National Bank of Trenton v. Gay, et als., 63 Mo. 33.)
“It is quite obvious that where all the parties to a bill or note expressly agree to a ■ change in any' of its terms that they can not complain of such change as an alteration., They have as much right to change as to make a contract. And where all do not consent, those consenting are bound, while the rest are discharged. Consent may be given before the change is made, or it may be given afterward by ratification; It may be express, or it may be implied from custom, or from the acts of the parties.” (2 Daniel, Neg. Inst., 5th ed., § 1401.)
(See, also, 3 Randolph, Com. Paper, 2d ed., § 1766. Tiedeman, Com. Paper, § 396.)
The ratification of such an alteration will be implied where the facts are such as to warrant the implication. (Weed v. Carpenter [N. Y. Supr. Ct.], 10 Wend. 403; Bell v. Mahin et al., 69 Iowa, 408.)
It is not necessary in the present case to resort to implication because the appellants indorsed upon the instrument itself their written consent to the alteration. The real question here is whether a new consideration is necessary to support the contract of ratification. On this there is a slight conflict, but the great weight of authority is against the necessity for a new consideration. As a matter of fact, no independent consideration is required in the case of an ordinary surety or accommodation indorser, and there is no sound reason for requiring one in the case of ratification where by some act of the holder the surety has been released. The following cases are frequently cited as holding 'that a new consideration is necessary:
Warren, etc., v. Fant’s Trustee, 79 Ky. 1; Mulkey v. Long, 5 Idaho, 213; Wilson v. Hayes, 40 Minn. 531.
In the latter case the alteration was fraudulent and amounted to a forgery by the holder, and in the opinion it was said that no case has been found “where it has been'held that a forged instrument can be ratified so as to give the forger himself a right of action upon it.” (p. 540.) In the opinion it was further said:
“If the alteration was not fraudulent, so that it did not destroy the instrument, or at least did riot extinguish the debt, we can see how a subsequent assent to it would create a liability on the instrument as altered. Parties can alter their contract by mutual consent, and this requires no new consideration, for it is merely the substitution of a new contract for the old one, and this is of itself a sufficient consideration for the new. And what a party may assent to when done he may assent to afterward, so as to bind himself, if there be a consideration to support it.” (40 Minn. 540.)
It is apparent therefore that the case is in accord with the weight of authority upon the precise question involved here.
Among numerous cases holding that no new consideration is necessary are the following:
Goodspeed v. Cutler, 75 Ill. 534; Pelton v. Prescott, 13 Iowa, 567; Stewart v. First Nat. Bank, 40 Mich. 348; Wester v. Bailey, 118 N. C. 193; Montgomery v. Crossthwait, 90 Ala. 553; Payne, Ex’r, v. Long, 121 Ala. 385; Kilkelly v. Martin, impleaded, etc., 34 Wis. 525; National Bank v. Rising, [N. Y. Supr. Ct.] 4 Hun 793; Prouty v. Wilson, 123 Mass. 297; First National Bank of Trenton v. Gay, et als., 63 Mo. 33.
In the latter case the Missouri court used this language :
“There have been many refinements adopted about this doctrine of ratification; refinements which savor more of subtlety than of sound judgment. With some exceptions, not necessary to be adverted to here, the general proposition is, however, undoubtedly correct, that he who may authorize in the beginning, may ratify in the e¡nd. . . . And there is therefore no force in the point urged on our attention, that there would have to be a new consideration in order to attach validity to a confirmatory act.” (63 Mo. 39.)
Under the title “Alterations of Instruments” the editor of Cyc., after citing a few cases supra to the contrary, says:
“But the better rule seems to be that any one of the parties to an instrument who may have become discharged because of an alteration therein may ratify the unauthorized act so as to make himself liable without any new consideration, upon the principle that he who may authorize in the beginning may ratify in the end.” (2 Cyc. 172.)
(See, also, same title in 2 A. & E. Encycl. of L. 259 and in 3 A. & E. Enc. L. & P. 449. And to the same effect is State v. Paxton, 65 Neb. 110, 131, where the altered instrument was an official bond.)
Moreover, the question seems to be controlled by section 5377 of the General Statutes of 1909, which expressly provides for the ratification of altered instruments. It reads:
“Where a negotiable instrument is materially altered without the assent of all parties liable thereon it is avoided, except as against a party who has himself made, authorized or assented to the alteration and subsequent indorsers; but when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.”
No mention is made of any new consideration b'eing required in order to bind the assenting party, but the ■construction we give to the language is thát no independent consideration is necessary to bind any party to the instrument, surety or otherwise, who has himself made, authorized or assented to a material alteration.
The contention is made that the court erred in directing a verdict and that appellants were entitled to submit to the jury the question whether they signed the memorandum with knowledge of all the facts, and particularly whether the appellee concealed from them that one of their cosureties, Mattie Harrington, had been released. The rule is that whether the alteration is material is a question of law for the court and whether it was made with the consent of the parties is usually a question of fact for the jury. (Tiedeman, Com. Paper, § 396 and cases cited.) Here the ratification was in writing, signed by the appellants, and its effect was a question of law for the court the same as any other part of the instrument. Besides, both of the appellants testified that they signed the memorandum intending thereby to give their consent to the alteration, and there was no evidence of any misrepresentations and neither of the appellants claimed that any had been made. There was no controverted question of fact to submit to the jury, and the court rightly directed a verdict.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The only question for decision is whether a tax deed which had been of record for nine years, and during which time the grantee had been in possession of the land, is void upon its face.
The plaintiff contends that the deed is void upon its face because of the recital “whereas, at the place aforesaid said property was bid off by the county treasurer ■of said county, for the sum of thirteen dollars and six ■cents, the whole amount of taxes "and charges then due,” and the absence of a recital included in the statutpry form that “at the place aforesaid, said property could not be sold for the amount of tax and charges-thereon, and was therefore bid off by the county treasurer for said county.” (Laws 1876, ch. 34, § 138, Gen. Stat. 1909, § 9479.) The argument is that if the sale-was made under the general law'the treasurer had no authority to bid until it appeared that the property could not be sold for the amount of taxes and charges thereon,, which fact must be shown by a recital in the deed; and that if the sale was made under the act of 1891 (Laws 1891, ch. 162, §§ 1-3, Gen. Stat. 1909, §§ 9462-9464) the deed is void for want of recitals showing that the sale was so made.
The district court held that the deed purports upon its face to be issued under the provisions of the general law. As the deed recites that the land was bid off by the county treasurer, and does not recite the facts-authorizing such a bid under the general law, it is difficult to see how it purports to show a sale under that-law rather than under the act of 1891, which act directs the county treasurer to bid off all lands offered at tax sale in counties where its provisions have been adopted. To hold that the sale was made under that act involves no contradiction of anything contained in the deed. All its recitals are in harmony with such an interpretation. It is true that the deed does not recite that the county had adopted that act, but all reasonable presumptions and inferences must be indulged to support and not to overthrow a tax deed which has been of record more than five years. (Penrose v. Cooper, 71 Kan. 720; Rynearson v. Conn, 77 Kan. 160; Kessler v. Polkosky, 81 Kan. 69.)
A county treasurer may bid off property at a tax sale (1) under the general law when it can not be sold for the amount of tax and charges thereon (Laws 1876, ch. 34, § 114, Gen. Stat. 1909, § 9449), and (2) under the act of 1891, which requires the treasurer to bid off all lands so offered, no other bids being allowed (Gen. Stat. 1909, § 9463; Bigger v. Ryker, 62 Kan. 482). A recital that the land was bid off by the treasurer, in the absence of any recital that it could not be sold, seems therefore to imply that the bid was made under the act of 1891. The sale could not be made otherwise if the act had been adopted in that county. But it is contended that the adoption of the act could only be made to appear by extrinsic evidence," and that a tax deed can not be bolstered up in that manner. On the other hand it is argued that the evidence was not offered to prove any step in the-proceedings leading up to the deed> but solely to show what law governed such proceedings. The act referred to declares that:
“The provisions of this act shall apply only' to such counties in this state as shall by resolution of their respective boards of commissioners duly adopt the same. Said resolution shall be substantially as follows:
“ ‘Resolved, That this county adopt and accept the provisions of the act of the legislature of 1891, entitled “An act regulating the sale of real estate for delinquent taxes in such counties as shall adopt the provisions of this act.” ’
“From and after the adoption of such resolution the following provisions of law shall, as to such counties, govern the enforcement and collection of taxes, in addition to the laws now in force.” (Gen. Stat. 1909, § 9462.)
While evidence was received that a resolution as provided in the act had been adopted, it was unnecessary. A court must take judicial notice of public laws in effect generally throughout the limits of its territorial jurisdiction.. In Jones v. State, 67 Md. 256, in-a prosecution arising under a local-option law, which became effective in the county by adoption of the voters at an election, the court said:
“The court takes judicial cognizance of all such laws. Though local they are public and not private laws; and any question affecting the legal existence of the law belongs to the court. It was not necessary therefore for the indictment to contain a statement of all the formalities necessary to precede the law becoming operative. They were not facts for the jury to pass upon, and had no proper place in the indictment. (Slymer’s Case, 62 Md. 238, and Mackin v. State, 62 Md. 244.)” (p. 258.)
The same view was taken in Georgia in a prosecution arising under the local-option law of that state, where it was held that it is not necessary to prove that such laws are operative in the counties which have adopted them by a vote of the people, but that the court will judicially notice the law and declare that it is in effect. (Combs v. The State of Georgia, 81 Ga. 780; Woodard v. The State, 103 Ga. 496; Oglesby v. The State, 121 Ga. 602.)
A statute of Wisconsin provides that a city operating under a special charter may by ordinance adopt provisions of the general charter act, which ordinance shall operate as an amendment to its charter to that extent. In Davey v. The City of Janesville, 111 Wis. 628, the question was presented whether it was necessary to produce evidence of the passage of an ordinance for the purpose named in order to show that a provision of the general charter act was in' force. The court said:
“Courts are bound to take notice of the public statutes of the state wherein they are held. . . . Following the rule above stated, it would seem that if, by any ■ process deemed legal, such charter has been amended, this court will be obliged to take judicial notice of such change.” (p. 635.)
The question how the adoption of the provisions of a general statute by the voters of a city should be shown was considered in Prince v. Crocker, 166 Mass. 347. The court disposed of it briefly by saying: “We assume that such a vote of acceptance was duly passed. This is a fact of which the court should take judicial notice.” (p. 358.)
In Andrews v. Knox County, 70 Ill. 65, it was held that the court would take judicial notice of the result of an election on the question of the removal of a county seat, where the question was drawn in issue collaterally. (See, also, Rauch v. Commonwealth, 78 Pa. St. 490.)
If an inquiry is necessary to determine when a pub-lie law took effect, the investigation is by the judge rather than by the production of evidence at the trial. Thus the journals of the legislature are not read in evidence but are judicially noticed and examined by the court to determine whether a statute was constitutionally passed. (Division of Howard Co., 15 Kan. 194.) Judicial notice will also be taken of the date when a public statute takes effect. Where a statute provided that it should be in force one month after the transmission of a copy to each of the courts in the state, the date of the transmission to be recorded in the office of the secretary of state, it was held that evidence of the date of such promulgation was unnecessary. The court said:
“The tribunals of justice are required to know, and bound to take notice of public laws, whether brought under their attention or not. The discharge of this duty necessarily implies a knowledge of the time of publication; or supposes the means of attaining- it, without parties proving the fact.” (L’Eglise v. Brenton et als., 3 La. 435, 436.)
In this state the greater number of statutes are made to take effect by publication in a newspaper, and a certificate of the secretary of state that such publication has been made, and the date thereof, is required to be attached to each enrolled bill, which is declared by the statute to be evidence thereof (Gen. Stat. 1868, ch. 56, § 3, Gen. Stat. 1909, § 4723), but it will not be claimed that it is necessary to produce such certificate or an official copy in evidence before a court can give effect to the statute.
The doctrine of judicial notice does not imply the rejection of evidence, but it implies the acceptance of a matter as proved without requiring a party to pro■duce the evidence. (4 Wig. Ev. §§ 2566, 2567.) Thus the existence of a statute rests upon evidence which is usually the enrolled bill, which need not be produced, but if questioned it may, together with the journals ■of the legislature, be examined by the court. (Division of Howard Co., 15 Kan. 194.) Judicial notice does not preclude but invites judicial investigation, if necessary to reinforce previous actual knowledge. Its wise application in practice is wholesome, tending to uniformity and certainty, and promoting economy of ■expense and time.
“It is an instrument of great capacity in the hands of a competent judge; and is not nearly as much used, in the region of practice and evidence, as it should be. This function is, indeed, a delicate one; if it is too loosely or ignorantly exercised it may annul the principles of evidence and even of substantive law. But the failure to exercise it tends daily to smother trials with technicality, and monstrously lengthens them out.” (Thayer, A Prelim. Treatise on Ev. at the Com. L., p. 309.)
The decisions are not uniform upon the proposition that judicial notice may be taken of the local adoption of a general law (16 Cyc. 892; 7 Encyc. of Ev. 963), but for the reasons given it is held that the act of 1891 was in force in Decatur county when the tax sale in question occurred, of which fact the district court of that county might take judicial notice, and that the recitals in this deed, in the light of presumptions indulged in the situation here presented, are sufficient.
A tax deed containing the same recitals, and also • of record for over five years, was held sufficient in Gibson v. Branstool, 82 Kan. 59. But as the question arising upon the admission of evidence to prove the adoption of the act of 1891 was not raised in that case, the matters, there decided have been reconsidered, and the decision is followed.
It is also contended that the tax deed is void because the assignment of the certificate was made for a sum less than the cost of redemption at that date. By an exact computation the amount due was $20,297. By rejecting the fractions of a cent in the computation the amount would be slightly less than the sum received. This is within the rule declared in Troyer v. Beedy, 79 Kan. 502, and Gibson v. Branstool, supra.
Upon the findings of fact the judgment should have been for the defendants for costs. The judgment for the plaintiff is therefore reversed and the cause remanded with directions to enter judgment for the defendants. \ | [
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|
Briscoe, C.J.:
The State appeals the trial court’s imposition of a departure sentence when sentencing Jerry Richardson. The State contends the court’s reasons for a dispositional departure from the presumptive sentence set forth in the applicable sentencing grid were not substantial and compelling, as required by K.S.A. 1993 Supp. 21-4721(d)(2). We apply the standard of review applicable to a question of law and conclude the sentencing court’s consideration of the time elapsed since Richardson’s last felony and last person felonies, factors not considered in determining Richardson’s placement on the sentencing grid, is a substantial and compelling reason for departure in this case.
As a result of plea negotiations, Richardson pleaded guilty to driving with a suspended license, a third or subsequent conviction in violation of K.S.A. 1993 Supp. 8-262, a severity level 9 nonperson felony. The offense was committed on July 13, 1993. The presentence investigation report revealed Richardson’s criminal history included three person felonies, one nonperson felony, one person misdemeanor, and three nonperson or select misdemeanors. The three person felonies were juvenile adjudications committed 14 years earlier when Richardson was 16 years old. The presentence report stated that application of the Kansas Sentencing Guidelines Act (K.S.A. 1993 Supp. 21-4701 et seq.) to Richardson’s present conviction and past criminal history resulted in his placement within the nondrug grid, 9-A. A 9-A nondrug grid sentence is a presumptive sentence of 15 to 17 months’ imprisonment followed by a postrelease supervision period of 12 months. K.S.A. 1993 Supp. 21-4704.
Richardson moved for a dispositional departure, arguing the presumptive sentence was based upon juvenile adjudications that were 14 years old, the basis for the underlying driver’s license suspension was his failure to pay traffic tickets, and his driving with a suspended license in this instance was less heinous than if his license had been suspended for driving while under the influence. At the beginning of the sentencing hearing, the court denied the motion as untimely pursuant to local court rule. Richardson again requested a departure sentence during arguments at the hearing. Over the State’s objection, the court granted the request and dispositionally departed from the presumptive sentence. See K.S.A. 1993 Supp. 21-4703(h). Richardson was sentenced to a term of 16 months with potential good time of 3.2 months and postrelease supervision of 12 months. The court then granted Richardson probation for a period of 3 years following 30 days’ incarceration in the county jail and also ordered numerous special conditions of probation. The court stated its reasons for the dispositional departure: “Offenses which caused him to fall within the presumed prison sentence category occurred 14 years ago and since that time none of Defendant’s offenses have been person or violent crimes and no felony within last 10 years.”
I. Standard of review.
As regards appellate review of a departure sentence, K.S.A. 1993 Supp. 21-4721 provides in pertinent part:
“(a) A departure sentence is subject to appeal by the defendant or the state. The appeal shall be to the appellate courts in accordance with rules adopted by the supreme court.
“(d) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure:
(1) Are supported by the evidence in the record; and
(2) constitute substantial and compelling reasons for departure.
(f) The appellate court may reverse or affirm the sentence. If the appellate court concludes that the trial court’s factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for resentencing.” (Emphasis added.)
The State concedes the sentencing court’s reasons for departure satisfy 21-4721(d)(l) because they are supported by evidence in the record. The State’s challenge goes only to whether the reasons for departure are “substantial and compelling” as required by 21-4721(d)(2). Before this court can determine whether the sentencing court’s reasons for departure were substantial and compelling, we must first address the applicable standard of review. The legislative history of the Sentencing Guidelines Act reveals that the Kansas Legislature relied upon the guidelines of Washington, Minnesota, and Oregon when formulating sentencing guidelines for Kansas. While each state’s statutory language varies from that used in Kansas, the appellate courts of Washington, Minnesota, and Oregon have all addressed the question of the applicable standard of review when an appeal is taken from a departure sentence.
A. Washington.
The State of Washington enacted guidelines pursuant to its Sentencing Reform Act of 1981 (Wash. Rev. Code § 9.94A.010 et seq. [1994]). The Act allows a sentencing court to depart from the presumptive sentence “if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.” Wash. Rev. Code § 9.94A.120(2). The stated purpose of the Act is “to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences,” and to
“(1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender’s criminal history;
(2) Promote respect for the law by providing punishment which is just;
(3) Be commensurate with the punishment imposed on others committing similar offenses;
(4) Protect the public;
(5) Offer the offender an opportunity to improve him or herself; and
(6) Make frugal use of the state’s resources.” Wash. Rev. Code § 9.94A.010.
Wash. Rev. Code § 9.94A.210(4) provides that in reviewing a departure sentence, a Washington appellate court may reverse if it finds:
“(a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.”
Appellate review of a departure sentence is keyed to the above statutory language and involves three determinations:
“First, the appellate court determines whether the trial court’s reasons for imposing an exceptional sentence are supported by the record. This is a factual inquiry and the trial court’s findings will be upheld unless they are clearly erroneous. [Citations omitted.] Second, the reviewing court determines, ‘as a “matter of law,” ’ whether the trial court’s reasons justify an exceptional sentence. [Citations omitted.] Third, the reviewing court must determine whether the trial court abused its discretion and imposed a sentence which was ‘clearly excessive’ or ‘clearly too lenient.’ [Citations omitted.]” State v. Hodges, 70 Wash. App. 621, 623, 855 P.2d 291 (1993).
When determining whether a sentencing court’s reasons are substantial and compelling, the court again stated in State v. Freitag, 74 Wash. App. 133, 138, 873 P.2d 548 (1994): “We review the sufficiency of the sentencing judge’s reasons as a matter of law.”
B. Minnesota.
The State of Minnesota has enacted guidelines containing a purpose statement similar to that of Washington. With regard to departures, the Minnesota guidelines state: “While the sentencing guidelines are advisory to the sentencing judge, departures from the presumptive sentences established in the guidelines should be made only when substantial and compelling circumstances exist.” Minn. Stat. Annot. § 244 Appendix (West 1995 Supp.).
In State v. Harwell, 515 N.W.2d 105, 109 (Minn. App. 1994), the court stated:
“An upward departure is within the sentencing court’s discretion if substantial and compelling aggravating circumstances are present. [Citation omitted.] If the record supports a finding of substantial and compelling circumstances, this court will not interfere with the sentence ‘unless it has a “strong feeling” that the sentence is disproportional to the offense.’ [Citation omitted.]”
In State v. Bauerly, 520 N.W.2d 760 (Minn. App. 1994), the court applied an abuse of discretion standard when reviewing a departure sentence. The court concluded the sentencing court did not abuse its discretion in imposing a downward durational departure when it cited as grounds for departure the defendant’s remorse and noted the amount of money stolen was less than is typical in a case of the same severity level. Thus, unlike Washington, Minnesota appears to give considerable deference to a sentencing court’s decision to depart from a presumptive sentence.
C. Oregon.
In Oregon, review of a departure sentence is governed by Or. Rev. Stat. § 138.222(3) (1994 Supp.):
“In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the rules of the State Sentencing Guidelines Board, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure from the sentences prescribed by the rules of the State.Sentencing Guidelines Board:
(a) Are supported by the evidence in the record; and
(b) Constitute substantial and compelling reasons for departure.”
The language of the Oregon statute is nearly identical to K.S.A. 1993 Supp. 21-4721(d).
In State v. Wilson, 111 Or. App. 147, 826 P.2d 1010 (1992), the court addressed the standard of review applicable to departure sentences imposed pursuant to Or. Rev. Stat. § 138.222(3). In Wilson, defendant pleaded guilty to promoting prostitution. Although the presumptive sentence was 29 to 34 months’ incarceration, the sentencing court durationally departed and imposed a sentence of 60 months’ imprisonment. Defendant appealed the sentence, arguing the six aggravating factors relied upon by the sentencing court were not substantial and compelling reasons for departure as required by § 138.222(3)(b). Defendant did not argue the reasons justifying departure were not supported by the evidence. The court stated:
“[0]ur review is of the sentencing court’s factual basis and reasons for the departure, not the decision whether to depart. [Citation omitted.] ....
“Under ORS 138.222(3)(b), we review whether the reasons given by the court are appropriate. That review is limited to whether the reasons are substantial and compelling. That is, we review the explanation of why the circumstances are so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines. If the explanation does not demonstrate that, we must remand for resentencing. ORS 138.222(5). If it does, we will not disturb the trial court’s exercise of discretion.” Ill Or. App. at 149-51.
The court applied a standard of review applicable to a question of law. The court stated it must determine whether the reasons given by the sentencing court measure up to the statutory standard of “substantial and compelling.” That is, the sentencing court’s explanation and its reasons for departure must demonstrate that “imposition of the presumptive sentence would not accomplish the purposes of the guidelines.” Ill Or. App. at 151. In determining whether the purposes of the guidelines have been met, the appellate court would interpret the guidelines and determine as a matter of law the propriety of the sentence imposed.
“Our conclusion is consistent with the legislative history of ORS 138.222(3). Senator Springer provided a summary statement, which is relied on in the commentary to OAR 253-08-001. Review of ‘substantial and compelling’ is to be comprised of:
T) The Evidentiary Test: Are the facts stated by the sentencing judge in justification of the departure supported by the record?
‘2) The Law Test: Are the reasons stated on the record for the departure adequate to justify a sentence outside the standard range . . . ?’” Ill Or. App. at 151.
In deciding the merits of the case, the Wilson court remanded for resentencing because it determined “the [trial] court’s explanation of 3 of the combined factors does not demonstrate why the circumstances are exceptional and we cannot tell what sentence the court would have imposed had it found fewer than the 6 factors.” Ill Or. App. at 152. That is, the court determined as a matter of law that the reasons did not demonstrate that imposition of the presumptive sentence would not accomplish the purposes of the Oregon guidelines.
In sum, in determining whether a sentencing court’s reasons for departure are substantial and compelling, there is authority from other jurisdictions to support either an abuse of discretion or a question of law standard of review.
D. Kansas.
We turn to the applicable Kansas provision, K.S.A. 1993 Supp. 21-4721(d). Subsection (1) requires a review of the sentencing court’s findings of fact and reasons justifying departure to determine whether they “[a]re supported by the evidence in the record.” This language suggests a substantial competent evidence standard of review. Subsection (2) requires a review of the sentencing court’s findings of fact and reasons justifying departure to determine whether they “constitute substantial and compelling reasons for departure.” This language suggests a standard of review applicable to a question of law. The appellate court is to determine whether the reasons given for departure rise to the level of “substantial and compelling” when the language and purposes of the Kansas Sentencing Guidelines Act are examined. See State v. Donlay, 253 Kan. 132, 133, 853 P.2d 680 (1993) (interpretation of a statute is a question of law).
The Senate Judiciary Committee’s minutes do not indicate the legislature’s intent regarding appellate review of departure sentences. In the summary of the testimony provided by Ben Coates, Executive Director of the Kansas Sentencing Commission, to the Senate Judiciary Committee, the Commission indicates its intent is to change the standard of review from an abuse of discretion standard to whether the sentencing court has presented substantial and compelling reasons to depart from the presumptive sentence. While this statement does not set forth the applicable standard of review, it is clear the Commission in making its recommendations to the legislature did not intend that an abuse of discretion standard of review would apply to appellate review of departure sentences.
We conclude that when a departure sentence is appealed, 21-4721(d) requires an appellate court to determine whether the sentencing court’s findings of fact and reasons justifying departure (1) are supported by substantial competent evidence and (2) constitute substantial and compelling reasons for departure as a matter of law. By enacting the appellate review language recommended by the Kansas Sentencing Commission, which also mirrors the appellate review language enacted in Oregon, the Kansas Legislature intended the application of the same two-step test most clearly delineated by Senator Springer of Oregon: (1) an evidentiary test: Are the facts stated by the sentencing judge in justification of departure supported by the record? and (2) a law test: Are the reasons stated on the record for departure adequate to justify a sentence outside the presumptive sentence? If an appellate court finds that either test has not been met, the sentencing court has erred in imposing a departure sentence, and resentencing by the sentencing court is required.
Accordingly, under 2I-4721(d)(2), we must determine whether, as a matter of law, the sentencing court’s findings of fact and reasons justifying Richardson.’,s dispositional departure constitute substantial and compelling reasons for departure. When determining a question of law, an appellate court is not bound by the decision of the trial court. Donlay, 253 Kan. at 134.
II. Substantial and compelling reasons to depart.
The State concedes the facts and reasons for departure are supported by the evidence but argues the trial court’s reasons for the departure are not substantial and compelling. K.S.A. 1993 Supp. 21-4716(b)(l) provides:
“Subject to the provisions of subsection (b)(3), the following nonexclusive list of mitigating factors may be considered in determining whether substantial and compelling reasons for a departure exist:
(A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.
(B) The offender played a minor or passive role in the crime or participated under circumstances of duress or compulsion. This factor is not sufficient as a complete defense.
(C) The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. The voluntary use of intoxicants, drugs or alcohol does not fall within the purview of this factor.
(D) The defendant, or the defendant’s children, suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.
(E) The degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense.” (Emphasis added.)
The statute expressly states the departure factors listed are “nonexclusive.” Legislative history indicates an expectation on the part of the legislature that more precision in the departure factors will develop over time as Kansas courts establish a common law of sentencing. The legislature recognized that the guidelines are designed to regulate judicial discretion in sentencing but not eliminate it. Moreover, the guidelines contemplate that a sentencing judge will sentence similarly situated offenders within the applicable sentencing grid, but, where an individual is substantially more or less culpable than any other offender with the same criminal history committing the same crime, the sentencing judge may impose a sentence that departs from the presumed sentence set forth in the applicable sentencing grid. In addition,
“no individual should be sentenced to prison solely or primarily to be rehabilitated. However, that general consideration does not mean that rehabilitative factors are always irrelevant in deciding whether to sentence an individual to probation rather than imprisonment. In exceptional cases, the court should be able to consider a defendant’s amenability to probation when deciding whether to grant a dispositional departure.” Minutes of the Senate Committee on the Judiciary, January 24, 1992.
The State cites State v. Cizl, 304 N.W.2d 632 (Minn. 1981), and State v. Pascal, 108 Wash. 2d 125, 736 P.2d 1065 (1987), for the proposition that a defendant’s criminal history cannot be used as justification for a departure sentence when the sentencing guidelines have already taken the defendant’s criminal history into account in determining the presumptive sentence within the grid. While this rule would also apply to the Kansas Sentencing Guidelines Act, the sentencing court remains free to consider factors that a defendant’s criminal history does not take into account. Here, the court considered a factor beyond the type and number of offenses in Richardson’s criminal history when it noted that the person felonies that placed Richardson in criminal history category A are 14 years old, and that he had not committed a felony of any type for 10 years. By considering the time elapsed since Richardson’s last felony and last person felonies, the sentencing court was using a departure factor not employed in determining Richardson’s criminal history.
In determining whether the court’s reasons for departure are substantial and compelling, an appellate court’s review “shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure: (1) Are supported by the evidence in the record; and (2) constitute substantial and compelling reasons for departure.” K.S.A. 1993 Supp. 21-4721(d). An appellate court’s review is limited to the findings of fact and reasons justifying departure specifically enunciated by the sentencing court. An appellate court reviewing a sentencing court’s reasons for departure will not conduct a broader search of the record to examine all facts available to the sentencing court to determine whether there were substantial and compelling reasons for departure. Accordingly, because the sentencing court did not specifically rely upon Richardson’s argument that the facts underlying two of his person felonies were not serigus, this court will not address that factor in determining whether departure was proper.
The sentencing court reasoned that the offenses which caused Richardson to fall within a presumptive imprisonment grid box occurred 14 years ago. The court also noted that Richardson had not committed a felony within the past 10 years. The State cites cases which hold that a sentencing court cannot rely upon a defendant’s lack of criminal history as a mitigating factor because criminal history is already used to place a defendant in the appropriate sentencing grid and cannot be used twice. Yet, in this case, the court relied upon a factor which the sentencing grid does not take into account, i.e., the time that had elapsed since Richardson’s last felony and last person felony convictions.
Because the sentencing grid does not take into account the time elapsed since a defendant’s last felony conviction, a sentencing court can consider this factor in sentencing. The time elapsed since a defendant’s last felony conviction may provide a substantial and compelling reason for a departure sentence, depending upon the facts of the case. Whether this factor is a substantial and compelling reason for departure must necessarily be viewed in light of the purposes of the guidelines and the facts of the case.
In enacting the guidelines, the legislature intended to reduce prison overcrowding while protecting public safety by creating a distinction between more serious and less serious offenders. In addition, the guidelines were intended to standardize sentences so that similarly situated offenders would be treated the same, eliminating or reducing the opportunity for both racial bias and geographical bias. State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994). The present case, however, is atypical. Richardson’s prior criminal history, which included three person felonies, resulted in his placement in criminal history category A, the most serious classification. K.S.A. 1993 Supp. 21-4709. Although Richardson’s prior person felonies cannot be disregarded when determining his criminal history (K.S.A. 1993 Supp. 21-4710[d][6]), the court was justified in giving weight to the time which had elapsed since Richardson’s commission of those felonies. We conclude that given the nonviolent nature of Richardson’s current offense and the purposes of the guidelines, the sentencing court did not err as a matter of law when it examined Richardson’s criminal history and concluded the time elapsed since Richardson’s last felony and last person felonies were substantial and compelling reasons to depart from the presumptive sentence.
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|
Elliott, J.:
Colonial Charter Holdings, Inc., (CCH) appeals the trial court’s order granting the Kansas Insurance Commissioner’s request to extend the deadline for filing claims (bar date) against National Colonial Insurance Company (NCI), an insolvent insurer.
We reverse and remand with directions.
The facts are essentially undisputed. Ron Todd, as the Kansas Insurance Commissioner, filed a petition for liquidation of NCI. The NCI directors had previously adopted a resolution which “hereby consents” to an order by Division 9 of the Shawnee County District Court for the rehabilitation of the corporation. Division 11 entered the agreed order.
Todd was appointed as liquidator and ordered to notify all potential claimants to file their claims by January 19, 1994. On January 19, 1994, Todd filed an application to amend the agreed order to extend the bar date to July 18, 1994, and the trial court, ex parte, issued an order extending the bar date as requested.
CCH, the sole shareholder of NCI, claims it was not notified of the court’s January 19 order. CCH then sent Judge Dowd a letter stating its intention to file an objection to Todd’s application. Judge Dowd responded with a letter stating he was “respectfully denying any relief requested.”
This appeal eventually followed.
We need to pass over numerous preliminary hurdles before addressing the merits of this appeal.
Jurisdiction
An insurance company may appeal an order of liquidation. K.S.A. 40-3622(e)(l). The order on appeal here is from an order that “revised and amended” the original liquidation order.
K.S.A. 60-2101(a) allows a party to appeal as of right from an order discharging or modifying a provisional remedy. Receivership orders are provisional remedies. See Braun v. Pepper, 224 Kan. 56, 60, 578 P.2d 695 (1978). And the Insurers Supervision, Rehabilitation and Liquidation Act, K.S.A. 40-3605 et seq., defines “receiver” to include a liquidator. K.S.A. 40-3607(o). Thus, the liquidation order is synonymous with a receivership. Accordingly, the liquidation order is a provisional remedy and any modification of it is appealable pursuant to K.S.A. 60-2101(a).
While CCH appealed pursuant to K.S.A. 60-2101(a), that statute does not require an appellant to identify the statute used to invoke appellate jurisdiction. See generally State v. Craig, 254 Kan. 575, 867 P.2d 1013 (1994).
We have jurisdiction to decide this appeal on its merits.
Mootness
The extended bar date has passed. But we can decide cases, though technically moot, where they involve issues of statewide interest and importance. See Smith v. Miller, 213 Kan. 1, 5, 514 P.2d 377 (1973); Edgington v. City of Overland Park, 15 Kan. App. 2d 721, 725, 815 P.2d 1116 (1991).
This case involves a series of statutes enacted in 1991 which has generated little case law. The Commissioner and the Shawnee County District Court — the only court with jurisdiction over these cases (K.S.A. 40-3608(b); K.S.A. 40-3609) need roadmaps for this issue, which likely will arise in the future. And this case involves potential claimants (mainly in California), so the appeal has some national interest.
We shall proceed to the merits of this appeal despite the possible mootness.
Is the agreed order a “consent decree” — and if so, can it be modified ex parte?
CCH, of course, argues the agreed order for liquidation is essentially a consent decree and thus cannot be modified ex parte. Commissioner Todd argues that he, as liquidator, did not compromise anything and did not waive anything, and therefore, the order cannot be a consent decree as contemplated by Steele v. Guardianship & Conservatorship of Crist, 251 Kan. 712, 840 P.2d 1107 (1992), and Beaver v. Kingman, 246 Kan. 145, 785 P.2d 998 (1990). The “agreed” order, in accordance with the petition, required the liquidator to notify potential claimants to file their claims by January 19, 1994.
By consenting to the petition and the subsequent order, NCI waived its right to “take such actions as are reasonably necessary to defend against the petition [for liquidation].” K.S.A. 40-3620(a). In addition, NCI is deemed to have conceded to the terms of the order because it did not exercise its statutory right to appeal the liquidation order. K.S.A. 40-3622(e)(l). This meets the definition of a consent decree.
Does the district court have the power to modify the consent decree? Steele and Beaver answer the question in the affirmative. Steele, 251 Kan. at 719-20; Beaver, 246 Kan. at 148. The ultimate question, then, is under what circumstances may the court order the modification of a consent decree?
At this point, a final preliminary hurdle must be considered. CCH filed this appeal on February 8, 1994, after receiving the trial judge's letter stating he was “respectfully denying any relief requested.” On February 18, the trial court set March 18, 1994, to hear arguments on various motions, including CCH’s objections to the extension of the bar date.
Todd argues the trial court would have considered those objections but for the fact CCH divested the trial court of jurisdiction by filing the appeal prior to the hearing. We disagree. See Supreme Court Rule 2.03 (1994 Kan. Ct. R. Annot. 8). Further, the trial court is not deprived of jurisdiction to hear and decide a motion to reconsider simply because a notice of appeal is filed prematurely. Hundley v. Pfuetze, 18 Kan. App. 2d 755, 757, 858 P.2d 1244 (1993).
Finally, we reach the issue around which this appeal revolves: Did the trial court improperly modify the consent liquidation order ex parte? We answer in the affirmative.
Brown v. Fitzpatrick, 224 Kan. 636, 640-41, 585 P.2d 987 (1978), holds that all actions taken pursuant to K.S.A. 60-260(b) must be with due process of law; notice must be given to all parties affected stating the reasons for the proposed action.
There are circumstances under which a district court may itself modify the terms of a consent decree. “Before the court may modify a consent decree under any circumstances, however, it must notify the parties of its intent and afford them an opportunity to present relevant evidence and argument on the need to modify.” U.S. v. State of Colo., 937 F.2d 505, 510 (10th Cir. 1991).
The trial court improperly modified the consent decree without notifying the interested parties and holding a hearing. We recognize the potential futility of our holding. On remand, after notice and a hearing, the trial court might validate the extended bar date we vacate, but at least it will have been after affording basic due process to the parties.
Reversed and remanded with directions to vacate the order extending the claims bar date. | [
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|
Lewis, J.: J.G.
is the natural mother of N.D.G., who was bom July 28, 1984, and J.J.G., who was bom January 18, 1986. J.R. is the adoptive father of the children and also the uncle of J.G. D.G. is the mother of J.G. and the grandmother of the two children. D.G. maintains the physical custody of N.D.G., while J.J.G. is in the physical custody of J.R. J.R. and D.G. both instituted actions under the Kansas Code for Care of Children (KCCC), K.S.A. 38-1501 et seq., which resulted in the termination of the parental rights of J.G. J.G. appeals from that decision.
D.G. filed a child in need of care petition on behalf of each child in the district court of Shawnee County. Approximately two months later, J.R. filed separate petitions on behalf of each child, seeking to terminate the parental rights of J.G. Ultimately, the trial court permitted the pleadings to be amended to request that the children be found in need of care and that J.G.’s parental rights be severed. Venue was transferred to Finney County. The cases were consolidated for trial and, after trial, the trial court entered its order, finding the children to be in need of care and terminating J.G.’s parental rights.
The record reflects a turbulent and unhappy family histoiy. J.G. has been married four times; the two children were bom as a result of her first marriage.
J.G. maintained custody of N.D.G. from birth to the age of two years. J.G. then divorced the father of N.D.G., who was awarded custody of the child. In March 1987, N.D.G. returned to live with J.G.
J.J.G. was bom prematurely and spent the first four or five weeks of his fife in the hospital. He was with his mother less than four months when he was removed from her care by SRS. At that time, he had lesions on his head, cuts or bums on four toes, and a diaper rash that was so severe his skin was hard in some places and raw in most.
L.F. is the wife of J.R. J.J.G. was placed in the custody of L.F. until late 1987, when he was again placed in the care of J.G.
For a period of time, the children alternated between the home of J.G., the home of J.R. and L.F., and the home of D.G. In April 1988, J.J.G. returned to live with J.R. and L.F., while N.D.G. moved to the home of D.G. The children have remained in these homes since that time with the exception of occasional visits with their mother.
Throughout the years, J.G.’s lifestyle has appeared incompatible with providing a fit environment for her children. Her domestic relationships have, for the most part, been abusive and turbulent. Her most recent husband is identified as N.R. J.G. has filed at least three protection from abuse cases against N.R. and failed to appear or otherwise pursue any of those cases. J.G. has attempted suicide on at least two occasions. From January 3, 1991, to May 19, 1993, she has been involved in at least 11 documented police investigations, ranging from a complaint that one of her male friends threw a cocaine scale at her to a report that she had threatened to kill a female friend of N.R. There was testimony of cocaine use by J.G. as recently as April 1993. J.G.’s parental rights were severed in July 1993.
In 1989, J.R. adopted N.D.G. and J.J.G. During the adoption proceedings, it was understood and stipulated that J.R. would be the resident custodial parent until farther agreement of the parties or order by the court. J.R. has remained the resident custodial parent since the time of the adoption decree. However, it is undisputed that N.D.G. primarily resides with her grandmother, while J.J.G. resides with J.R.
In 1991, J.G. was given visitation rights with her children. This visit lasted for approximately eight days, three of which were spent by the children with a neighbor. The children reported that J.G. had locked them out of her house; they were hungry and unfed. The evidence indicates that J.G. did not check on the welfare of her children during their three days with the neighbor.
J.G. has had the children in her care for three months in 1988, eight days in 1991, and intermittently at other times, never for longer than two days. At the time of trial, May 1993, J.G. had not visited her children since before Easter 1992.
J.G., at this time, advises through her attorney that she was satisfied with the situation prior to her parental rights being terminated. She does not want custody of her children and is agreeable to N.D.G. continuing to live with D.G. and J.J.G. continuing to live with J.R. She is agreeable to J.R. being the principal custodial parent and does not desire to change that status. It is apparent that J.G. does not want her parental rights severed, while at the same time, she shows no real desire to raise and care for her two children.
After the unsettling visit in 1991, the two children were admitted to Parkview Hospital of Topeka (Parkview) for an evaluation. The results of that evaluation are not favorable to J.G.
Dr. Jeff Lane, a forensic psychologist, testified at the hearing pursuant to court order. He described J.G. as hostile, resentful, emotionally unstable, egocentric, and impulsive with a “low tolerance for frustration.” He further testified that J.G. is “immature, . . . self-indulgent, insensitive to others and suspicious.” He initially recommended that the parental rights of J.G. be altered but not severed. He later revised his opinion and testified that severance was perhaps the only possible avenue in the best interests of the children.
CASA was involved in this parental severance action and filed its report, recommending severance of the parental rights of J.G.
At the time of trial, both children were apparently living normal, happy lives. J.J.G. was doing well in school, attending church and Sunday school, and participating in a scouting group. N.D.G. was active and doing well in school.
STANDARD OF REVIEW
The standard of review in a case of this nature is whether there is substantial competent evidence in the record to support the trial court’s decision that the parent was unfit and that the parental rights should be terminated. In re S.M.Q., 247 Kan. 231, Syl. ¶ 1, 796 P.2d 543 (1990). “An appellate court must not reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. It must review the evidence in the light most favorable to the party prevailing below.” 247 Kan. at 234.
The parent must be found “unfit” by the trial court before parental rights may be severed. K.S.A. 38-1583; In re M.M., 19 Kan. App. 2d 600, Syl. ¶ 2, 873 P.2d 1371 (1994). Proof of unfitness must be by dear and convincing evidence. 19 Kan. App. 2d 600, Syl. ¶ 3. “The term ‘unfit’ is defined to include inherent mental and emotional incapacity to perform parental obligations which can constitute such breach of parental duty as to make the parents unfit to be entrusted with custody of their child.” In re M.D.S., 16 Kan. App. 2d 505, Syl. ¶ 1, 825 P.2d 1155 (1992).
“The difficult question of termination turns on two questions: (1) determining whether the child can be returned to the parent within a reasonable time, and (2) determining whether the termination of parental rights is in the child’s best interests.” In re S.M.Q., 247 Kan. at 232. The physical, mental, or emotional condition and needs of the children are the primary considerations in cases of this nature. K.S.A. 38-1583(e).
PROCEDURAL PROBLEMS
The facts make this action somewhat unique as a “child in need of care” case. In this case, one parent, albeit an adoptive parent, seeks to sever the parental rights of the other parent, the natural mother. Even more unique is the fact that the adoptive father of these children is the uncle of the natural mother. The parents of these children obviously are not married to one another and never have been. The other petitioner involved in this action is the maternal grandmother, who seeks to sever the parental ties of her daughter.
J.G. argues that one parent may not proceed against the other under the child in need of care statutes. She suggests that these statutes provide an inappropriate forum for what is essentially a custody battle between two parents. We disagree.
First of all, the instant matter is far more than a custody battle between two parents. The petitioners have indicated that they believe the best interests of the children rest in the severance of the parental rights of the mother of these children. They are not seeking to deny her custody or to regulate her visitation; they are seeking to sever her parental rights. This is considerably more serious than a custody dispute.
Under the facts shown, no other forum or procedure was available to the parties. In the usual battle between two parents, the obvious forum for a custody dispute is the underlying divorce or separate maintenance action. There was no underlying divorce or separate maintenance action available to these parties. In this case, the parents are not married and never have been but are related as uncle and niece.
J.R. adopted these children. J.G. suggests that the adoption action provides a forum for the custody dispute. The adoption action, however, is long closed, and we know of no method to reopen it to litigate the question of the fitness of the natural mother. We do not suggest that, in appropriate cases, an adoption court could not sever parental rights. Such a remedy is avafiable in adoption cases under our code under certain proven facts. Under the facts with which we deal, however, there is no method to reopen this matter under the adoption statutes.
J.G. argues that since her children were adopted by J.R., severance of her parental rights is controlled by K.S.A. 59-2102, which allowed termination of parental rights of a parent who has failed to assume the duties of a parent for two consecutive years. That statute was repealed in 1990 and is no longer applicable to cases of this nature. J.G.’s argument has no merit.
K.S.A. 38-1529(b) provides: “Any individual may file a petition alleging a child is a child in need of care and the individual may be represented by the individual’s own attorney in the presentation of the case.” (Emphasis added.)
K.S.A. 38-1581 specifically permits “any interested party” to request the termination of the parental rights of either or both parents “[ejither in the petition filed under [the KCCC] or in a motion made in proceedings under this code.”
“ ‘Interested party’ means the state, the petitioner, the child, any parent and any person found to be an interested party pursuant to K.S.A. 38-1541 and amendments thereto.” (Emphasis added). K.S.A. 38-1502(e). J.R. is the adoptive parent of both N.D.G. and J.J.G.; D.G. is their grandmother and is the principal physical custodian of N.D.G. J.R. and D.G. are both interested parties and proper persons to petition the court to find the chil dren to be in need of care and to request that J.G.’s parental rights be terminated under the KCCC.
We hold that one parent may proceed against the other under the child in need of care statutes. It is apparent that the legislature has placed no limitation on who may be a petitioner in such an action as this as long as the petitioner is an “interested party.” The petitioners in the instant matter are certainly interested parties and have a statutory right to bring the underlying action.
While we do not recommend the use of the KCCC to litigate custody disputes between two persons involved in a divorce action, we find no difficulty with the use of that forum under the facts shown. We hold that the forum provided by the KCCC was appropriate under the facts of this case and affirm the trial court’s decision to proceed under those statutes.
WERE THE CHILDREN IN NEED OF CARE?
J.G. next argues that the facts do not warrant a finding that the children were “children in need of care.”
In the purest sense of the term, these children were not “in need of care.” They were both in stable, loving homes. Neither was being abused, mistreated, or going without the necessities of life when this action was filed. However, as the evidence developed, it became obvious that as to their mother, these children were, indeed, “in need of care.”
The question is not purely Whether the children are in need of care in the abstract use of that term. In this action, the focus is on how the children have been and will be cared for by J.G. If the evidence indicates that the children have been and will be in need of care if the relationship with their mother continues, they may be said to be children in need of care as that term is used in the KCCC.
In In re D.V., 17 Kan. App. 2d 788, 793, 844 P.2d 752, rev. denied 252 Kan. 1092 (1993), we held that the statutory factors of K.S.A. 38-1583(b) and (c), except for (b)(6), account only for the conduct of the parent whose parental rights are at issue. The termination of the parent’s rights or the finding that a child is a “child in need of care” depends upon the conduct of the parents whose rights are in issue and not upon the conduct of the custodial parent or other person. The trial court in this case concluded that “[N.D.G.] and [J.J.G.], children less than 18 years of age, are children in need of care as the concept relates to their mother [J.G.].” That finding is consistent with our decision in In re D.V. and was clearly within the province of the trial court. See In re T.D.W., 18 Kan. App. 2d 286, 288-89, 850 P.2d 947 (1993). We affirm the holding of the trial court that these children were, indeed, “children in need of care.”
THE PARKVIEW HOSPITAL RECORDS
In 1991, N.D.G. and J.J.G. were admitted to Parkview.Hospital of Topeka for evaluation. Parkview is essentially a psychiatric hospital, and the reason for the admission was the mental and emotional state of the children. The ultimate conclusion reached during their hospitalization was that both children were suffering from major depression. The recommendation of the “Parkview staff” supported termination of the parental rights of J.G.
The Parkview records were admitted by the trial court under the business records exception to the hearsay rule, K.S.A. 1993 Supp. 60-460(m). J.G. argues that the trial court erred in admitting the Parkview records because the records contained “hearsay within hearsay” and because J.G. had no opportunity to cross-examine those whose opinions were expressed within the records.
There is no merit to the double hearsay objection. In re Estate of Bernatzki, 204 Kan. 131, Syl. ¶ 4, 460 P.2d 527 (1969), held that hospital records were admissible pursuant to K.S.A. 1993 Supp. 60-460(m). The limitation for hearsay statements within this exception prevents hearsay within hearsay from being admitted. K.S.A. 60-463; State v. Davis, 2 Kan. App. 2d 698, Syl. ¶ 1, 587 P.2d 3 (1978), rev. denied 225 Kan. 846 (1979). Hearsay statements included in a hospital record must fall within some other exception to be admissible. See 2 Kan. App. 2d at 699.
J.G. fails to point out any portion of the hospital record relied upon by the district court that violates the double hearsay rule. She conveniently ignores the provisions of K.S.A. 1993 Supp. 60- 460(1), which is the hearsay exception for the statements of physical or mental condition of the declarant. Certainly, any statements made by the children to hospital personnel were for the purpose of treatment and fall within that hearsay exception. Also, any information conveyed by J.R., D.G., or L.F. falls within K.S.A. 1993 Supp. 60-460(a), as all were present, testified, and were subject to cross-examination at trial. We find no violation of the double hearsay rule within the Parkview records.
However, we conclude that K.S.A. 38-1583(e) does prohibit the admission of portions of the Parkview records and that the trial court erred in admitting all the records under K.S.A. 1993 Supp. 60-460(m). We also conclude that this error by the trial court was harmless error and does not require a reversal of the decision.
K.S.A. 38-1583(e) interjects an entirely new concept into the admission of hospital records under cases governed by the KCCC. That statute reads in part as follows:
“If presented to the court and subject to the provisions of K.S.A. 60-419, and amendments thereto, the court shall consider as evidence testimony from a person licensed to practice medicine and surgery, a licensed psychologist or a licensed social worker expressing an opinion relating to the physical, mental or emotional condition and needs of the child. The court shall consider amj such testimony only if the licensed professional providing such testimony is subject to cross-examination.” (Emphasis added.)
The statute quoted above, in our opinion, limits the admission of expert testimony, as defined, in cases under the KCCC, to testimony which is subject to cross-examination. An opinion contained in hospital or medical records is inadmissible in cases under the KCCC unless the individual expressing such opinion is available in court for cross-examination. This statute renders inadmissible evidence which has traditionally been admitted under the business records exception set forth in K.S.A. 1993 Supp. 60-460(m). However, we hasten to add that this evidentiary rule applies only in cases controlled by the KCCC. We believe the enactment of K.S.A. 38-1583(e) indicates a decision by the legislature to require that expert opinions rendered in cases under the KCCC be admissible only when the individual declaring that opinion is available for cross-examination. In the ordinary case where the hospital records are admitted under K.S.A. 1993 Supp. 60-460(m), the hospital personnel whose opinions are expressed within the hospital records are not required to be made available for cross-examination.
The provisions of K.S.A. 38-1583(e) appear to render inadmissible evidence otherwise admissible under K.S.A. 1993 Supp. 60-460(m). The question is which statute controls. As a general rule, a specific statute controls over a general statute. Baumann v. Excel Industries, Inc., 17 Kan. App. 2d 807, 812, 845 P.2d 65, rev. denied 252 Kan. 1091 (1993). In this context, 38-1583(e) is specific as to cases under the KCCC and is controlling in that context. It would have no application to actions not governed by that code.
We have examined rather carefully the Parkview records, and we find that there are portions of those records which contain expert medical opinions relating to the physical, mental, or emotional condition and needs of N.D.G. and J.J.G. The individuals who formed these opinions were not available for cross-examination. This opinion evidence should not have been admitted under K.S.A. 38-1583(e). We do not believe there is any useful distinction between the use of the term “evidence” and the use of the term “testimony.” Whether the opinion sought to be admitted is oral testimony or a written opinion, it has the same effect. It is not logical to reason that an opinion is inadmissible as testimony unless subject to cross-examination but becomes admissible without cross-examination when it is in writing and part of a hospital record. In our opinion, the statute is designed to render inadmissible expert opinion on the mental or emotional state of children under the KCCC which is not subject to cross-examination. In our judgment, the statute applies whether that opinion is oral or written.
Certainly, those portions of the Parkview records under the sections headed “Discharge Diagnosis” and “Recommendation and Arrangements” contained inadmissible hearsay under 38-1583(e). These sections of the records contain expert medical opinion relating to the children’s physical, mental, or emotional needs, and the individuals expressing those opinions were not made available for cross-examination. That evidence should not have been admitted.
We have excised the offending materials from the evidence and from the findings of the trial court. We conclude that even without this evidence, the balance of the properly admitted evidence overwhelmingly supports the trial court’s findings of fact and its decision to sever J.G.’s parental rights.
Our rendition of the facts set out earlier in this opinion is more detailed than is common in an action of this nature. We did so to demonstrate that the record contains considerable evidence of parental neglect, parental abuse, parental drug abuse, and a total failure by J.G. to conform her conduct to the best interests of the children. Further, there is substantial competent evidence on which to base a conclusion that J.G.’s conduct is unlikely to change in the future. The opinions expressed in the Parkview records are not required to support the decision to sever parental rights, and the admission of portions of that record was harmless error at best. See, e.g., Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, Syl. ¶ 3, 836 P.2d 1102 (1992).
The trial court in this case wrote a lengthy memorandum opinion and made 37 findings of fact and 14 conclusions of law. We have examined those and compared them with the record, and we hold that all the trial court’s findings of fact, with the exception of No. 13, are supported by substantial competent evidence. The only finding that appears to be based, at least in part, on the Parkview reports is finding No. 13. The 36 remaining findings of fact are sufficient in and of themselves to affirm the decision of the trial court. We also conclude that the trial court’s conclusions of law are supported by its findings of fact.
We realize that our interpretation of K.S.A. 38-1583(e) will complicate cases tried under the KCCC. Every hospital record admitted will have to undergo careful examination to excise any expert opinion testimony that will not be subject to cross-examination prior to the admission of the record. The legislature has determined that the rights of parents to their children cannot be severed based upon expert medical or social worker opinions expressed on paper by absent witnesses. The simple way to live with this new rule is to present such opinion testimony live from the witness stand or, at the very least, have the opinion givers available in the courtroom for cross-examination. In our judgment, the provisions of K.S.A. 38-1583(e) apply only to cases under the KCCC, and we limit our opinion to that application.
In this case, evidence was erroneously admitted. The error, however, was harmless and does not require reversal of the trial court’s decision.
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|
Miller, C.J.
Retired: Truck Insurance Exchange (Truck) appeals from the decision of the Workers Compensation Board (Board) holding that Truck is liable for Vickie Ruth Helms’ compensation for her work-related injury. There is no dispute that Helms sustained a work-related injury, nor is there any dispute as to the amount of compensation awarded. The sole dispute here is between the insurance carriers, Truck and Insurance Company of North America (ICNA), as to which one is liable. The Administrative Law Judge (ALJ) held ICNA liable. The Board reversed that portion of the ALJ’s decision and held Truck liable. This appeal followed. Helms did not appear at oral argument, nor was a brief filed in her behalf.
The background facts are as follows: Helms, while employed at Tollie Freightways, Inc., (Tollie) severely injured her wrist in a work-related accident in February 1988. Approximately three years later, she still had not returned to work due to the injury, and she continued to receive daily physical therapy on her wrist. She was involved in a car accident and injured her back in January 1991 while she was on her way home from a daily therapy session. That injury was held to be work-related.
Truck was the insurance carrier for Tollie in 1988, at the time of the wrist accident. Helms’ claim for that injury has now been settled. Tollie changed insurance carriers in April 1990, and ICNA was its insurance carrier at the time of the back injury in 1991. We are concerned here only with the back injury. Each of the insurance carriers claim that the other was on the risk and is, therefore, liable to pay compensation to Helms for the back in-jUI7-
Truck raises two issues. It argues: (1) The Board does not have jurisdiction to determine which of two insurance carriers had coverage for the 1991 accident; and (2) there was insufficient evidence to support the Board’s finding that the 1991 accident was a direct, proximate consequence of the 1988 accident.
This court’s review of an action of the Board is limited to questions of law. K.S.A. 44-556(a). When determining a question of law, an appellate court is not bound by the decision of the court below. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
The procedural avenues for review of workers compensation awards were changed in 1993. The initial hearing is and continues to be before an ALJ, who enters or denies an award. Under the pre-1993 law, any party could then file an application for review by the Director, but such a review was not a prerequisite to judicial review. K.S.A. 1992 Supp. 44-551(b). Also, any party could request a review by the district court on questions of both law and fact. K.S.A. 1992 Supp. 44-556(a).
Since the legislative changes enacted in 1993, the ALJ’s decision is, upon request, subject to review by the Board, and review by the Board is a prerequisite to judicial review. K.S.A. 44-551(b)(1). The Board may review questions of both law and fact, K.S.A. 44-555b(a), and its decisions are appealable directly to the Court of Appeals, which is limited to reviewing questions of law. K.S.A. 44-556(a).
K.S.A. 44-551(b)(l) provides in pertinent part:
“All acts, findings, awards, decisions, rulings or modifications of findings or awards made by an administrative law judge shall be subject to review by the board upon written request of any interested party .... Review by the board shall be a prerequisite to judicial review as provided for in K.S.A. 44-556 and amendments thereto. On any such review, the board shall have authority to grant or refuse compensation, or to increase or diminish any award for compensation or to remand any matter to the administrative law judge for further proceedings.” (Emphasis added.)
K.S.A. 44-555b(a) provides:
“The board shall have exclusive jurisdiction to review all decisions, findings, orders and awards of compensation of administrative law judges under the workers compensation act. The review by the board shall be upon questions of law and fact as presented and shown by a transcript of the evidence and the proceedings as presented, had and introduced before the administrative law judge.” (Emphasis added.)
K.S.A. 44-556 provides for judicial review of actions of the board:
“(a) Any action of the board pursuant to the workers compensation act, other than the disposition of appeals of preliminary orders or awards under K.S.A. 44-534a and amendments thereto, shall be subject to review in accordance with the act for judicial review and civil enforcement of agency actions by appeal direcdy to the court of appeals. Any party may appeal from a final order of the board by filing an appeal with the court of appeals within 30 days of the date of the final order. Such review shall be upon questions of law.”
K.S.A. 1992 Supp. 44-551(b)(l), in effect prior to the 1993 amendments, read:
“All acts, findings, awards, decisions, rulings or modifications of findings or awards made by an administrative law judge, shall be subject to review and approval by the director upon written request of any interested party within 10 days and if no such request is made, then the director shall approve such actions, findings, awards, decisions, or modifications of findings or awards of the administrative law judge. The filing of such a request for review shall not be a prerequisite to judicial review as provided for in K.S.A. 44-556 and amendments thereto.”
K.S.A. 1992 Supp. 44-556 provided the avenue for judicial review. It read:
“(a) Any action of the director pursuant to the workers compensation act shall be subject to review in accordance with the act for judicial review and civil enforcement of agency actions. Such review shall be upon questions of law and fact as presented and shown by a transcript of the evidence and proceedings as presented, had and introduced before the director. The venue of the action shall be the county where the action arose . . . .”
The Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., sets forth the procedural rules for appeals to the courts from the action of state agencies. With reference to workers compensation actions, the Act provides:
“Judicial review of disputed issues of fact shall be confined to the agency record for judicial review as supplemented by additional evidence taken pursuant to this act, except that review of:
(a) Orders of the director of workers’ compensation under the workmen’s compensation act shall be in accordance with K.S.A. 44-556 and amendments thereto.” K.S.A. 1994 Supp. 77-618.
Finally, K.S.A. 77-623 provides: “Decisions on petitions for judicial review of agency action are reviewable by the appellate courts as in other civil cases.”
K.S.A. 44-532 requires employers who are under the Workers Compensation Act to have either insurance, a self insured plan, or be covered by a group-funded workers compensation pool. Insurance carriers are mentioned throughout the Workers Com pensation Act. See K.S.A. 44-512a(a), K.S.A. 44-528(a), K.S.A. 44-532, K.S.A. 44-534, and K.S.A. 44-534a. Several sections of the Act deal specifically with insurance carriers. See K.S.A. 44-559, K.S.A. 44-559a, K.S.A. 44-561, K.S.A. 44-562, and K.S.A. 44-563. Insurance carriers may initiate the hearing process. K.S.A. 44-534. When an insurance carrier is present, it, like the employer and the claimant, is a party to the action and may appeal, as Truck has done in the case before us.
An award by an ALJ must be in writing, K.S.A. 44-525, and must determine not only whether compensation is or is not due and the amount thereof, but must name the parties — the claimant, the employer, and the insurance carrier, if any. Thus, the ALJ must decide whether there is an insurance carrier and, in the case of multiple insurers, which is on the risk. One of the pretrial questions to be answered in every workers compensation case is: “Did the respondent have an insurance carrier on the date of the alleged accident? What is the name of the insurance company?” K.A.R. 51-3-8. If the matter is not agreed upon, it then becomes an issue for determination by the ALJ.
When review of the ALJ’s award is before the Board, does the Board have authority to make changes in the ALJ’s findings as to the name of the insurance carrier? We think it does. Truck would have us construe K.S.A. 44-551(b)(l) strictly and limit the Board to “grant or refuse compensation, or to increase or diminish any award for compensation or to remand any matter to the administrative law judge for further proceedings.”
Under our former law, the Director had broad discretion to review the awards of administrative law judges. The statute provided: “All acts, findings, awards, decisions, rulings or modifications of findings or awards made by an administrative law judge, shall be subject to review and approval by the director.”
Our present statutes, K.S.A. 44-551(b)(l) and 44-555b(a), combine the language that previously governed the scope of the Director’s review and the scope of the district court’s review. K.S.A. 44-555b(a) authorizes the Board “to review all decisions, findings, orders and awards of compensation of administrative law judges.” That review is upon “questions of law and fact.” It is only after review by the Board that recourse may be taken to the courts. K.S.A. 44-551(b)(l). We have not been cited, nor have we found, any case law examining or setting forth the authority of the Director under our prior statutes. Review and approval by the Director and review by the district court have both been deleted from the Act. We conclude that it was the intent of the legislature that the Director, under prior statutes, and now the Board, under our current statutes, have the authority to review and to substitute his, her, or its judgment for the decisions of the administrative law judges. The Board has, and should have, the authority to correct any errors it may find in the decision of the administrative law judges.
Truck relies on a line of cases, all under the former statutes, holding that the workers compensation division will not determine relative liabilities between insurance carriers. The most recent of these is American States Ins. Co. v. Hanover Ins. Co., 14 Kan. App. 2d 492, 794 P.2d 662 (1990). The court there reviewed many of the older cases and repeatedly stated the general rule that “[ujnless specifically allowed by statute, insurance companies may not litigate in the workers compensation division their respective liability for an award if the employee’s interests are not at issue.” 14 Kan. App. 2d at 498.
The first case discussed in American States is Attebery v. Griffin Construction Co., 181 Kan. 450, 460, 312 P.2d 598 (1957), where the court stated the rule that an insurance carrier may not draw in another respondent (employer) and its insurance carrier and litigate rights not relative to the obligation of the appellant insurance carrier on its own policy to its insured (an employer) or the claimant, but its rights against the other insurance carrier. Rather, the appropriate procedure was said to be an individual civil action for indemnity and subrogation between the insurance companies. In Attebery, however, the second employer and its insurance carrier had been dismissed from the case and were not before the workers compensation examiner or the court.
Next, the court in American States discussed Atwell v. Maxwell Bridge Co., 196 Kan. 219, 409 P.2d 994 (1966), where the court held that since the Act expressly allows a general contractor to implead a subcontractor, those employers' insurance carriers may litigate their respective liabilities in the workers compensation division without violating the Attebery rule.
Another case discussed in American States is Hobelman v. Krebs Construction Co., 188 Kan. 825, 366 P.2d 270 (1961). There, the court held that where a loaned employee is injured and both employers retain control of the employee, the employers are jointly and severally liable for the workers compensation award. The degrees of liability between the employers, however, will not be decided in the workers compensation case. 188 Kan. at 830-31.
The last case discussed in American States was Clouston v. Board of Johnson County Comm’rs, 11 Kan. App. 2d 112, 715 P.2d 29 (1986), where the court initially determined whether either of two named employer respondents was an actual employer. This court in American States reasoned that this did not violate the general rule against insurance companies litigating their respective liability in the workers compensation division because in Clouston, both employers disclaimed liability and it was “theoretically conceivable that both could be correct and claimant’s award would have to be reversed.” 14 Kan. App. 2d at 499.
Finally, in American States, this court held that where one of two possible employers admits that it is the employer, the workers compensation division did not have jurisdiction to determine the relative liabilities between the insurance carriers of the two employers; the proper procedure was an independent action between the two carriers. 14 Kan. App. 2d at 500.
Three other cases should be mentioned: Kuhn v. Grant County, 201 Kan. 163, 439 P.2d 155 (1968); Justice v. Continental Can Co., 174 Kan. 539, 257 P.2d 564 (1953); and Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P.2d 456 (1940).
In Kuhn, claimant twice injured his back while working for the same employer, but, before the second injuiy occurred, the employer had changed to a different insurance carrier. The separate claims were consolidated. The examiner determined that both carriers were equally liable. Upon review, the Director found only one carrier liable for both injuries, and the district court re manded the proceedings for further findings as to each carrier s liability. The Supreme Court held that the district court had no authority to remand. Addressing the issue of the allocation of liability, the court discussed Attebery and Hobelman and then fashioned a remedy: Both carriers should be held jointly and severally liable, leaving them to litigate their disputes with each other in an independent action. 201 Kan. at 168-72. The court reached this decision based upon the district court’s finding that the claimant’s disability resulted from the combined effects of the two injuries. 201 Kan. at 170. This solution is not helpful here because the Board found that Helms’ wrist injury did not contribute to the disability resulting from her back injury.
In Justice, claimant injured his right eye while his employer was insured by one insurance carrier and then injured his left eye while the employer was insured by another. Two separate claims were filed. Separate awards were made. Separate appeals were filed, but the appeal on the claim for injury to the right eye was later settled and dismissed. Thus, the case before the Supreme Court was for injury to the left eye against the insurance carrier that provided insurance coverage when that accident occurred. The appellant insurance carrier urged the court to fix the liabilities of the two insurance companies. The court refused the request for the reason that the other insurance carrier was not a party to the left eye injury case and was not before the court. Here, both carriers are present and are represented by counsel.
Matlock was decided before Attebery. The issue in Matlock was whether an insurance carrier may maintain an individual civil action to determine its liability on a workers compensation policy that it claimed was fraudulently procured, before the carrier had exhausted all remedies provided in the Workers Compensation Act. The court held that if an insurance carrier may be made a party to the original application for compensation, then all issues pertaining to its liability for compensation are within the jurisdiction of the workers compensation commissioner to hear and determine. The court held that the commissioner erred in ruling that he could not pass on each and every issue of the case pertaining to liability. Finally, the court stated that insurance carriers may not maintain an independent action until all remedies found in the Act have been exhausted.
We hold that under the circumstances of this case, the ALJ had jurisdiction to determine which of the two insurance carriers before him had coverage of the 1991 accident and that the Board had jurisdiction to review the award of the ALJ and to correct any errors it found therein.
Truck’s second argument is that the Board erred in determining that Helms’ back injury was a direct consequence of her wrist injury. It contends that the back injury is a separate and distinct second injury. ICNA disagrees, arguing that the back injury can be traced to the primary (wrist) injury and that the wrist injury was the original injury which set the causation ball rolling.
Both the ALJ and the Board relied upon Taylor v. Centex Construction Co., 191 Kan. 130, 379 P.2d 217 (1963), in finding that Helms’ back injury is compensable. Taylor holds: “Under the workmen’s compensation act securing medical treatment was in the [course] of claimant’s employment with respondent and the trip to and from the doctor’s office arose out of the nature, conditions, obligations or incidents of his employment.” 191 Kan. 130, Syl. ¶ 1. Neither carrier disputes that Helms’ back injury is compensable under Taylor.
The ALJ, in finding that the back injury was a new injury, proceeded under the theory of Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, 505 P.2d 697 (1973). Stockman holds that any natural consequence flowing from a compensable injury is also compensable. However, the court said:
“The rule ... is limited to the results of one accidental injury. The rule was not intended to apply to a new and separate accidental injury such as occurred in the instant case. The rule . . . would apply to a situation where a claimant’s disability gradually increased from a primary accidental injury, but not when the increased disability resulted from a new and separate accident.” 211 Kan. at 263.
The Board reversed that finding and found that Helms’ back injury is “directly related and arises from [her] wrist injury.” The Board relied on Roberts v. Krupka, 246 Kan. 433, 790 P.2d 422 (1990), where the court held that any additional injury arising from medical malpractice in the treatment of a compensable in jury is a consequence of the primary injury and compensable under the Act. The Board noted that in Roberts, the court said: “The on-the-job injury was the cause of plaintiff being exposed to the risk of malpractice.” 246 Kan. at 441. Relying on this statement, the Board reasoned that it was Helms’ on-the-job wrist injury that caused her to be exposed to the risk of a car accident. The Board, therefore, equates the risk of malpractice in treating the original injury with the risk of a vehicular accident when traveling to or from the physician’s office. We hold that this stretches the Roberts doctrine too far.
Kansas cases have frequently cited and relied on Larson’s treatise on workers compensation iaw. Larson notes that several other jurisdictions have faced situations similar to the one at hand and that there are three possible solutions to the problem: (1) Hold the first insurer liable for any subsequent reinjury; (2) apportion liability between the carriers; and (3) the solution that in most instances will provide the highest level of benefits for the claimant, assign liability to the carrier on the risk at the time of the causation of the last injury, i.e., “the carrier at the time of the ‘last injurious exposure.’ ” 4 Larson’s Workmen’s Compensation Law § 95.12, pp. 17-117-21 (1994).
Larson goes on to state: “The ‘last injurious exposure’ rule in successive-injury cases places full liability upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability.” 4 Larson’s § 95.20, p. 17-121. “When an employee sustains a subsequent industrial injury which is found to be a ‘new’ injury, the insurer at risk at the time of the second injury is liable for all of claimant’s benefits.” 4 Larson’s § 95.21, p. 17-126.
In its order, the Board found:
“The evidence presented fails to establish that claimant’s previous injury caused her to lose access to the open labor market or affected her ability to earn comparable wages. Claimant testified that her hand surgeon, Dr. Harris, had advised her that she could return to over-the-road driving if she had not injured her back. Further there is no credit [sic] as the evidence fails to establish a contribution between the wrist injury and back injuries, and there are no weeks of overlapping permanent partial disability benefits.
“The Appeals Board finds that claimant’s preexisting wrist injury had no bearing on the injury claimant received to her neck and low back in the vehicle accident of January 25, 1991. Further, the evidence fails to establish that claimant’s resulting disability was in any way contributed to by preexisting impairment.”
Thus, the Board’s finding is that Helms’ back injury bears the total causal relationship to her present disability. The back injury was a new and wholly unrelated injury. Applying the “last injurious exposure” rule and Stockman to this finding, ICNA was the carrier at risk when Helms injured her back and, therefore, is the carrier liable for her compensation.
The Board also found that to hold ICNA liable would result in holding a carrier liable for payment of benefits to a worker for which it has not received premiums. We find nothing in the record to indicate whether Tollie was paying premiums on Helms at the time of her back injury.
The judgment is reversed. | [
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Briscoe, C.J.:
Thomas DeCoursey and Pieter Brower (appellants), plaintiffs original attorneys, appeal the order of the district court denying their application for an apportionment of attorney fees between themselves and J.R. Russell and John Fields (appellees), plaintiff’s subsequent attorneys, who obtained a settlement of plaintiff’s claim.
The sole issue presented is whether attorneys who withdraw from a case for good cause are entitled to a portion of the fees from a settlement obtained by successor attorneys upon a showing by the withdrawing attorneys that they provided legal services to the plaintiff that contributed to the settlement obtained. We reverse the district court’s ruling that withdrawal for good cause would not entitle appellants to share in the attorney fees obtained from the settlement, and remand for a factual determination of whether appellants withdrew for good cause and, if so, what portion of the $16,000 attorney fee amount should be paid to appellants.
Appellants were the original attorneys representing plaintiff Willa Tucker in her medical malpractice action. They entered into a contingent fee contract under which they were to receive one-third of any recovery and 40 percent if the case was settled within 30 days of trial. The action was filed in January 1991 and was first set for trial in November 1992. During this period, appellants performed substantial legal work for their client. They found experts, conducted discovery, opposed motions for summary judgment, and prepared for trial.
Appellants had not received any significant settlement offers from the defendants, due in part to the fact that Tucker was a difficult client. She had unrealistically high expectations about the amount she could recover, refusing to entertain any realistic settlement even after the trial judge explained to her the statutory limits on recovery in malpractice actions. She demanded that appellants offer the trial judge a bribe or she would get a different attorney, and she accused appellants of being in conspiracy with the trial court and defense counsel. As a result of Tucker’s conduct, DeCoursey sent a letter to Tucker on October 14, 1992, stating:
“If you think a conspiracy exists between all of the parties then I strongly urge you to hire additional attorneys to represent you. Mr. Brower and I will withdraw from the case as soon as we can. I do not want to represent you if you believe what you are saying. If you are playing some kind of mental game with me then this game must end now. I do not find it amusing. I find it insulting and destructive.
Please let me know immediately if you want to have new attorneys to represent you in this matter.”
Tucker did not answer, and on October 21, 1992, appellants moved to withdraw as attorneys of record, citing permanent and irreconcilable differences that caused “destruction of the lawyer/ client relationship.” The trial judge expressed displeasure that DeCoursey moved to withdraw so close to the scheduled trial date but signed an order permitting immediate withdrawal after the circumstances were explained.
Tucker then retained appellees to represent her. They entered into a contingent fee contract under which appellees would re ceive one-third of any recovery. There was no agreement to split the fees with appellants and several months after withdrawing, appellants filed an attorneys’ lien, claiming expenses of $6,971.34 and attorney fees of $45,000. Appellees had advised appellants to file the lien to insure that Tucker would pay their out-of pocket expenses, but they did not expect an additional lien for $45,000 in attorney fees.
Appellees negotiated a settlement of $55,000 on the morning of the scheduled trial. Tucker received $32,000, leaving the attorneys $23,000. Appellants applied for approval of their expenses and a division of the attorney fees. Appellees did not dispute appellants’ entitlement to expenses and offered an additional $2,000 for their time, although appellees did not concede appellants were entitled to any payment for their services. Appellants claimed they were entitled to expenses and one-half of die $16,000 attorney fee portion of the settlement.
At the evidentiary hearing, local personal injury lawyers gave conflicting testimony on whether it was the local custom and practice to split fees in similar situations. The trial court ruled that appellants were entitled to $6,971.34 in expenses but denied their application for a division of fees. Because Tucker had not testified, the court would not make findings of fact on the circumstances of the withdrawal.
The trial court did not make findings of fact but decided the fee issue as a matter of law. The court held that even if the appellants’ factual claims concerning the reasons for their withdrawal were true they were not entitled to a portion of the fees. Accordingly, as the issue presented is an issue of law, this court is not bound by the trial court’s decision but is free to look at the issue anew. See Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
Much of appellees’ argument is based on the incorrect assumption that the trial court made a finding of fact that appellants had no cause to withdraw. It is clear from the record that the trial court made no finding of fact on whether there was cause for withdrawal. The court simply ruled that appellants’ account of the circumstances of the withdrawal, if true, did not entitle them to any fees. The court indicated that appellants’ account, if true, would establish cause for permissive withdrawal under ethical rules but would not establish that appellants were constructively discharged by Tucker.
In Madison v. Goodyear Tire & Rubber Co., 8 Kan. App. 2d 575, 578-80, 663 P.2d 663 (1983), this court stated that an attorney working under a contingent fee contract who is discharged before any money is recovered is entitled, under quantum meruit, to the reasonable value of the services rendered. The general rule elsewhere is that attorneys who withdraw for good cause before completion of matters for which they were retained are entitled to compensation for their services. See 1 Speiser, Attorneys’ Fees § 4:11 (1973); Annot., 88 A.L.R.3d 246 § 2; 7 Am. Jur. 2d, Attorneys at Law § 262; 7A C.J.S., Attorney and Client § 291. This rule also applies when the attorney was working under a contingent fee contract. E.g., Phelps Steel Inc. v. Von Deak, 24 Mass. App. 592, 511 N.E.2d 42 (1987); Ambrose v. Detroit Edison Co., 65 Mich. App. 484, 237 N.W.2d 520 (1975); International Materials v. Sun Corp., 824 S.W.2d 890 (Mo. 1992). The rationale for the rule is apparent as it insures an attorney will be at least partially compensated for services rendered when forced to withdraw from a pending case as a result of forces beyond the attorney’s control.
The trial court erred in ruling as a matter of law that appellants were not entitled to any fees. The trial court assumed, without finding, that appellants’ description of Tucker’s conduct was accurate. The conduct attributed to Tucker included her demand that appellants bribe the judge, her unrealistic expectations of recovery, and her resulting accusations of conspiracy against appellants. This conduct, which the court assumed to be true, would establish good cause for withdrawal. Although no appellate court in Kansas has directly addressed this question, courts in other jurisdictions have held that attorneys who have withdrawn as a result of similar client conduct are entitled to compensation for their services. E.g., Mutter v. Burgess, 87 Colo. 580, 290 Pac. 269 (1930); Fishman v. Conway, 57 So. 2d 605 (La. 1952); Phelps Steel, 24 Mass. App. 592; Matarrese v. Wilson, 202 Misc. 2d 994, 118 N.Y.S.2d 5 (1952). Therefore, if there is an evidentiary basis to conclude appellants’ withdrawal was for good cause, they are entitled to compensation for their services upon a showing that their services contributed to the settlement obtained by appellees.
This case is remanded for further proceedings to determine whether appellants did in fact have good cause to withdraw. If the trial court finds they had good cause to withdraw, they should be compensated for the reasonable value of their services. See Madison, 8 Kan. App. 2d at 578-80. Appellants sought only one-half of the $16,000 obtained under appellees’ contingent fee contract. Accordingly, if the court first determines appellants had good cause to withdraw, the court should then determine appellants’ share of the $16,000 based upon the extent to which their work contributed to the settlement obtained by appellees.
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Pierron, J.:
Mares entered a plea to one count of sale of controlled substances and one count of possession of controlled substances. Several other charges were dismissed. Mares asked the court to depart from the presumptive imprisonment sentence for sale of cocaine, a severity level 3 offense, because he provided principal support for his family, had no prior felony convictions, and the “victim” was the State. These reasons were expanded upon at sentencing. Mares had four children, an ill father, and was in alcohol treatment. The court noted its consideration of the reasons given by defendant to not incarcerate him but did not find these reasons to be substantial and compelling enough to overcome the presumption of imprisonment.
The court then sentenced Mares to 16 months’ imprisonment for sale of cocaine. He was sentenced to 10 months’ imprisonment for possession of cocaine to run consecutive to the sentence for sale of cocaine. The 10-month sentence was suspended.
Mares’ presumptive sentence for sale of cocaine was 14 to 16 months and for possession was 10 to 12 months. He was sentenced within the presumptive sentence for the crimes, pursuant to K.S.A. 1993 Supp. 21-4721(c)(2). Although a departure sentence was requested, the court refused to grant a departure.
Mares argues the trial court should have been required to make specific findings to explain its rejection of the request for downward departure. We disagree. If a court does depart, K.S.A. 1993 Supp. 21-4718(c) requires it to make specific findings of fact or law. A similar requirement is not imposed for refusal to depart. The guidelines presume a sentence based on the offense committed and the defendant’s criminal history. Appeal is available only if the presumed sentence is not entered or the sentence resulted from partiality, prejudice, oppression, or corrupt motive.
In State v. Starks, 20 Kan. App. 2d 179, 184, 885 P.2d 387 (1994), this court stated:
“[W]henever a defendant is sentenoed to a presumptive sentence and there is no claim of error in regard to crime severity level or criminal history, there is a strong legislative presumption that the sentence is not the result of partiality, prejudice, oppression, or corrupt motive. Defendant has failed to come forward with any evidence which would overcome that statutory presumption.”
Mares’ reasons here also fail to overcome the statutory presumption.
Finally, Mares argues the trial court erroneously considered his involvement in drug traffic, as evidenced by the dismissal of other charges, in denying the departure request. It may be erroneous for a trial court to consider dismissed charges in aggravating a sentence, but here the trial court merely imposed the presumptive sentence for the offense that Mares admitted committing. It found Mares’ mitigating reasons were not substantial and compelling enough to overcome the presumptive sentence set out by statute. The trial court did not err in its decision.
Affirmed. | [
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Rogg, J.:
West Bottoms Ltd., (West Bottoms), Alvin H. O’Connell, and Mary A. O’Connell appeal from the district court’s judgment awarding punitive damages and attorney fees. They also appeal from the district court’s disregard of the corporate form by imposing joint and several liability on West Bottoms and the O’Connells individually.
Subsequent to the date for argument on this matter, which both parties waived, we received notice from the appellee that appellant West Bottoms had filed a Chapter 7 petition in the United States Bankruptcy Court. We stayed further formal action on this appeal after receipt of the notice.
On December 29, 1994, we received a motion from appellants asking that our stay be lifted. On February 9, 1995, we received a motion from the appellee requesting that the stay be lifted as well. The automatic stay imposed by 11 U.S.C. § 362(a)(1) (1988) applies only to actions or proceedings commenced against the debtor. This appeal was commenced by the debtor, not against the debtor, and the automatic stay does not apply. We consulted on March 8, 1995, with Carl Clark, the trustee in bankruptcy, who has no objection to our proceeding to resolve the appeal as requested by the debtor and possible creditor. We therefore proceed to rule on this appeal.
The notice of appeal identifies three issues ruled upon in the memorandum decision and journal entry of judgment entered on March 7, 1994. These are the three issues this court will consider. Earlier judgments of the district court are not before us for consideration other than for the purpose of accepting the district court’s factual findings. See Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 869 P.2d 598 (1994).
Alvin has been the president and treasurer of West Bottoms since its incorporation in 1986. Mary, Alvin’s wife, is a director, vice-president, and secretary. The O’Connells are the only directors, shareholders, and officers of West Bottoms.
In the summer of 1991, West Bottoms entered into a commercial real estate contract with Golconda Screw, Inc., (Golconda) in which Golconda agreed to purchase a warehouse owned by West Bottoms. Alvin signed the contract on behalf of West Bottoms. The sale was to close on November 1, 1991.
The contract did not close. because certain repairs were not performed as required by the contract. Litigation conducted in Johnson County concluded in a judgment in favor of Golconda for breach of contract and attorney fees.
As of November 1, 1991, the O’Connells were personally indebted to Robert Pettit in excess of $138,000 and to Bill Renzenberger for $20,000. These debts were personal debts secured by real property owned by the O’Connells as individuals. The district court specifically found the debts to be personal debts of the O’Connells and not corporate debts of West Bottoms.
On November 4, 1991, West Bottoms held a special directors’ and stockholders’ meeting and resolved to transfer the warehouse to J.P. Enterprise, “a corporation to be formed and owned by Stockholders, all of which are promissory noteholders of West Bottoms, LTD.” Alvin was the only noteholder of West Bottoms. The incorporation fee was paid by West Bottoms.
The articles of incorporation for J.P. Enterprise designated Mathilde Pearson, an elderly neighbor of the O’Connells, as registered agent. The articles also indicated Pettit and Pearson were the stockholders and directors, and that they had waived notices of meetings as evidence by their signatures. The minutes expressing these facts were not signed by Pettit or Pearson. Pettit was in Saudi Arabia and did not know of the fonnation of the corporation or his status as an officer. Pearson was not present at the meetings either.
Alvin is also the secretary and treasurer of J.P. Enterprise, formed November 7, 1991. Incorporation documents list the office of J.P. Enterprise at Pearson’s residence. Renzenberger is the president and Pettit is the vice-president.
The warehouse that Golconda contracted to purchase was West Bottoms’ only asset, other than a cash account with a balance of approximately $300. West Bottoms’ 1991 tax return listed assets of $224.07.
Golconda brought this action in Wyandotte County seeking to set aside the transfer of the warehouse to J.P. Enterprise as a fraudulent conveyance pursuant to K.S.A. 33-102. Golconda requested punitive damages and attorney fees. Golconda also requested the district court to disregard the corporate form of West Bottoms and impose liability on the O’Connells individually.
The district court found:
“It was clear to O’Connell on the, day of scheduled closing that he was to be sued or voluntarily pay damages .....
“Since the attempted contract to sell the building was by the O’Connells in the corporate capacity, any damages arising to the plaintiffs would have to be satisfied out of corporate assets (the building.) So he did what he did to defeat their claim.”
The district court set aside the conveyance of the warehouse to J.P. Enterprise and awarded Golconda punitive damages in the amount of $10,000 and attorney fees of $10,000. It also imposed joint and several liability on West Bottoms and on the O’Connells individually.
Was the award of punitive damages in this case authorized under Kansas law?
West Bottoms argues punitive damages cannot be awarded as a matter of law. An appellate court’s review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Golconda brought this action pursuant to K.S.A. 33-102, which provides:
“Every gift, grant or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to hinder, delay or defraud creditors of their just and lawful debts or damages, or to defraud or deceive the person or persons who shall purchase such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect.”
The district court set aside the conveyance, and West Bottoms does not appeal that judgment.
West Bottoms asserts that a general trend in other states disallows the award of punitive damages in a fraudulent conveyance case.
“Although there is authority to the contrary, it has been held improper to award a money judgment against the judgment debtor where the creditor already has a judgment against him for the debt. Exemplary damages may not be granted as incidental relief in an action to set aside a fraudulent conveyance.” 37 C.J.S., Fraudulent Conveyances § 444, p. 1298 (1994 Supp.).
The authority cited for the above C.J.S. quotation is Miller v. Kaiser, 164 Colo. 206, 433 P.2d 722 (1967). This statement of law is hinged on a more general proposition, which apparently still holds true in Colorado, that the “award of exemplary or punitive damages in equity actions or as incidental to the equitable relief, is generally held to be improper.” [Emphasis added.] 164 Colo, at 215 (citing Annot., 48 A.L.R.2d 947).
The Colorado Supreme Court went on to say:
“The equitable remedy of setting aside a fraudulent conveyance on a complaint of a judgment creditor in our view is not compatible with an award of exemplary damages. Inherent in this remedy is the restoration of the ownership status in a fraudulent transferor thereby allowing a judgment creditor to reach the asset, and aid him in the collection of this judgment debt. Where the single remedy of voiding a fraudulent conveyance is sought and secured by the judgment creditor, an additional award of exemplary damages, even where the evidence goes to the extent of showing that the fraudulent transferor and transferee acted with malice, intent, and design in an effort to hinder or prevent the collection of a judgment, is inherently not includable as a part of the remedy or as incidental thereto. It is our conclusion that the trial court in an equitable action involving an alleged fraudulent conveyance, does not have the inherent power to award exemplary damages.” 164 Colo, at 215-16.
West Bottoms also cites Gilmore v. Tucker, 83 Cal. App. 3d 664, 148 Cal. Rptr. 86 (1978). This citation is improper as the opinion was withdrawn by order of the California Supreme Court. See 83 Cal. App. 3d 672 (1978).
Kansas has not decided the specific issue of whether punitive damages may be awarded in an action to set aside a fraudulent conveyance. Despite numerous cases indicating punitive damages are not available absent an award of actual damages (see, e.g., Enlow v. Sears, Roebuck & Co., 249 Kan. 732, Syl. ¶ 7, 822 P.2d 617 [1991]; McConwell v. FMG of Kansas City Inc., 18 Kan. App. 2d 839, Syl. ¶ 8, 861 P.2d 830 [1993], rev. denied 254 Kan. 1007 [1994]), punitive or exemplary damages may be awarded incidental to equitable relief. Capitol Fed’l Savings & Loan Ass’n v. Hohman, 9 Kan. App. 2d 217, 675 P.2d 384, aff'd 235 Kan. 815, 682 P.2d 1309 (1984).
Golconda cites numerous cases from other jurisdictions that hold punitive damages are available where there has been a fraudulent conveyance. Nunez v. Interstate Corporate Systems, 165 Ariz. 410, 799 P.2d 30 (1990); Lawson v. Athens Auto Supply & Electric, Inc., 200 Ga. App. 609, 409 S.E.2d 60, cert. denied 200 Ga. App. 896 (1991); Southeast Bank v. I.P. Sarullo Ent., 555 So. 2d 704, (Miss. 1989); Lewis v. Barnett, 694 S.W.2d 743 (Mo. App. 1985); and Blakeslee v. Rabinor, 182 App. Div. 2d 390, 582 N.Y.S.2d 132 (1992).
Kansas law does not require an award of actual damages before punitive damages may be awarded. Hohman, 9 Kan. App. 2d at 217. The law does require a cause of action independent of a claim for punitive damages. See Moore v. State Bank of Burden, 240 Kan. 382, 390, 729 P.2d 1205 (1986). “Punitive damages are more in the nature of an equitable action, that is, a punitive action for the purposes of punishing the wrongdoer and deterring any such future conduct.” Smith v. Printup, 254 Kan. 315, Syl. ¶ 7, 866 P.2d 985 (1993). “No separate right of action existed at common law for punitive damages.” 254 Kan. at 325.
West Bottoms argues that Golconda’s remedy under 33-102 does not support punitive damages as a remedy. “In cases where the matter is governed by statute the law is followed and equity cannot be invoked.” Norris v. Nitsch, 183 Kan. 86, 96-97, 325 P.2d 326 (1958). In Norris, the Kansas Supreme Court held that a statutory mechanic’s lien held priority over a subsequent interest in certain property. The equitable remedy at issue was a request for specific performance of a subsequent contract reducing the sales price of the subject property. 183 Kan. at 96.
West Bottoms argues that permitting punitive damages in an action pursuant to 33-102 enlarges the scope of the statute by granting damages not made available by the clear language of the statute. Golconda notes that an award of punitive damages pursuant to 42 U.S.C. § 1981 (1982) was approved in Smith v. United Technologies, 240 Kan. 562, 571-72, 731 P.2d 871 (1987).
West Bottoms’ argument that an award of punitive damages enlarges the scope of the remedy provided by 33-102 overlooks an important feature of punitive damages. Punitive damages are not compensatory and are not a remedy at common law. Smith v. Printup, 254 Kan. 325. In fact, punitive damages cannot be requested in any initial petition. K.S.A. 60-3703.
“In Kansas, punitive damages are awarded to punish the wrongdoer for his malicious, vindictive, or willful and wanton invasion of another’s rights, with the ultimate purpose being to restrain and deter others from the commission of similar wrongs.” Folks v. Kansas Power & Light Co, 243 Kan. 57, Syl. ¶ 6, 755 P.2d 1319 (1988). To recover punitive damages, a party must prove by clear and convincing evidence that the opposing party acted toward it with willful or wanton conduct, fraud, or malice. K.S.A. 60-3701(c); Grove v. Orkin Exterminating Co., Inc., 18 Kan. App. 2d 369, 372, 855 P.2d 968 (1992).
The district court found that Alvin was attempting to defraud Golconda while protecting himself from personal creditors. It further found that the O’Connells attempted to form a new corporation to keep Golconda from attaching the warehouse to satisfy the Johnson County judgment.
Punitive damages may be awarded to punish a wrongdoer for the willful invasion of another’s rights and to deter others from committing such conduct. To prevail in an action to set aside a fraudulent conveyance pursuant to 33-102, a plaintiff must prove the conveyance was made with the intent (1) to hinder, delay, or defraud creditors or (2) to defraud or deceive the grantee.
By definition, the plaintiff must prove a willful interference with the rights of the plaintiff by the defendant. Further, punitive damages may be awarded incident to equitable relief without an award of actual damages.
The district court did not err in awarding punitive damages in this case. Such damages may be awarded when appropriate to punish the willful transfer of a judgment debtor’s only asset to avoid execution and to deter others from doing so.
Was the award of attorney fees in this case authorized under Kansas law?
Again, this court is reviewing a conclusion of law. Our standard of review is unlimited. Gillespie, 250 Kan. at 129.
West Bottoms contends the award of attorney fees is not supported by contract or statute. See Iola State Bank v. Biggs, 233 Kan. 450, 459, 662 P.2d 563 (1983). “ In Kansas, attorney fees are not allowed unless authorized by statute or by agreement of the parties.’ ” Clark’s Jewelers v. Humble, 16 Kan. App. 2d 366, 372, 823 P.2d 818 (1991) (quoting Dickinson, Inc. v. Balcore Income Properties Ltd., 12 Kan. App. 2d 395, Syl. ¶ 3, 745 P.2d 1120 [1987], rev. denied 242 Kan. 902 [1988]).
Golconda asserts that attorney fees may be awarded by the district court under its equitable jurisdiction. Golconda cites Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 510, 438 P.2d 732 (1968), in support of this proposition. Barten held that attorney fees were recoverable damages in a mandamus action pursuant to K.S.A. 60-802(c). 200 Kan. at 510. Barten does not stand for the proposition that a court can exercise equitable jurisdiction to impose attorney fees.
Golconda also contends that attorney fees may be awarded as compensation for the expenditures suffered or incurred because of the defendant’s fraudulent acts. Golconda cites McOsker v. Federal Insurance Co., 115 Kan. 626, 629-30, 224 Pac. 53 (1924), for support.
McOsker does not apply to the facts in the case at bar. In McOsker, the plaintiff was awarded attorney fees incurred in a separate action which, in turn, was caused by the fraud of the defendant. The district court awarded Golconda the reasonable attorney fees incurred in prosecuting the current action, not as actual damages incurred in the defense of another action instituted against Golconda as a result of West Bottoms’ fraudulent conduct.
The district court awarded attorney fees based upon West Bottoms’ “intentional deprivation” of Golconda’s rights and as “the necessary extension of the original real estate contract which specifically provided for attorney’s fees.”
Golconda does not rely upon a specific statute authorizing the award of attorney fees.
K.S.A. 60-2001(d) provides:
“Other fees and expenses to be assessed as additional court costs shall be approved by the court, unless specifically fixed by statute. Other fees shall include, but not be limited to, witness fees, appraisers’ fees, . . . court costs from other courts and any other fees and expenses required by statute. All additional court costs shall be taxed and billed against the parties as directed by the court.”
K.S.A. 60~2002(a) provides that costs shall be taxed as a matter of course:
“Unless otherwise provided by statute, or by order of the judge, the costs shall be allowed to the party in whose favor judgment is rendered. The court shall have the discretion to order that the alternative dispute resolution fees be, in whole or in part, paid by or from any combination of any party or parties, from any fund authorized to pay such fees, or form the proceeds of any settlement or judgment.”
The Kansas Supreme Court has stated: “K.S.A. 60-2002 . . . indicate^] the intent of the legislature to award attorney fees as costs in the action.” Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 377, 789 P.2d 211 (1990).
K.S.A. 60-2001 and 60-2002 are not specific statutes authorizing an award of attorney fees. Rather, 60-2001 and 60-2002, as indicated in Snodgrass, indicate that the award of attorney fees, when otherwise authorized, are to be awarded as costs separate from the merits of the action.
The remaining question is whether the original real estate contract providing for attorney fees authorized an award of such fees in this case. An appellate court’s review, when construing a written contract on uncontested facts, is de novo. Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 660, 876 P.2d 1362 (1994).
Paragraph 16 of the real estate contract provides:
“If, as a result of a default under this Contract, either Seller or Buyer employs an attorney to enforce its rights, the defaulting party shall, unless prohibited by law, reimburse the nondefaulting party for all reasonable attorney’s fees, court costs and other legal expenses incurred by the nondefaulting party in connection with the default.” (Emphasis added.)
“Damages recoverable for breach of contract are limited to those which may fairly be considered as arising, in the usual course of things, from the breach itself, or as may reasonably be assumed to have been within the contemplation of both parties as the probable result of the breach.” Kansas State Bank v. Overseas Motosport, Inc., 222 Kan. 26, Syl. ¶ 1, 563 P.2d 414 (1977). “One who breaches a contract is hable for damages caused by the breach; he is not hable for damages flowing from other causes whether or not those other causes have connotations of culpability associated with the term ‘fault.’ ” Broce-O’Dell Concrete Products, Inc. v. Mel Jarvis Constr. Co., 6 Kan. App. 2d 757, 760, 634 P.2d 1142 (1981).
Are Golconda’s attorney fees in this action: (1) damages “arising in the usual course of things” or contemplated by the parties as the probable result of a breach as stated in Kansas State Bank, or (2) damages which arise from other causes as contemplated in Broce-O’Dell?
It cannot fairly be said that the instant action to set aside the fraudulent conveyance are “damages caused by the breach” of West Bottoms. Those damages were litigated and determined in the earlier Johnson County case. Though the attorney fees incurred in the instant action are sought to satisfy the Johnson County judgment, they were not caused by the breach. The fees for the instant action were “caused,” so to speak, by West Bottoms’ fraudulent conveyance seeking to avoid the judgment, not by the earlier breach of contract.
Attorney fees are not specifically authorized by statute in this case, nor are they supported by contract. The district court, therefore, erred in awarding Golconda attorney fees.
Was there sufficient evidence to support “piercing the corporate veil?”
West Bottoms argues there is insufficient evidence to support the district court’s disregard of the corporate entity. “Each case involving disregard of the corporate entity must rest upon it special facts.” Kvassay v. Murray, 15 Kan. App. 2d 426, 436, 808 P.2d 896, rev. denied 248 Kan. 996 (1991). When the district court makes findings of fact, appellate courts review the record to determine whether the findings are supported by substantial competent evidence. 15 Kan. App. 2d at 436.
Kvassay v. Murray sets forth the standards for disregarding the corporate form, or “piercing the corporate veil”:
“ “We start with the basic premise that a corporation and its stockholders are presumed separate and distinct, whether the corporation has many stockholders or only one. Debts of a corporation are not the individual indebtedness of its stockholders. However, in an appropriate case the corporate form will be disregarded and the corporation and its stockholders may be treated as identical. [Citations omitted.] Power to pierce the corporate veil is to be exercised reluctantly and cautiously. [Citations omitted.]’ Amoco Chemicals Corporation v. Bach, 222 Kan. 589, 593, 567 P.2d 1337 (1977).
“ ‘The doctrine of alter ego is used to impose liability on the individual who uses a corporation merely as an instrumentality to conduct his own personal business. Such liability arises from fraud or injustice perpetrated not on the corporation but on third persons dealing with the corporation. Under it the court merely disregards the corporate entity and holds the individual responsible for his acts knowingly and intentionally done in the name of the corporation. [Ci tation omitted.]’ Sampson [v. Hunt], 233 Kan. [572, 579, 665 P.2d 743 (1983)].” 15 Kan. App. 2d at 436.
“In determining whether disregarding the corporate entity is appropriate, eight factors are considered: (1) undercapitalization of a one-man corporation, (2) failure to observe corporate formalities, (3) nonpayment of dividends, (4) siphoning of corporate funds by the dominant stockholder, (5) nonfunctioning of other officers or directors, (6) absence of corporate records, (7) use of the corporation as a facade for operations of the dominant stockholder or stockholders, and (8) use of the corporate entity in promoting injustice or fraud.” 15 Kan. App. 2d 426, Syl. ¶ 7.
“While the power to pierce the corporate veil is to be exercised reluctantly and cautiously, the corporate entity can be disregarded if it is used to cover fraud or to work injustice, or if necessary to achieve equity.” 15 Kan. App. 2d 426, Syl. ¶ 8.
“A review of Kansas cases . . . clearly shows it is appropriate to pierce the veil to prevent injustice or to achieve equity and it does not matter what kind of action is involved.” 15 Kan. App. 2d at 440. “Injustice alone will support a disregard of the corporate entity. See Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 797, 473 P.2d 33 (1970).” 15 Kan. App. 2d at 439.
The findings of fact made by the district court, considered in light of the eight factors, provide an adequate basis for the disregard of West Bottoms’ corporate entity.
(1) Undercapitalization of a one-man corporation.
West Bottoms’ only substantial asset was the warehouse. The contract price for the warehouse indicates that its sale would satisfy the judgment obtained by Golconda in the earlier Johnson County case as well as the punitive damages (and attorney fees) award in the instant action.
(2) Failure to observe corporate formalities.
The record indicates that West Bottoms held annual stockholders/directors meetings and kept minutes of those meetings.
(3) Nonpayment of dividends.
West Bottoms had no profits and paid no dividends.
(4) Siphoning of corporate funds by the dominant stockholder.
West Bottoms paid $1,155 per month as interest on the debt to Pettit owed by the O’Connells personally. Further, the con veyance of the warehouse to J. P. Enterprise was an attempt to satisfy personal creditors.
(5) Nonfunctioning of other officers or directors.
There is no evidence that the O’Connells were nonfunctioning as officers and directors.
(6) Absence of corporate records.
The record shows that corporate records were kept by Alvin. (7) Use of the corporation as a facade for operations of the dominant stockholder or stockholders.
The conveyance of the warehouse to J. P. Enterprise was an attempt by the O’Connells to satisfy personal debts via the use of corporate assets.
(8) Use of the corporate entity in promoting injustice or fraud.
The district court specifically found that the conveyance of the warehouse was to satisfy personal debts and to defeat any claim Golconda would have against West Bottoms.
West Bottoms contends that neither justice nor equity requires disregard of the corporate entity in this case. This assertion is in spite of the fact that the warehouse was transferred to satisfy personal debts and avoid any potential attachment by Golconda.
The district court did not err in its disregard of the corporate entity of West Bottoms and imposing joint and several liability on all the defendants.
We affirm the award of punitive damages and the disregard of the corporate entity. We reverse the award of attorney fees.
Affirmed in part and reversed in part. | [
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Lewis, J.:
Defendant was convicted of three counts of vehicular battery. He was sentenced to jail for six months on each conviction, and the sentences were ordered to run concurrently. In addition, he was fined the sum of $1,000. The trial court then ordered that defendant be released on probation for a period of one year after serving 90 days of his jail sentence. Defendant appeals his convictions.
The charges against defendant arose from a two-vehicle automobile accident. Defendant was driving one of those vehicles. As a result of the accident, defendant, his passenger, and the two persons in the other vehicle suffered injuries and were taken to the hospital for treatment.
The physician who treated each of the accident victims in the emergency room ordered blood alcohol tests to be performed on each injured party, including defendant. The test performed on defendant’s blood sample showed an alcohol concentration of .179.
Prior to trial, defendant moved to suppress the results of the blood alcohol test. He argued that the test results were privileged. The trial court disagreed and admitted'the test results into evidence. The sole issue on appeal is whether the trial court erred in the admission of the blood alcohol test results.
“If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979).” State v. Garcia, 250 Kan. 310, 318, 827 P.2d 727 (1992). The facts, however, were stipulated to by the parties. “[I]n a case decided on stipulated facts, the appellate court has de novo review.” State v. Rowe, 18 Kan. App. 2d 572, 573, 856 P.2d 1340, rev. denied 253 Kan. 863 (1993).
“Interpretation of a statute is a question of law.” State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). “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). As will become apparent, this appeal turns on our interpretation of a statute; therefore, we are not bound by the trial court’s decision.
The issue is whether the trial court erred in admitting the blood alcohol test results. In that regard, the parties agree that the law enforcement officers involved in this action did not comply with K.S.A. 8-1001. Defendant was not arrested at the hospital and was not asked to submit to a blood alcohol test. The blood alcohol tests taken in this action were not taken at the request of the officers. It follows that the mandatory notices as required by 8-1001 were not given in this case.
The net result is that the blood alcohol test results in this case are not admissible under K.S.A. 8-1001. Defendant argues that under the circumstances shown, the blood alcohol test results come under the physician-patient privilege and were, as a result, not admissible.
This appeal is controlled by K.S.A. 60-427(b), which provides as follows:
“Except as provided by subsections (c), (d), (e) and (f), a person, whether or not a party, has a privilege in a civil action or in a prosecution for a misdemeanor, other than a prosecution for a violation of K.S.A. 8-1567 and amendments thereto or an ordinance which prohibits the acts prohibited by that statute, to refuse to disclose, and to prevent a witness from disclosing, a communication, if the person claims the privilege and the judge finds that: [the elements of the privilege exist.]” (Emphasis added.)
The essential question to be answered is whether this was a “prosecution for a violation of K.S.A. 8-1567.” If it was, there was no privilege and the trial court did not err. If it was not, then the test results were privileged and inadmissible. The trial court resolved the issue as follows:
“The complaint charges three counts of vehicular battery. The statutory definition of the offense set forth in die complaint specifically alleges a violation of K.S.A. 8-1567. Therefore, even though D.U.I. is not the specific charge, it is an element which must be proven by the State. Therefore, this case is ‘a prosecution for a violation of K.S.A. 8-1567’ as contemplated by K.S.A. 60-427.”
We conclude that the trial court was correct in its decision that the instant matter was a prosecution for a violation of K.S.A. 8-1567.
K.S.A. 1992 Supp. 21-3405b(a) [repealed L. 1993, ch. 298 § 97] defined vehicular batteiy as follows: “Vehicular battery is unintentionally causing bodily injury to another human being which is done while committing a violation of K.S.A. 8-1566, 8-1567 or 8-1568, and amendments thereto, or the ordinance of a city or resolution of a county which prohibits any of the acts prohibited by those statutes.” (Emphasis added.)
The complaint filed against defendant in the instant matter alleged that “[Defendant] did . . . cause bodily injury to another human being, to wit: . . . which is done while committing a violation of K.S.A. 8-1567.” (Emphasis added.)
An examination of the complaint filed against defendant indicates that this was a prosecution for the violation of K.S.A. 1992 Supp. 21-3405b and not a “prosecution for the violation of K.S.A. 8-1567.” This is precisely the point defendant presses. Defendant argues that the privilege does not exist in a prosecution “for violation of K.S.A. 8-1567” but that it does exist in all other misdemeanor prosecutions, such as a prosecution of vehicular battery. On the surface, it appears that defendant’s argument has merit and that the privilege should have been his to claim.
Defendant’s argument, however, dissolves in the face of the doctrine of “included crimes.” In State v. Fike, 243 Kan. 365, 367, 757 P.2d 724 (1988), Justice Holmes, now Chief Justice Holmes, wrote:
“A lesser offense is a crime which carries a lesser penalty than the penalty for tire crime charged. A class E felony is a lesser crime than felonies designated as class A through class D; a class D felony is a lesser crime than felonies designated class A through C, and so on. When a lesser crime falls within the statutory definitions of an included crime under K.S.A. 1987 Supp. 21-3107(2), it is an included crime of the crime charged." (Emphasis added.)
Justice Holmes went on to say, “While the statute does not use the term ‘lesser included offense,’ it does refer to lesser crimes and included crimes. If a lesser crime is included in the crime charged, it is commonly referred to as a lesser included offense under 21-3107.” 243 Kan. at 367.
K.S.A. 21-3107 provides in pertinent part as follows:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved." (Emphasis added.)
As we read Fike, a lesser included offense is an included crime of the crime charged. Under K.S.A. 21-3107, a person charged with a crime may properly be convicted either of the crime charged or an included crime. The statute defines an included crime various ways, including “a crime necessarily proved if the crime charged were proved.”
If driving while under the influence, as defined by K.S.A. 8-1567, is an “included crime” of vehicular battery, then one charged with vehicular batteiy could be convicted of that crime dr DUI but not both. Under those circumstances, if one risks being convicted of DUI, while defending a charge of vehicular battery, it can be said that a prosecution for a violation of K.S.A 21-3405b is, at the same time, a prosecution for the included crime of DUI.
In State v. Adams, 242 Kan. 20, Syl. ¶ 2, 744 P.2d 833 (1987), the Supreme Court said:
“Under K.S.A. 1986 Supp. 21-3107(2)(d), the offense of driving while under the influence of alcohol is a lesser included offense of involuntary manslaughter where it is alleged as the underlying misdemeanor in the complaint/information, and all of the elements of driving under the influence of alcohol are required to establish the greater offense of involuntary manslaughter.”
On page 24 of the opinion, the court went on to explain:
"In the present case, it seems clear that, in order to prove the defendant guilty of the crime of involuntary manslaughter, the State was compelled to prove all the elements necessary to prove the crime of driving while under the influence of alcohol. Involuntary manslaughter is defined as:
‘the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner.’ K.S.A. 1986 Supp. 21-3404(a).’
“The allegation that defendant Adams drove an automobile while under the influence of alcohol served as one of the elements of the charged crime of involuntary manslaughter. By proving all of the elements necessary to establish involuntary manslaughter, the State necessarily proved each element of the crime of driving while under the influence of alcohol, as defined by K.S.A. 1986 Supp. 8-1567. Thus, having necessarily proven tire lesser offense by proving the greater offense of involuntary manslaughter, the provisions of K.S.A. 1986 Supp. 21-3107(2) prohibit finding the defendant guilty of both involuntary manslaughter and driving while under the influence of alcohol. The necessity of alleging and proving that the defendant was driving while under the influence of alcohol precluded driving while under the influence of alcohol from being a ‘factually related offense.’ ”
See State v. Woodman, 12 Kan. App. 2d 110, 735 P.2d 1102 (1987).
A first conviction of DUI is a class B misdemeanor. A second conviction is classified as a class A misdemeanor. In either case, the mandatory penalties of vehicular battery are more severe than either a first or second DUI conviction. In this case, the DUI was a lesser included offense of vehicular battery.
We hold that based on Adams, a crime of DUI, as defined by K.S.A. 8-1567, is an included offense of the crime of vehicular battery. In this case, each count in the complaint alleged that defendant caused bodily injury to another human being while “committing a violation of K.S.A. 8-1567.” As in Adams, the State in the instant matter had to prove all of the elements “necessary to prove the crime of driving while under the influence” in order to prove vehicular battery.
In addition, the crime of vehicular battery is defined as a crime committed while violating K.S.A. 8-1567. The crime of.DUI is a crime “necessarily proved” if the charged crime of vehicular battery is proved. The defendant in this case, under K.S.A. 21-3107, could have been convicted of the crime charged, vehicular battery, or of DUI, which was necessarily proven in order to establish the crime of vehicular battery. However, under Adams and under K.S.A. 21-3107, defendant could not have been convicted of both. This is a classic example of one crime being an included crime of the other. In this case, defendant ran the risk of being convicted of DUI just as surely as if he had been specifically charged with it.
We hold that DUI, as defined by K.S.A. 8-1567, is an included crime of vehicular battery. It is a crime that must “necessarily” be proven to prove vehicular battery under K.S.A 21-3107. Defendant could have been convicted of a violation of K.S.A. 8-1567 under the charges in this case. As a result, we conclude that this was a prosecution for the “violation of K.S.A. 8-1567” within the framework and meaning of K.S.A. 60-427(b).
Based upon our holding, there was no physician-patient privilege available to defendant in this case. The trial court did not err in admitting the blood alcohol test results into evidence.
Affirmed. | [
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|
Lewis, J.:
Defendant Smith N. Brickhouse was convicted of distribution of marijuana and possession of methamphetamine, both class C felonies, and possession of marijuana, a class A misdemeanor. He was subsequently sentenced to a controlling term of 5 to 15 years. He appeals from those convictions.
Defendant’s problems stem from an agreement between Frank Cardello and Russ Gardner. Cardello, unaware that he was dealing with an undercover police officer, agreed to sell Gardner a quarter of a pound of marijuana for $575. The attempt to execute this agreement led to defendant’s arrest and convictions.
After agreeing on the quantity and price of the drugs involved, Cardello told Gardner that he would require the money in advance. He indicated that after he had the money, he would arrange to meet his “connection,” obtain the drugs, and deliver the amount ordered. Gardner acceded to these terms and obtained $575 in cash from his superiors. Unfortunately for Cardello and defendant, the cash was photocopied prior to being given to Gardner.
The parties to the agreement met at a Denny’s restaurant in Overland Park. Cardello arrived at Denny’s driving a white Honda Accord with dealer tags. After receiving the money, Cardello advised Gardner that he “would go to the Applebee’s at 110th and Metcalf, meet his connection, pick up the marijuana and come right back to the Denny’s to deliver the marijuana to [Gardner].”
Cardello then left Denny’s and proceeded to Applebee’s. Gardner called his supervisor and informed him of the arrangements. The supervisor passed along the information, and police officers soon began to converge on Applebee’s in search of Cardello, who was driving the white Honda automobile.
The police followed Cardello to Applebee’s, where he parked his car and went inside. In the meantime, defendant also arrived at Applebee’s. As the police watched, Cardello and defendant met inside Applebee’s but soon left together-and stood outside the front door. After a period of time, Cardello went to his automobile and sat down in the driver’s seat. The police observed defendant walk to his parked blue Honda automobile and retrieve a backpack from the inside of that vehicle. Defendant then took the backpack, walked to Cardello’s vehicle, and got in the car on the passenger side. As soon as defendant was comfortably seated in Cardello’s automobile, the police moved in, ordered Cardello and defendant out of the automobile, and placed them both under arrest.
A search of Cardello’s vehicle revealed a gray backpack, with the main compartment open, lying between the console and the passenger seat. Also, a quarter-pound bag of marijuana was found on the car floorboard near where defendant had been seated. The backpack was found to contain $475 of the cash which Gardner had given to Cardello. The remaining $100 was found in Cardello’s wallet. In addition, the authorities found in Cardello’s car a small quantity of marijuana in a plastic bag between the driver’s seat and the console.
After defendant had been arrested, he was subjected to a personal search. This search uncovered a small quantity of marijuana in a black fannypack being worn by defendant at the time of his arrest. The search of defendant’s person also yielded a ziplock baggy containing methamphetamine.
The police seized defendant’s automobile for forfeiture purposes pursuant to K.S.A. 1993 Supp. 65-4135. This seizure was accomplished without a warrant and in the absence of any claimed exigent circumstances. The State justifies the seizure under K.S.A. 1993 Supp. 65-4135(b)(3), which permits property to be seized when there is probable cause to believe it was used to violate the Kansas Uniform Controlled Substances Act (Controlled Substances Act). The seized vehicle was impounded and subjected to an inventory search. Among the items recovered from defendant’s automobile was a white plastic tube from the dash, a hand scale with a weight conversion chart from the map holder, and a mobile phone and belt pager in the glove box. In the trunk of defendant’s automobile, the police found a plastic bag containing a quarter-pound of marijuana wrapped in a newspaper. Also from the trunk of the vehicle, the police recovered a first aid kit containing a hypodermic needle, a tablespoon with methamphetamine residue on it, and a plastic bag containing methamphetamine.
The admission of evidence from the various searches described was objected to, unsuccessfully, by defendant.
Other facts will be discussed when appropriate to the issues being recited.
Defendant raises several issues of error which he argues should result in reversal of his convictions.
CARDELLO HEARSAY STATEMENTS
During the course of several conversations with police officers, Cardello gave conflicting explanations of defendant’s involvement in the drug sale to Gardner. He ultimately refused to testify at defendant’s trial based on his Fifth Amendment rights. As a result, statements made by Cardello to the police officers were subject to the hearsay rules at defendant’s trial. One of the hearsay statements made by Cardello to police officers implicated defendant in the drug transaction. The other hearsay statement was exculpatory as to defendant. Both statements were offered for admis sion into evidence at defendant’s trial. The trial court admitted the hearsay statements implicating defendant and refused to admit the hearsay statements which tended to exonerate defendant. Defendant argues that this decision was erroneous and that his conviction should be reversed as a result. We agree.
Approximately one week prior to trial, Cardello told the prosecutors that defendant did not know there was marijuana in the gray backpack which he delivered to Cardello. According to Cardello, he had arranged to buy the marijuana from an individual by the name of Steve Nelson, who allegedly worked with defendant at the same place of business. Nelson, by prearrangement with Cardello, placed the marijuana in defendant’s car without his knowledge. Cardello then called defendant to “meet him for drinks, and once they were together, Mr. Cardello would get the marijuana out of Mr. Brickhouse’s car.” Cardello went on to tell the prosecutors that defendant knew nothing of the marijuana in the backpack until Cardello pulled it out of the bag. Cardello indicates that he then put the $475 in cash in the backpack with instructions to defendant to deliver the backpack to Nelson.
The prosecutors were not satisfied with this particular explanation of defendant’s involvement. After the interview with Cardello was over, the prosecutors called his attorney. The State advised Cardello and his attorney that the plea agreement entered into by them would be off unless Cardello would provide truthful testimony. The prosecutors indicated that they did not believe Cardello’s exculpatory explanation of defendant’s role in the drug transaction.
Sometime after the conversation between the prosecutor and his attorney, Cardello retracted his statement that defendant was unaware that he was delivering drugs in the gray backpack. Cardello told the prosecutors on this occasion that he had lied earlier when he told them defendant knew nothing of the drug deal. He professed to be afraid of defendant and explained that he gave the exculpatory statement to “protect his back.” He then recanted the earlier story and said defendant was involved all along and then refused to talk further with the prosecutors or police authorities.
At the time of defendant’s trial, Cardello invoked his Fifth Amendment rights and refused to testify. The State wished to introduce Cardello’s hearsay statements to Gardner about meeting his “connection” or “source” at Applebee’s. This evidence was obviously very incriminating to defendant, who was the only person who met Cardello at Applebee’s with the desired amount of marijuana in hand. Defendant objected to the admission of this portion of Cardello’s hearsay statements. The trial court overruled this objection and admitted the incriminating testimony under the conspiracy exception to the hearsay rule as set forth in K.S.A. 1993 Supp. 60-460(i)(2).
Defendant’s theory of defense was that he was an innocent pawn of Cardello and Nelson. Defendant insisted he did not know that the backpack he was told to deliver to Cardello contained marijuana. In order to bolster this defense, defendant sought to introduce into evidence the hearsay statement Cardello gave to prosecutors which supported the theory of defense. These statements given by Cardello to the police, and later recanted, supported defendant’s theory of defense and cast doubt on Cardello’s credibility. The trial court, however, refused to admit these hearsay statements of Cardello. It found that the statements were “not reliable.” As a result, the only hearsay evidence the jury heard from Cardello was evidence incriminating defendant.
Our system of justice does not guarantee that a criminal defendant will receive a perfect trial. It does, however, guarantee that a criminal defendant will receive a fair trial which comports with the concepts of due process. We conclude that admitting hearsay evidence from an absent witness that is incriminating while denying admission of hearsay evidence from that same witness which is exculpatory is so unfair as to amount to a denial of due process.
In this case, the jury was asked to determine the facts. One of the facts placed into controversy by defendant was whether he was a willing supplier of drugs to Cardello or an innocent pawn used to deliver drugs he did not know existed. On this issue, the hearsay statements made by Cardello were crucial. The jury was allowed to know via hearsay that Cardello said he would meet his “connection” or “source” at Applebee’s from whom he would obtain the drugs. The evidence showed that the only person he met at Applebee’s was defendant and that defendant was in possession of the drugs which were to be sold to Gardner. This was very incriminating evidence, and it was deemed by the trial court to be reliable and admissible.
The jury was denied access to evidence that, according to Cardello, defendant was an innocent pawn in the drug sale. This denied defendant evidence supportive of his theory of defense. Without the exculpatory evidence from Cardello, defendant had little with which he could refute the obvious implication that he was the “connection” or “source” of whom Cardello spoke. The trial court in this case decided one hearsay statement was reliable while the other was not. In doing so, it unreasonably interfered with the jury’s factfinding duties and prevented defendant from putting on evidence crucial to his theory of defense. This was contrary to our tradition of fairness to both parties and, in our judgment, adversely affected the jury’s effort to determine the true facts.
Our decision on this issue is prompted by the uneven application of the hearsay rule in this case. We are well aware that the law provides that the trial court must first determine the trustworthiness of the declarant before a declaration against interest can be admitted:
“A trial judge has wide discretion in determining the admissibility of a declaration against interest and may consider such factors as the nature and character of the statement, the person to whom the statement was made, the relationship between the parties, and the probable motivation of the declarant in making the statement.” State v. Jones, 246 Kan. 214, 219, 787 P.2d 726 (1990).
“ ‘The statute does, however, require, as a preliminary measure of trustworthiness, that the trial judge, prior to admission of such a declaration, make a finding that the character of the declaration was of such nature a reasonable man would not make it unless he believed it to be true. Probability of veracity is the safeguard sought; the reasonable man test is the criterion to be used.’ ” State v. Jackson, 244 Kan. 621, 624, 772 P.2d 747 (1989) (quoting Thompson v. Norman, 198 Kan. 436, 442-43, 424 P.2d 593 [1967]).
In State v. Thomas, 252 Kan. 564, 572, 847 P.2d 1219 (1993), the Supreme Court declared that the exclusion of hearsay is within the sound discretion of the trial court and should not be disturbed on appeal absent an abuse of discretion.
We do not disagree with what our Supreme Court has said on the subject at hand. We simply hold that here, under the facts presented, the uneven application of the hearsay rule was unfair and an abuse of discretion.
State v. Josenberger, 17 Kan. App. 2d 167, 836 P.2d 11, rev. denied 251 Kan. 941 (1992), is factually similar to the case at hand. In Josenberger, we held that it was error to exclude direct exculpatory testimony. That error was not reversible, however, because the evidence was admitted through other witnesses. In this case, the error was reversible because the testimony was directly exculpatory, was not available through the testimony of other witnesses, and was contrary to an admitted incriminating statement by the same witness.
We believe that the rationale employed in Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), is illustrative and supportive of our holding on this issue. In Chambers, a witness had given a written confession in which he admitted to having committing the crime with which the defendant was charged. The defendant called this individual as a witness and, on cross-examination by the State, the witness repudiated the confession and asserted an alibi. The defendant then sought to cross-examine the witness concerning his alibi, the circumstances of his repudiation, and one oral confession he had made to other witnesses. The trial court refused to permit such cross-examination because of the rule that a party may not impeach his own witness. The defendant then sought to call three other witnesses who would each testify that the individual involved had orally confessed to the crime. The testimony of these three witnesses was excluded as hearsay. Chambers argued that he was thwarted in his attempt to present his defense by the application of Mississippi rules of evidence. He contended that the application of these evidentiary rules rendered his trial fundamentally unfair and deprived him of due process of law. The Supreme Court in Chambers agreed with the defendant. The court held that “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” 410 U.S. at 302.
We do not suggest that in this case the hearsay rule was necessarily applied in a mechanistic manner. However, here, the hearsay rule was applied to deprive defendant of evidence vital to his theory of defense, while at the same time that rule was manipulated to admit into evidence a hearsay statement of the same declarant incriminating defendant. We suggest that such an application of the hearsay rule is unfair and deprived defendant of the right to present his theory of defense to the jury. Whatever name one may wish to use, the admission of an incriminating hearsay statement, coupled with the refusal to admit an exculpatoiy hearsay statement by the same declarant, is so fundamentally unfair as to be an abuse of discretion and a denial of due process under the facts presented.
We hold that if an incriminating hearsay statement is admitted in an effort to convict a defendant, an exculpatory hearsay statement by the same declarant which tends to exonerate that defendant or which supports the theory of defense may not be denied admission into evidence on the grounds that it is unreliable. Application of the hearsay rule in this manner offends our sense of justice and fair play and affects the jury process in an unacceptable manner. The question of whether the exculpatory statement is reliable is overridden by the inherent unfairness that will occur if that statement is excluded while a similar hearsay statement that is incriminating is admitted.
Our decision requires that we reverse defendant’s conviction and remand the matter for a new trial. In doing so, we note that we have examined defendant’s objections to the admission of the statements by Cardello as to meeting his “connection” or “source.” We find those objections to be without merit. The trial court did not err in admitting that statement. The error came about in its refusal to admit the exculpatory statement made by Cardello which supported the theory of defense.
SEARCH AND SEIZURE ISSUES
Although we have reversed defendant’s convictions, the other issues raised on appeal will have an important impact on retrial. For that reason, we will decide those issues. We begin with the search and seizure issues raised.
A. SEARCH OF CARDELLO’S AUTOMOBILE AND DEFENDANT’S PERSON
At trial, defendant sought to suppress all evidence seized from his person and from Cardello’s automobile. We begin by noting that defendant was, at best, a passenger in Cardello’s car, and ordinarily a passenger lacks standing to challenge the validity of the search of another’s car unless that person can show ownership, possession, or control of the vehicle. State v. Epperson, 237 Kan. 707, Syl. ¶ 6, 703 P.2d 761 (1985). An individual may challenge such a search, however, if the search stems from an unlawful stop or unlawful arrest. Defendant contends his arrest was unlawful and that all evidence seized from the vehicle belonging to Cardello or from the person of defendant was seized pursuant to an unlawful arrest and should not have been admitted at trial. It is defendant’s position that the police officers lacked probable cause to arrest him. We do not agree.
The validity of a warrantless arrest depends upon whether, at the moment the arrest was made, the officer had probable cause to make the arrest. State v. Press, 9 Kan. App. 2d 589, 685 P.2d 887, rev. denied 236 Kan. 877 (1984). “ ‘Probable cause for arrest exists if facts and circumstances within an arresting officer’s knowledge and of which he has reasonable trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed.’ ” 9 Kan. App. 2d at 592.
“When the constitutional validity of an arrest is challenged, it is the function of the court to determine whether the facts within the knowledge of the officers at the moment of arrest and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense.” State v. Parks, 5 Kan. App. 2d 644, 647, 623 P.2d 516 (1981).
The issue is whether a prudent person could believe under the circumstances shown that defendant was committing a crime. We conclude that the evidence is overwhelming in support of the proposition that probable cause existed to believe that defendant was committing a crime when arrested. The police had information that Cardello had agreed to sell drugs to Gardner and that Cardello was going to go to Applebee’s and meet his source or connection. The police followed Cardello to Applebee’s, where he met defendant; defendant retrieved a gray backpack from his blue Honda and joined Cardello in his white Honda. This information is certainly sufficient to provide probable cause to believe that a drug transaction was occurring and that defendant was a party to that transaction. We hold that there was probable cause to arrest defendant and that the fruits of the search of Cardello’s car and defendant’s person, incident to that arrest, were admissible.
B. SEIZURE OF DEFENDANT’S AUTOMOBILE-INVENTORY SEARCH
This issue is considerably more troublesome. The search of defendant’s automobile was conducted after it was seized, without a warrant, pursuant to K.S.A. 1993 Supp. 65-4135. The State seeks to justify the seizure and subsequent inventoxy search of defendant’s automobile by invoking the state forfeiture statute. The State does not argue that there were any exigent circumstances or other exceptions which existed to justify the warrantless seizure of defendant’s vehicle.
Defendant argues that the warrantless seizure of his vehicle violated his Fourth Amendment rights and that any evidence obtained as a result of that seizure should be suppressed.
The issue presented is one of first impression in this state but has been the subject of a number of federal and other state decisions.
The general rule is that all warrantless searches and seizures are invalid and evidence obtained as a result of an invalid search is inadmissible in a criminal prosecution of the party whose rights were violated. There are a number of exceptions to that general rule which have been developed by the courts through the years. See Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967); State v. Teeter, 249 Kan. 548, 550, 819 P.2d 651 (1991).
The seizure of defendant's vehicle was accomplished without a warrant, as was the subsequent inventory search. The State does not assert the existence of any recognized exception to the warrant requirement. The State stands on the proposition that it had probable cause to seize the vehicle under die Kansas forfeiture statute and that this statute validates the seizure and subsequent inventory search.
The question we must decide is whether the warrandess seizure of a vehicle pursuant to our forfeiture statute was reasonable under the constitutional provisions against unreasonable searches and seizures. We hold that it was.
The Kansas forfeiture statute, K.S.A. 1993 Supp. 65-4135(a)(4), permits the forfeiture of vehicles which “are used or intended for use to transport or in any manner to facilitate the transportation, sale, receipt, possession, concealment, purchase, exchange or giving away of” controlled substances. K.S.A. 1993 Supp. 65-4135(b) goes on to provide:
“Property subject to forfeiture under this act may be seized by any law enforcement officer upon process issued by any district court having jurisdiction over the property. Seizure by a law enforcement officer may be made without process if:
(1) The seizure is incident to a lawful arrest or a lawful search conducted by a law enforcement officer;
(2) the property subject to seizure has been the subject of a prior judgment in favor of the state or municipality under this act; or
(3) there is probable cause to believe that the property was used in violation of this act.” (Emphasis added).
Subsection (d) of the statute provides that property seized under the forfeiture act may be moved to a place designated by the law enforcement agency.
Under the Kansas forfeiture statute, the police officers were authorized to seize defendant's vehicle and remove it to a designated location if they had probable cause to believe that the vehicle had been used in violation of the Controlled Substances Act.
We have examined the record and conclude that it provides ample support for a finding that there was probable cause to believe defendant's vehicle had been used to transport controlled substances in violation of the Controlled Substances Act. The evidence clearly indicates that the vehicle was used to transport the gray backpack to Applebee’s and that the backpack, when removed from the vehicle, was found to contain controlled substances. We therefore hold that the warrantless seizure of defendant’s vehicle was authorized by K.S.A. 1993 Supp. 65-4135(b)(3).
The forfeiture statutes of this state contemplate that a civil action will follow to forfeit the property seized. The mere fact that the seizure was permitted or authorized by statute does not necessarily mean that evidence obtained in the ensuing inventory search is admissible in a criminal action.
“[The government] contends that the plain language of the civil forfeiture statute absolves it of any responsibility to obtain a warrant in executing seizures of property used in connection with eontrolled-substance transactions. The government argues that die forfeiture statute represents congress’s decision to create a new exception to the fourth amendment’s warrant requirement. In essence, it argues that congress has amended the constitution. To state the position is to refute it, because congress cannot authorize by legislation what the constitution forbids. Marbury v. Madison, 5 U.S. 87, 1 Cranch 137, 2 L. Ed. 60 (1803); see also Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S. Ct. 2535, 2539, 35 L. Ed. 2d 596 (1973) (‘no act of Congress can authorize a violation of the constitution’).” U.S. v. Lasanta, 978 F.2d 1300, 1304 (2d Cir. 1992).
The Kansas Legislature has authorized, by statute, the warrantless seizure of a vehicle based upon probable cause that it had been used to facilitate a drug transaction. The question is whether such a warrantless seizure violates constitutional prohibitions against illegal search and seizure. We hold that it does not.
We believe that the issue was basically decided in 1967 in the case of Cooper v. California, 386 U.S. 58, 17 L. Ed. 2d 730, 87 S. Ct. 788 (1967). In that case, the defendant was arrested on a narcotics violation, and his car was seized without a warrant. The seizure was justified under a California statute which authorized seizure of a vehicle used to store, conceal, transport, or sell narcotics. One week after the vehicle was seized, it was searched, and narcotics were discovered. The State conceded that the search was not conducted incident to a lawful arrest and sought to justify the search solely on the theory that the vehicle was in the lawful custody of the State under its forfeiture statute. The Supreme Court held the search lawful and explained:
“But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one. ’VWiile it is true, as the lower court said, that ‘lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it,’ . . . the reason for and nature of the custody may constitutionally justify the search. . . . Here the officers seized petitioner’s car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car — whether the State had ‘legal title’ to it or not — was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner’s .car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for ‘[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’ United States v. Rabinowitz, 339 U.S. 56, 66. Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding.” (Emphasis added.) 386 U.S. at 61-62.
There have been considerable debate through the years as to the proper interpretation of Cooper. Most courts have construed it broadly as authorizing the sort of procedure employed in the instant matter. In this case, the vehicle was in the lawful custody of the State when it was searched under circumstances less egregious than those shown in Cooper. It appears to us that Cooper upholds the warrantless seizure of a vehicle pursuant to a state forfeiture statute as being reasonable. Once the seizure is accomplished, the police may search the vehicle in an inventory search at their leisure, and the fruits of the search are admissible as evidence. As we interpret Cooper, a warrantless seizure such as that employed in the instant matter is not unreasonable under the Fourth Amendment.
The Kansas forfeiture statutes “are similar to the federal forfeiture statute. See 21 U.S.C. § 881 (1988).” City of Lenexa v. A Maroon 1978 Chevrolet, 15 Kan. App. 2d 333, 335, 807 P.2d 694 (1991). Our statute is similar to its counterpart in the Uniform Controlled Substances Act, 9 U.L.A. § 505 (1988). There are certain differences between our act, the federal act, and the Uniform Controlled Substances Act, but they are minor and of little importance. For all intents and purposes, the three are identical. For these reasons, federal decisions and some sister state decisions are relevant.
There is a split in the federal circuits. The majority of the circuits that have considered the question have held that a warrantless seizure of a vehicle under the federal forfeiture act does not violate the Fourth Amendment and that evidence obtained in a subsequent inventory search is admissible in a criminal prosecution. U.S. v. Decker, 19 F.3d 287 (6th Cir. 1994); U.S. v. Pace, 898 F.2d 1218 (7th Cir. 1990); U.S. v. Linn, 880 F.2d 209 (9th Cir. 1989); U.S. v. Valdes, 876 F.2d 1554 (11th Cir. 1989); U.S. v. One 1978 Mercedes Benz, Four-Door Sedan, 711 F.2d 1297 (5th Cir. 1983); United States v. Kemp, 690 F.2d 397 (4th Cir. 1982); United States v. Bush, 647 F.2d 357 (3d Cir. 1981).
Only two circuits have held the procedure in question to have been a violation of a defendant’s Fourth Amendment rights. See U.S. v. Dixon, 1 F.3d 1080 (10th Cir. 1993); U.S. v. Lasanta, 978 F.2d 1300; U.S. v. $149,442.43 in U.S. Currency, 965 F.2d 868 (10th Cir. 1992).
It is relevant to note that in both Dixon and Lasanta, the court, while holding that the warrantless seizure violated a defendant’s Fourth Amendment rights, still found another method of admitting the evidence. In Dixon, the court held the search and seizure to be illegal but concluded that a pound of cocaine found days after the car was seized and discovered only when the cellular phone was being removed, was in plain view and admissible under that exception to the warrant requirement. 1 F.3d at 1084. In Lasanta, after concluding that the search and seizure was illegal, the court found it to be harmless error and affirmed the conviction. 978 F.2d at 1306.
We have examined these federal decisions and find the rationale employed by the majority view to be persuasive.
There are a number of state decisions on the issue. In State v. McFadden, 63 Wash. App. 441, 449, 820 P.2d 53 (1991), rev. denied 119 Wash. 2d 1002 (1992), the facts were similar to those in the matter under consideration. In that case, the Washington court held: “We hold that a motor vehicle seized pursuant to [Washington forfeiture statute] on probable cause that it is used to facilitate a drug transaction is subject to a valid inventory search and evidence found in the course of such a search is admissible at trial.” See Lowery v. Nelson, 43 Wash. App. 747, 719 P.2d 594, rev. denied 106 Wash. 2d 1013 (1986).
The Supreme Court of Utah reached a contrary result in Davis v. State, 813 P.2d 1178 (Utah 1991).
We join the majority of the federal and state decisions which have considered the issue and hold that a warrantless seizure of a motor vehicle based on probable cause that the vehicle was used to violate the Controlled Substances Act does not violate the Fourth Amendment prohibition against unreasonable searches and seizure. We also hold that such a seizure subjects the vehicle to a valid inventory search and that evidence found in the course of such search is admissible in a criminal prosecution.
There are numerous reasons set forth by the various decisions for upholding the search and seizure under the circumstances outlined.
We prefer the rationale used by the Third Circuit in United States v. Bush and by the Seventh Circuit in U. S. v. Pace. Those courts reasoned that if the warrantless arrest of an individual based upon probable cause was constitutional, then the warrant-less seizure of an automobile based on probable cause must also be constitutional. Pace, 898 F.2d at 1242; Bush, 647 F.2d at 370. The logic in Pace is particularly compelling. If the Constitution authorizes the seizure of one’s person without a warrant based upon probable cause that the individual has committed a crime, can it be said that this same document would prohibit the seizure of property based upon probable cause that the property had been used to commit a crime? We think not. We are unable to say that under our system of justice an individual’s personal freedom can carry less protection than the right to privacy in his or her automobile. It is a matter of elemental criminal law that an individual’s personal freedom may be restrained without a warrant based upon probable cause that he or she has committed a crime. That being true, who can logically conclude that the State may not permit an individual’s property to be seized under like circumstances?
We focus on the issue as framed by the United States Supreme Court in Cooper v. California. “But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment.” 386 U.S. at 61. In this context, we must decide whether the seizure of defendant’s vehicle was reasonable under the Fourth Amendment. We hold that it was.
In the matter now under consideration, defendant’s person was seized without a warrant, and he was placed under arrest and deprived of his freedom. This warrantless seizure was accomplished upon probable cause that he had committed a crime, and such a seizure is universally held to be reasonable and constitutional. If the seizure of his person without a warrant on probable cause was reasonable and constitutional, we are unable to logically conclude that the seizure of his automobile was not. The State has permitted the arrest of an individual without a warrant based upon probable cause that the individual has committed a crime. Such an arrest is constitutionally permitted. The State has now authorized the seizure of a vehicle without a warrant based upon probable cause that the vehicle was used in a drug transaction. That enactment is reasonable and constitutional. We hold that a warrantless seizure pursuant to K.S.A. 1993 Supp. 65-4135 is reasonable and does not violate the Fourth Amendment of the Constitution of the United States or its counterpart in the Kansas Constitution.
The seizure of defendant’s automobile was valid. The record shows that after the seizure, the vehicle was subjected to a valid inventory search that complies in all respect with state and federal law. As a result, the evidence obtained in that search will be admissible against defendant at the trial on remand.
MULTIPLICITY
Defendant’s final argument is that the crime of distribution of marijuana is multiplicitous with the crime of possession of marijuana.
Defendant argues that the same drugs were involved in the distribution and possession convictions. He cites State v. Becknell, 5 Kan. App. 2d 269, 615 P.2d 795 (1980), in support of his argument. In Becknell, we held that convictions for the possession of LSD and the sale of LSD were multiplicitous when the,“counts of possession in this case were possession of the same drugs involved in the sale transactions for which appellant was prosecuted.” 5 Kan. App. 2d at 275.
We have examined Becknell, compared it with the facts of this case, and hold that it does not apply. The problem with defendant’s argument is that there are three distinct quantities of marijuana which he was charged with having possessed. We begin with the quarter pound of marijuana he is charged with having sold or delivered to Cardello. Secondly, there is the personal use amount of marijuana seized from his fannypack. Finally, there is the quarter pound of marijuana found in the trunk of his car.
The evidence in this case clearly shows that there were adequate separate amounts of marijuana seized from different locations to support defendant’s convictions for distribution of marijuana and simple possession of marijuana. Facts similar to those present in Becknell are not present in the instant matter, and Becknell does not apply.
The simple possession charge can stand on the basis of the quantity seized from defendant’s fannypack. The distribution of marijuana charge can stand on the quarter pound seized from the floorboard of Cardello’s car.
Based on the facts of this case, the convictions for distribution of marijuana and possession of marijuana are not multiplicitous.
Defendant’s convictions are reversed, and the matter is remanded for a new trial consistent with this opinion.
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Royse, J.:
LaToya D. Austin filed a petition for discovery against Johnston Coca-Cola Bottling Group, Inc. Johnston Coca-Cola filed a motion to dismiss, which the district court granted. Austin appeals.
The factual background to this case is undisputed. Austin worked for Able Employment, Inc., (Able) a temporary employment placement service. Able placed Austin at Johnston Coca-Cola in Lenexa, Kansas. While cleaning a bottling machine, Austin was injured.
Austin pursued her workers compensation claim against Able and its insurance carrier, Aetna. During the workers compensation proceedings, Austin served a subpoena duces tecum on William Cahill, director of human resources for Johnston Coca-Cola. The subpoena ordered Cahill to produce all records, statements, and reports regarding her injury, and all manuals, instructions, and diagrams' on operating and/or cleaning the machine that caused her injury. The administrative law judge ruled that Austin could not depose Cahill for a possible third-party claim in the workers compensation case. The propriety of this ruling is not before us.
Austin next wrote a letter to Johnston Coca-Cola asking for certain documents and for permission to conduct an inspection of the bottling machine. That letter apparently did not achieve the desired result, as Austin proceeded to file this action. In addition to her petition for discovery pursuant to K.S.A. 60-234(c), Austin served Johnston Coca-Cola with interrogatories, a request for production of documents, and a request for entry upon defendant’s land and inspection of the bottling machine. Austin asserted no substantive claim against Johnston Coca-Cola and takes the position that the Workers Compensation Act precludes any tort claim against Johnston Coca-Cola.
Johnston Coca-Cola filed an answer and a motion to dismiss for failure to state a claim upon which relief can be granted. The district court granted the motion to dismiss, concluding: (1) K.S.A. 60-234(c) does not create a cause of action for discovery against non-parties; (2) Kansas law does not recognize the equitable bill of discovery; and (3) it lacked personal and subject matter jurisdiction.
The district court’s determination that Austin’s petition failed to state a cognizable claim was a legal conclusion, subject to unlimited review on appeal. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Before addressing the specific arguments raised by Austin, we believe it helpful to examine an early case that considered the equitable bill of discovery. In Pyramid Life Ins. Co. v. Gleason Hospital, 188 Kan. 95, 360 P.2d 858 (1961), the insurance company sought an injunction compelling the hospital to let the insurance company copy the hospital records of policyholders who had been patients in the hospital. The district court denied the requested injunction, and Pyramid appealed. The Kansas Supreme Court concluded that Pyramid was impermissibly trying to discover whether it had a cause of action against the hospital for claims it had long ago paid. “[Pyramid] either seeks to circumvent or fails to recognize that a bill of discovery is not authorized by the Kansas code of civil procedure or in the practice of the Kansas courts.” 188 Kan. at 100.
The court commented that, even under the federal rules, discovery “does not constitute an unrestricted fishing license.” 188 Kan. at 100.
“ ‘The right to require a disclosure is generally limited to instances where there is a real cause of action pending or imminent, and the court is entitled to the information in aid of proper judicial proceedings. The applicant must show a cause of action or defense existing in aid of which discovery is sought, and disclosure cannot be required if the action or the defense itself cannot be maintained. In other words, a partij is not entitled to a discovery to enable him to ascertain whether he has a cause of action.'" (Emphasis added.) 188 Kan. at 101 (quoting 17 Am. Jur., Discovery and Inspection § 10, pp. 14-15).
Pyramid, then, made clear that Kansas does not permit a suit solely for the purpose of obtaining discoveiy. See Bishop Clarkson Memorial Hospital v. Reserve Life Ins. Co., 350 F.2d 1006, 1011 (8th Cir. 1965); Note, Enlarging Kansas Discovery, 11 Kan. L. Rev. 221, 226 (1962). This rule is sometimes phrased as a prohibition on discoveiy against nonparties, because no substantive right of recovery is asserted in an action for discovery.
On appeal, Austin argues that K.S.A. 60-234(c) now provides that an independent cause of action for discoveiy exists. That subsection reads: “(c) Persons not parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.” The legislature adopted K.S.A. 60-234(c) in 1972, copying a 1971 addition to the Federal Rules of Civil Procedure.
Austin correcdy notes that the Kansas courts have traditionally followed the interpretation of federal procedural rules after which Kansas rules have been patterned. See Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975). The Advisoiy Committee Notes accompanying Rule 34 make clear that the rule applies “only to parties.” Advisory Committee Notes to Fed. R. Civ. Proc. 34. Likewise, courts interpreting Rule 34 have consistently held that the rule does not create a cause of action for discovery. Pollitt v. Mobay Chem. Corp., 95 F.R.D. 101, 106 (S.D. Ohio 1982) (“[I]t is well settled that Rule 34 provides this Court with no authority to order a non-party to permit entry on land."). Home Ins. Co. v. First Nat. Bank of Rome, 89 F.R.D. 485, 487 (N.D. Ga. 1980) (“Rule 34(c) states that independent actions are not precluded; however, it contains no language authorizing such discovery.”). See 8A Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d §§ 2208-2209 (1994); 4A Moore’s Federal Practice ¶ 34.22 (1994).
The 1971 addition to Rule 34 was an effort to eliminate confusion about whether Rule 34 precluded a discovery action against a nonparty. In jurisdictions where independent discovery actions had previously been recognized, some courts were reading Rule 34 as preempting independent actions for discovery. The Advisory Committee explained the addition of .subsection (c) as follows:
“Rule 34 as revised continues to apply only to parties. Comments from the bar make clear that in the preparation of cases for trial it is occasionally necessary to enter land or inspect large tangible things in the possession of a person not a party, and that some courts have dismissed independent actions in die nature of bills of equity for such discovery'on the ground that Rule 34 is preemptive. While an ideal solution to this problem is to provide for discovery against persons not parties in Rule 34, both the jurisdictional and procedural problems are very complex. For the present, this subdivision makes clear that Rule 34 does not preclude independent actions for discovery against persons not parties.”
Thus, the Advisory Committee Notes makes clear — and the courts have agreed — that Rule 34(c) as adopted in 1971 does not authorize an independent action for discovery. See, e.g., Reilly Tar Corp. v. Burlington N. R. Co., 589 F. Supp. 275, 278 (D. Minn. 1984) (“Rule 34(c) itself does not authorize a court to order discovery of nonparty land.”). The shaping of an independent discovery device, if one were to exist at all, was left to the courts. Note, Rule 34(c) and Discovery of Nonparty Land, 85 Yale L.J. 112, 114 n.18 (1975).
The cases cited by Austin do not hold that Rule 34(c) creates an independent cause of action for discovery. Instead, they judicially authorize use of the equitable bill of discovery, apart from the rules of civil procedure. Lubrin v. Hess Oil Virgin Islands Corp., 109 F.R.D. 403, 405 (D.V.I. 1986); Wimes v. Eaton Corp., 573 F. Supp. 331, 335 (E.D. Wis. 1983); Home Ins. Co. v. First Nat. Bank of Rome, 89 F.R.D. 485; Temple v. Chevron U.S.A. Inc., 254 Mont. 455, 840 P.2d 561 (1992).
In interpreting a plain and unambiguous statute, the courts 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). Austin s argument that K.S.A. 60-234(c) pronounces a right to bring an independent discovery action is contrary to the language of the statute.
Certainly, if the legislature had intended to create the right to pursue an independent discovery action, it could have expanded K.S.A. 60-234 to do so. See, e.g., K.S.A. 60-227 (allowing deposition before action to perpetuate testimony); K.S.A. 60-245a (providing for the subpoena of a non-party’s business records). In fact, the federal rules were modified in 1991 to provide for discovery against nonparties. Fed. R. Civ. Proc. 34(c) now provides: “A person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45.” Significantly, Kansas has not adopted the 1991 change to Rule 34(c).
For the foregoing reasons, we agree with the district court that K.S.A. 60-234(c) does not create an independent cause of action for discovery against nonparties.
Austin attempts to avoid the conclusion of Pyramid Life Ins. Co. v. Gleason Hospital, 188 Kan. 95, that Kansas courts have not recognized an independent cause of action for discovery. Austin contends that Pyramid was decided under pre-1963 rules of procedure and has no application to K.S.A. 60-234(c). Austin’s argument ignores the fact that Pyramid did not rely solely on the Kansas code of civil procedure; die holding makes clear that Kansas courts have not authorized use of the bill of discovery. In addition, the legislature enacted the code of civil procedure in 1963 and had the opportunity to overrule Pyramid, but chose not to do so. Austin’s suggestion that the legislature tacidy overturned the Pyramid holding is without merit.
The district court did not err in holding that Kansas law does not recognize the equitable bill of discovery.
Austin’s third argument on appeal is that the district court erred in holding that it lacked subject matter jurisdiction in this case. Austin has conceded, however, that the district court was correct if there is no independent cause of action for discovery. In light of our conclusion that Kansas does not recognize an independent cause of action for discovery, the district court did not err in concluding that it lacked subject matter jurisdiction.
Austin’s final argument is that the district court erred in holding that it lacked personal jurisdiction over Johnston Coca-Cola. Johnston Coca-Cola did not assert the defense of lack of personal jurisdiction in its answer or in its motion to dismiss. If not raised in an answer or motion, the defense of lack of personal jurisdiction is waived. K.S.A. 60-212(h)(l). The district court, therefore, erred in concluding that it lacked personal jurisdiction over Johnston Coca-Cola. This error was harmless because the district court had correctly determined that Austin failed to state a cause of action. See Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, Syl. ¶ 3, 836 P.2d 1102 (1992).
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Pierron, J.:
Margaret Mahoney appeals from an order admitting an executed copy of the will of Mary Kasper, deceased, to probate. Mahoney contends the trial court erred by concluding there was substantial competent evidence to rebut the common-law presumption that the will had been revoked. In addition, she argues the trial court erred by admitting into evidence prior statements made by the decedent.
On April 25, 1991, Mary Kasper executed a will drafted by her attorney, Kenneth Cole. When Mary left Mr. Cole’s office, she was carrying both the original and a copy of her will. Louis Kasper, Maiy’s brother, drove her home and observed her as she placed both documents on her kitchen table.
Several months later, Louis saw both of the documents in a jar on Maiy’s kitchen table. The original and the copy of the will were in identical envelopes.
On February 9, 1992, Mary told Louis she did not want her will around the house. The following day, she gave Louis an envelope with instructions to deposit it into her safety deposit box at the Wilson State Bank. Mary told Louis, and he believed, that the envelope contained her will. Louis deposited the envelope marked “Legal Documents” into Maiy’s safety deposit box on February 10, 1992.
Mary died on March 20, 1993. Three days later, Louis and his son, John Kasper, went to Wilson State Bank to retrieve her will from the safety deposit box. At that time, they discovered the envelope contained a copy of her will, rather than the original will. After searching Mary’s house, they were unable to locate the original will. Louis does not know whether Mary intended to give him the copy or the original. No one knows what happened to Maiy’s original will. Consequently, on May 7, 1993, Louis and John filed a petition for probate of a lost will, pursuant to K.S.A. 59-2228.
On June 1,1993, Mahoney filed written defenses to the petition for probate of a lost will and for letters testamentary. She objected to probating the lost will, alleging the copy submitted for probate was not the last will and testament of Mary Kasper. A hearing was scheduled, and the matter was tried to the court on November 19, 1993.
Mahoney sought to deny admittance of the copy of the will to probate by raising the common-law presumption that the will had been revoked. This presumption, which is recognized in Kansas is stated as follows:
“Where the facts disclose that a will, duly executed, was in the possession of the testator for some time immediately prior to his death and it cannot be found after his death, a rebuttable presumption arises that he did revoke the will or that he destroyed it with the intention of revoking it. Churchill v. Dill, 145 Kan. 306, 308, 65 P.2d 337 (1937); 79 Am. Jur. 2d, Wills § 606, p. 704.” In re Estate of Thompson, 226 Kan. 437, 442, 601 P.2d 1105 (1979).
The parties stipulated that the will dated April 25, 1991, was signed by Mary and properly witnessed by two subscribing witnesses. In addition, the parties stipulated that Mr. Cole delivered the original and a copy of the will to Mary. Mahoney did not question whether the provisions of the April 25, 1991, will had been adequately established. Thus, the only issue addressed at the hearing was whether there was sufficient evidence to rebut the presumption that the will had been revoked.
Although Louis and John acknowledge they do not know what happened to the original will, they maintain Mary lost it. Louis, John, and Belinda Kasper (John’s wife) each testified Mary had a habit of misplacing things. John, who had assisted Mary in her legal and financial affairs, testified that he frequently had to help Mary search various parts of her house to locate bank statements. Likewise, Belinda testified “it would [sic] hide and go seek with papers in that house.” On at least one occasion, Mary was seen placing documents in a trash can near her favorite chair when she was not sure who was walking into the room. However, Mary never asked Louis to look for her will or told him it was lost.
Mahoney contends the will could have been removed from the jar on Mary’s kitchen table anytime after February 10, 1992, the date Louis deposited the copy with the Wilson State Bank. John testified that a week or two after February 10,1992, the envelope, that had contained the original will, was no longer in the jar.
The facts surrounding the relationship between Mary and Ma-honey’s family shed light on Mary’s intent regarding her will. After the death of Paul Kasper, Mary’s brother, a family controversy arose between the Louis Kasper family (Louis, John, and Mary Vopat) and the Jim Kasper family (Mahoney, Jim Kasper, and Susan Kasper). Apparently, Paul had established a testamentary trust. For some reason, the Jim Kasper family was dissatisfied with the trust and forced its dissolution. Mary was deeply upset over the controversy. So much so, that in 1991 Mary revoked a prior will, executed in 1989, and replaced it with the will in question.
Under the terms of the 1991 will, Mary made a number of specific bequests to her nieces, nephew, great nieces, and her sister-in-law. Under the residuary clause, Mary left an undivided one-fourth interest to Vivian Zamrzla (niece); Mary Vopat (niece); Loretta Lowry (niece); and John Kasper (nephew). Thé members of the Jim Kasper family, who had caused Paul’s trust to be dissolved, including Mahoney, received nothing under the terms of the 1991 will.
Louis would receive nothing if the will was admitted to probate, but if Mary’s estate passed through intestacy, he would receive a one-third share. He testified that in the past, when Mary contemplated making changes to her will, she talked to him about those changes. Mary never expressed any regrets about changing her will in 1991. She never indicated to Louis she was going to revoke the 1991 will, nor did she ask him to retrieve or destroy the instrument in the safety deposit box.
John testified Maiy was upset with Mahoney, Susan, and Jim. In Januaiy 1993, Mary was going into the hospital to have surgery. Around Christmas, two to four weeks prior to surgery, she discussed her affairs with John. Over counsel’s objection, John testified regarding that conversation. According to John, Mary wanted to be sure that Mahoney, Jim, and Susan would receive nothing under the terms of her 1991 will. In addition, she wanted to be sure her great nieces received the specific bequests provided in her 1991 will.
Maiy never expressed to John any regrets over the contents of her 1991 will. She entered the hospital on January 7, 1993. She spent a few days in a nursing home in Wilson and later died in the hospital. She never returned home. Thus, Mary only had access to her will for a few weeks following her conversation with John.
Vivian Zamrzla, Mary’s niece, also testified Mary was upset with the members of the Jim Kasper family. On a number of occasions, including Thanksgiving 1993, Maiy continued to express hostility toward them. She was further upset because Jim and his wife no longer came to visit her. Vivian also testified Mary never expressed any regrets regarding her will.
Mary Vopat, whom Mary depended on for her day-to-day maintenance, testified regarding the disdain Maiy expressed toward the Jim Kasper family. Apparently, when Paul’s trust was dissolved, Mary lost some income. Mary Vopat recalled one occasion when Mary did not have enough money for her prescriptions and said, “I don’t have money for my prescriptions, well, I hope they’re happy.”
Mary Vopat visited Mary in the hospital several times. During one of those visits, Mary received flowers from Jim. Mary told Mrs. Vopat to remove the flowers from her room. On another occasion, Jim and his wife visited Mary in the nursing home. The visit upset Maiy a great deal.
Belinda Kasper, also testified regarding the animosity that Mary expressed toward Mahoney, Jim, and Susan. Over objection, Belinda testified regarding a conversation between her and Mary in December 1992. Mary told Belinda the three members of the Jim Kasper family would get nothing under her will. In addition, Mary said Belinda’s children would be provided for in her will.
At the conclusion of the evidence, the trial court made the following findings of fact:
“On February the 10th, 1992, thirteen months before her death she directed her will be placed in a safety deposit box by her brother, Louis Kasper. She never expressed dissatisfaction with the terms of the 1991 will with any of the family confidants who testified in this hearing. It was known that she occasionally misplaced canceled checks and misplaced business papers in various parts or places in her house. She occasionally may have hidden papers. Her anger toward her brother Jim’s children does not seem to have abated before her death. In November and December before her death she apparently confirmed certain provisions of the missing will regarding her grand nieces Theresa and Mary Elizabeth Kasper. Three weeks after her surgery and shortly before her death she directed flowers from Jim’s family be removed from her hospital room. Shortly before her death she was apparently upset by a visit from Nephew Jim while in the nursing home rather than being happy to see him. The envelope containing the copy of the will bears an imposing caption of, quote, legal documents, closed quote, which is capable of misleading one concerning the contents.”
Further, the court found “[t]he presumption that the testatrix intended to revoke the will has been rebutted by clear and convincing evidence and the will is deemed lost.” The court ordered the copy of Mary’s will admitted to probate pursuant to K.S.A. 59-2225. Mahoney appeals.
The first issue raised on appeal is whether there was sufficient evidence to rebut the common-law presumption that the will had been revoked. This court has recently had two occasions to address this issue: In re Estate of Day, 12 Kan. App. 2d 668, 753 P.2d 1296, rev. denied 243 Kan. 778 (1988); In re Estate of Mattee, 10 Kan. App. 2d 184, 694 P.2d 1325, aff’d 237 Kan. 652, 702 P.2d 1381 (1985).
In In re Estate of Day, 12 Kan. App. 2d at 668, Syl. ¶ 2, we found:
“If the presumption that the testator’s intent to revoke is rebutted, the will is deemed lost, and a copy of the last will may be admitted to probate if the provisions of K.S.A. 59-2228 are satisfied. If the presumption is not overcome, probate of the will is denied on the basis of the inferred intent to revoke.”
“Proving that a will is revoked and establishing a lost will are different issues.” In re Estate of Mettee, 10 Kan. App. 2d at 187. K.S.A. 59-2228 provides that “[a] lost or destroyed will may be established if its provisions are clearly and distinctly proved.” Before the trial court, Mahoney did not question the proof regarding the provisions of Mary’s will, nor does she raise that issue before this court. Nonetheless, we note an unchallenged copy of Mary’s will was produced and is sufficient to clearly and distinctly prove the provisions of her will. See Churchill v. Dill, 145 Kan. at 308.
On appeal, “we view the evidence, as we must, in a light most favorable to the party prevailing below.” In re Estate of Mettee, 10 Kan. App. at 187. In Churchill v. Dill, the Kansas Supreme Court stated:
“When it is shown that a testator had possession of his will for some months immediately prior to his death, and it cannot be found after his death, there is a presumption that he revoked it. This presumption may be rebutted by competent evidence.” 145 Kan. 306, Syl. ¶ 1.
The parties have stipulated that Mary had possession of her will prior to her death. Thus, the presumption applies. On appeal, our only task is to determine whether there was competent evidence to rebut the presumption.
In In re Estate of Mattee, 10 Kan. App. 2d at 187, this court stated: “If the testator’s intent to revoke is rebutted, the will is deemed lost.” Therefore, the proponents of a lost will may satisfy their burden by presenting competent evidence that the decedent did not intend to revoke the will. Churchill v. Dill, 145 Kan. at 308-09.
Mahoney argues the only evidence actually challenging the presumption of revocation is the oral testimony of the Louis Kasper family. Mahoney would have us reweigh the evidence and pass on the credibility of the witnesses. To do so, however, would require us to abandon the familiar rule of appellate review that “[i]n reviewing the decision of a trial court, this court must accept as true the evidence and all inferences to be drawn therefrom to support the findings of the trial court, and must disregard any conflicting evidence or other inferences that might be drawn therefrom.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, 378-79, 855 P.2d 929 (1993). See State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993). “The appellate courts are not to reweigh the testimony or pass on the credibility of the witnesses.” McKissick v. Frye, 255 Kan. 566, Syl. ¶ 8, 876 P.2d 1371 (1994).
Louis and John presented sufficient competent evidence of Mary’s intent not to revoke her will to rebut the presumption. Numerous witnesses testified Mary was very upset with the members of the Jim Kasper family. So much so, that she executed a new will in 1991 excluding Mahoney and her siblings. Mahoney does not deny that Maiy was upset with the Jim Kasper family, nor does she deny that Maiy’s disdain led to the creation of the 1991 will.
Mahoney contends that sometime between Februaiy 10, 1992, and Januaiy 7, 1993, the date that Mary entered the hospital and lost access to the will, Maiy had a change of heart. Mary’s actions, however, support the opposite conclusion. The incidents at the hospital and nursing home are perhaps the most illustrative. Mary was visibly upset, even distraught, by Jim’s visit. She ordered that flowers sent by Jim be removed from the room. These acts do not support the conclusion that Mary intended to revoke her will, allowing the members of the Jim Kasper family to inherit a third of her estate through intestate succession. The trial court’s finding that Mary’s anger toward die members of the Jim Kasper family did not abate before her death is certainly supported by competent evidence.
The majority of Mahoney’s arguments in support of applying the presumption of revocation stem from Louis and John’s inability to account for the absence of the original will. However, their inability to account for the absence of the original is not dispositive. In Churchill v. Dill, the testator’s will was last seen in his possession. After his death a search was made for the will, but it could not be found. Nonetheless, the court affirmed the lower court’s holding that the presumption of revocation had been rebutted and allowed a copy of the will to be admitted to probate.
Ample evidence was presented to show Mary had a habit of misplacing important papers. In fact, on numerous occasions members of her family would have to search her house just to locate the bank statements necessary to do her taxes. Under the facts of this case, given the animosity Maiy felt toward the Jim Kasper family, and the fact John and Mary Vopat provided for Mary’s business needs and day-to-day comfort and maintenance, the trial court’s conclusion the will was lost will not be disturbed.
Louis and John’s main evidence consisted of statements made by Mary that reaffirm the provisions of her will and rebut the inference she intended to revoke her will. Both John and Belinda presented evidence regarding conversations they had with Mary. The content of the two conversations is identical. John testified:
"A. [P]rior to her surgery I had a couple of conversations around Christmas time of last year that she wanted, two things that she was concerned about was the fact to make sure that she said you’ll see to it that — she referred to them as the three would not receive under the will and I said yes. And she also had a concern that her great nieces would receive the items of personal property that was added under the ‘91 will.”
Belinda recalled a conversation she had with Mary in December 1992. During that conversation, Mary said the members of the Jim Kasper family would get nothing under her will. In addition, Mary said Belinda’s children, Mary’s great-nieces, would be provided for in her will.
Mahoney entered timely and specific objections to the testimony of both John and Belinda. The trial court overruled those objections. On appeal, Mahoney contends that the trial court erred by allowing the testimony. According to Mahoney, the statements are inadmissible hearsay.
The Supreme Court has found “[e]ven in our most sharply contested will cases, declarations of the testator not made at or about the time the will was executed have been given evidential significance.” Fauser v. Jordan, 152 Kan. 407, 411, 103 P.2d 862 (1940). In Churchill v. Dill, the Kansas Supreme Court was presented with a situation almost identical to the one in this case. The court cited the following passage from Jackson v. Hewlett, 114 Va. 573, 580-81, 77 S.E. 518 (1913), with approval:
“ ‘It is difficult to see how, in a case like this, the presumption of revocation could be overcome except by evidence such as that here relied upon. It is impossible for the beneficiaries under the will to say what became of it; they can only assert that, whatever may have happened to it, the testator did not revoke it, and that the will was made, duly executed, and its contents clearly shown and conceded. There is not a scintilla of evidence that it was revoked, nor is there a cause suggested for revoking it. There is nothing to prevent its admission to probate as established except the presumption of revocation arising from the fact that it was last traced to the testator’s possession and not found after search at his death. It must be generally the case, in such a status, that the best evidence, if not the only evidence, that can be adduced to rebut the presumption of revocation is that the testator’s mind for many years contemplated a certain disposition of his property; that when he disposed of that property by will his mental attitude was precisely the same that it had been during those previous years, and that after he made such disposition his mind remained in the same state practically until his death, supplemented by the consistency of his mental attitude towards his various relatives. These are held to be proper facts and circumstances to be considered as against the presumption that such mental attitude and state of mind had changed. It would seem that the question as to whether there had been a change of mind could not be better determined than by the acts and declarations of the person whose mind is to be judged.’ ” 145 Kan. at 309-10.
Recognizing that the acts and declarations of the testator are “the best evidence, if not the only evidence, that can be adduced to rebut the presumption of revocation,” we turn to respondent’s assertion that the statements in question are inadmissible hearsay.
K.S.A. 1993 Supp. 60-460 defines hearsay evidence as “[e]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” According to K.S.A. 1993 Supp. 60-460, all evidence which fits within this definition is inadmissible, unless one of the many exceptions provided by the rule can be shown to apply. If the evidence of the statement does not fit within the definition of hearsay, our analysis ends and the evidence is admissible, provided the other rules of evidence are satisfied.
The evidence of the two statements made by Mary to Belinda do not fit within the definition of hearsay and were, therefore, admissible. The first statement was “they would get nothing.” The matter asserted in this statement is that Mahoney, Jim, and Susan would get nothing from Mary through her will. However, the statement was not offered to prove the terms of Mary’s will. It was offered to prove Mary did not have the requisite intent to revoke her will. Therefore, evidence of the statement was not offered to prove the truth of the matter stated, and it falls outside of the definition of hearsay as provided in K.S.A. 1993 Supp. 60-460.
Likewise, the second statement made by Mary to Belinda does not fit within the definition of hearsay. The exact statement is reflected in the following colloquy:
“Q. Did your aunt ever indicate to you that those children would be provided for?
“A. Yes.
“Q. In the will?
MR. HOLLAND: Objection, leading and suggesting.
THE COURT: Overruled.
MR. HOLLAND: Hearsay.
THE COURT: It’s discussion concerning the will.
MR. HOLLAND: It’s still hearsay.
“A. Yes.”
The matter asserted in this statement is that Belinda’s “children would be provided for in the will.” Again, the statement was not offered to prove that Belinda’s children would be provided for in the will. It was offered to prove that Mary did not intend to revoke her will. Therefore, in this context it is not hearsay.
The same reasoning would apply to John’s testimony which establishes essentially the same point regarding Mary’s lack of intent to revoke her will.
Although this ruling is dispositive, we also note the possible applicability of K.S.A. 1993 Supp. 60-460(1) should a stricter standard be applied and the above-mentioned conversations be deemed hearsay. K.S.A. 1993 60-460(1), an exception to the hearsay rule provides that the following type of hearsay statement is admissable:
“Unless the judge finds it was made in bad faith, a statement of the declarant’s (1) then existing state of mind, emotion or physical sensation, including statements of intent, plan, motive, design, mental feelings, bodily pain and bodily health, but not including memory or belief to prove the fact remembered or believed, when such a mental or physical condition is in issue or is relevant to prove or explain acts or conduct of the declarant” .... (Emphasis added.)
At oral argument, appellant argued that Thompson v. Norman, 198 Kan. 436, 444, 424 P.2d 593 (1967), and Laterra v. Treaster, 17 Kan. App. 714, 720, 844 P.2d 724 (1992), would bar the application of 60-460(1) to this case. We disagree.
Thompson involved a purported statement by a person, two weeks after an accident, that he was driving the automobile at the time of the collision. On the issue of the applicability of 60-460(1), the court found the state of mind of the declarant (who was not a party to the action) two weeks after the accident was immaterial to the issues involved. The court then found other hearsay exceptions which might have been applicable, were not properly pursued, or were within the trial judge’s discretion to allow under the facts of the case.
Laterra dealt with statements by a decedent that he intended to pay for his son’s college education. Since the court approved the admission of this statement under 60-460(1), we do not understand Mahoney’s citation of the case as support for her position.
Louis and John presented competent evidence to rebut the common-law presumption that the will had been revoked. Moreover, the provisions of the will were clearly and distincdy proven. The trial court’s decision was well supported by the evidence and will not be disturbed on appeal.
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Lewis, J.;
Defendant was convicted of possession of cocaine with intent to sell, possession of cocaine without a tax stamp, and obstruction of official duty. His sentences were enhanced under the Kansas Habitual Criminal Act, and he is presently serving concurrent terms of 8 to 30 years, 7 years, and 3 to 7 years for the crimes described above. This appeal involves the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1994 Supp. 20-4701 et seq.
On August 13, 1993, the Kansas Department of Corrections (DOC) issued its notification of findings to defendant. By that notification, defendant was advised that his drug conviction was a severity level 3 conviction and, as a result, he was ineligible for retroactive application of the KSGA.
On September 27, 1993, defendant filed a “Motion for Hearing Regarding Conversion of Sentence under Kansas Sentencing Guidelines Act.” This motion was denied without a hearing. On October 15, 1993, the trial court denied defendant’s motion to alter or amend its ruling. On November 2, 1993, defendant filed his notice of appeal.
JURISDICTION
The first issue we must resolve is whether we have jurisdiction. We advised the parties that jurisdiction was an issue by the following order:
“It appears that a request for hearing may be filed only after issuance of a Department of Corrections report and not a notification of findings. See K.S.A. 1993 Supp. 21-4724(c)(l). In addition, even if the defendant is allowed to file a request for hearing, it appears that the request in the present case was not filed within 30 days after issuance of the notification of findings and is untimely. See K.S.A. 1993 Supp. 21-472[4](d)(l).”
There is no question in this case that the appeal was not filed within 30 days after issuance of the notification of findings. If defendant’s only avenue of appeal was to appeal from the notification of findings, his appeal is untimely, and we have no jurisdiction.
The trial court in this case concluded it also had no jurisdiction to hear an attack against the KSGA because the statute does not give a defendant the right to attack a notification of findings.
K.S.A. 1994 Supp. 21-4724 does not provide any procedure for objecting to an offense severity classification contained within a DOC notification of findings. The statute does provide a procedure to object to a criminal history classification contained in a DOC guidelines report. See K.S.A. 1994 Supp. 21-4724(c)(l).
The inmate finds himself in a classic “Catch 22” situation. The statute discussed above does not require the DOC to prepare a sentencing guidelines report on an inmate whose conviction se verity level is such that retroactivity under the KSGA does not appiy.
This is the precise situation in which we find defendant. He was convicted of possession of cocaine with intent to sell. This is a severity level 3 conviction and, under the Act, defendant is not eligible for retroactive application of the sentencing guidelines.
Because his conviction was a severity level 3 conviction, defendant will not receive and DOC will not prepare a sentencing guidelines report. The determination of defendant’s status under the KSGA is fixed by the notification of findings, and defendant has no statutory right to attack those findings. The notification of findings places his conviction at a severity level 3, and he has no right, under the Act, to attack that notification. Because of that notification, no other reports will be prepared. Does this leave defendant without a remedy to a notification of findings report with which he does not agree? We conclude that it does not. We are not inclined to deny an inmate access to the courts to challenge his or her severity level classification. If that classification is incorrect for some reason, then an inmate might be required to serve an illegal or incorrect sentence with no remedy available to challenge that illegality. We do not believe that such a situation should exist.
We hold that an inmate may challenge his or her conviction severity level classification as set forth in the notification of findings by filing a motion pursuant to K.S.A. 60-1507. Under 60-1507, an inmate may challenge his or her conviction or sentence. The petitioner may challenge the mode or condition of his or her conditions of confinement, including administrative actions of the penal institution under the provisions of K.S.A. 60-1501. A 60-1507 petition is properly filed in the sentencing court, while a 60-1501 petition is properly filed in the county of confinement. Safarik v. Bruce, 20 Kan. App. 2d 61, 66-67, 883 P.2d 1211 (1994).
In Safarik, we discussed the method by which an inmate could challenge the DOC’s failure to issue a sentencing guidelines report and the determination that the inmate was not eligible for conversion of sentence under the guidelines.
“If KDOC failed to comply with the sentencing guidelines statutory mandate, such is an administrative act restraining petitioner’s liberty interest in having a sentencing guidelines report transmitted to the sentencing court. Such action is reviewable in the county of petitioner’s confinement through a petition seeking a writ of mandamus. The determination of petitioner’s criminal history classification and crime severity level, however, is a sentencing matter within the jurisdiction of the sentencing court under both K.S.A. 60-1507 and the Sentencing Guidelines Act.” 20 Kan. App. 2d at 67.
Circumstances shown in the instant matter are not the same as those shown in Safarik. However, we believe that the rationale is similar. The defendant in this case is not claiming that DOC failed to review his sentence. He is challenging its determination that his conviction for possession of cocaine with intent to sell is a severity level 3 felony on the drug offense grid. This determination excludes him from that pool of inmates entitled to receive a sentencing guidelines report and excludes him from eligibility for retroactive application of the sentencing guidelines. The fact is, either defendant is eligible for conversion of his sentence or he is not eligible. The determination of which of those two alternatives applies can only be determined by the sentencing court. The sentencing court would have jurisdiction to consider this challenge under K.S.A. 60-1507.
By proceeding with a petition pursuant to K.S.A. 60-1507, defendant can seek and obtain judicial review of the severity level classification of his sentence by the DOC. We conclude that under the KSGA, there is no such right to a review of a notification of findings and that resort to K.S.A. 60-1507 must be sought.
We recognize that in this case defendant’s pleadings are not styled as a 1507 petition. This may not be technically correct. However, we have said that Kansas courts will look past the form of an action to its substance in situations where circumstances show K.S.A. 60-1507 would provide the appropriate remedy. See State v. Logan, 9 Kan. App. 2d 353, 354, 678 P.2d 181, aff’d as modified 236 Kan. 79, 689 P.2d 778 (1984); Barr v. State, 8 Kan. App. 2d 173, 651 P.2d 975, rev. denied 232 Kan. 875 (1982).
We conclude that the trial court should have construed defendant’s petition as a petition pursuant to K.S.A. 60-1507. Ac cordingly, we hold that the trial court erred in concluding that it had no jurisdiction.
Although the trial court did err in concluding it did not have jurisdiction, we hold that it was not reversible error. Defendant is not entitled to relief on the merits of his argument. Defendant does not argue that the DOC made an incorrect determination of his severity level classification. Rather, defendant argues that his exclusion from the retroactivity operation of the KSGA violates his Fifth Amendment right to equal protection of the laws under the Constitution.
The merits of the argument defendant raised before the trial court have been decided against defendant by Chiles v. State, 254 Kan. 888, 869 P.2d 707, cert. denied 115 S. Ct. 149 (1994), and State v. Jones, 19 Kan. App. 2d 913, 878 P.2d 845, rev. denied 255 Kan. 1005 (1994). Those cases have determined that the limited retroactivity provisions of the KSGA are not unconstitutional or violative of the Equal Protection Clause.
Defendant acknowledges Chiles but contends it was wrongfully decided. He asks this court to overrule Chiles. We are duty bound to follow the laws established by the Kansas Supreme Court decisions, absent some indication the Supreme Court is departing from its previously expressed position. Gruhin v. City of Overland Park, 17 Kan. App. 2d 388, 391, 836 P.2d 1222 (1992). There is no indication the Supreme Court is departing from the position announced in Chiles. Because of the Chiles and Jones decisions, the motion, files, and records of this case conclusively show that defendant is entitled to no relief. ‘When the trial court reaches the correct result based upon the wrong reason, this court will affirm the trial court.” Cabral v. State, 19 Kan. App. 2d 456, Syl. ¶ 9, 871 P.2d 1285, rev. denied 255 Kan. 1000 (1994).
In summary, we hold as follows: (1) The KSGA provides no method whereby an inmate may challenge the notification of findings issued by the DOC when the DOC concludes that because of the severity level of the inmate’s conviction, he or she is not entitled to retroactive application of the KSGA. (2) An inmate may challenge his or her exclusion from the retroactivity pool under the KSGA by filing an action pursuant to K.S.A. 60-1507 in the sentencing court. (3) The trial court should look past form to substance and construe an inmate’s pleading as a 60-1507 petition where circumstances show that 60-1507 is the appropriate remedy. (4) The trial court erred in this case in holding it had no jurisdiction to hear defendant’s challenge to his exclusion under the Kansas Sentencing Guidelines retroactivity pool. The petition should have been construed as filed pursuant to K.S.A. 60-1507. (5) In this case, defendant’s only challenge to his exclusion from the retroactivity pool of the Kansas Sentencing Guidelines was based upon a violation of his right to equal protection of the laws. The issues raised by defendant in this regard were decided adversely to him in Chiles v. State and Jones v. State, as previously cited, and this court adheres to those decisions. (6) The files and records of this action show conclusively that defendant was not entitled to any relief. For that reason, the trial court is affirmed as having been right for the wrong reasons.
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